IN THE HIGH COURT OF JUSTICE PORT OF SPAIN IN THE MATTER OF THE PARTITION ORDINANCE CHAPTER 27 NO. 14 AND

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO Claim No. CV IN THE HIGH COURT OF JUSTICE PORT OF SPAIN IN THE MATTER OF THE PARTITION ORDINANCE CHAPTER 27 NO. 14 AND In the Matter of All and Singular that piece or parcel of land situate in the Ward of Chaguanas, in the island of Trinidad comprising NINETEEN THOUSAND FIVE HUNDRED AND TEN SUPERFICIAL FEET (being portion of a larger parcel of land comprising Three Acres described in Deed registered as No.8123 of 1973) and bounded on the North by lands of Fitzwilliam then Scotts and others, on the South by lands of Lewis Ebenezer now Morris and by a Road Reserve 24 feet wide, on the East by Lot 2 and on the West by lands now or formerly of Fitzwilliam BETWEEN DEVICA RAMPERSAD-GIRDHARRIE INDIRA RAGOONANAN AND ISHWAR RAMPERSAD First Claimant Second Claimant Defendant Before the Honourable Mr Justice Kevin Ramcharan Date of Delivery: June 20, 2018 APPEARANCES: Ms Samantha Marajh Attorney at Law for the Claimants Mr Shastri Ramtahal Attorney at law for the Defendant Page 1 of 5

2 REASONS FACTUAL BACKGROUND 1. This is an application dated the 30 th January 2018 by the Defendant to strike out the Claimants Statement of Case pursuant to Rule 26.2(1)(b) and (c) of the Civil Proceedings Rules. This rule provides for the striking out of a Statement of Case where it is an abuse of process, or where it discloses no reasonable cause of action. 2. The claim by the Claimants is essentially for an order of partition for a parcel of land owned by the parties jointly, and in which the Defendant resides. The Claimants first offered to sell their share to the Defendant, or sell the property after a valuation. The Defendant counter-proposed that the Claimants buy out his share, or have the property valued and sold. 3. A valuation was conducted by Messrs Raymond and Pierre Ltd, and the property was valued at $2,000, Subsequent to this the Claimants then offered to sell the Defendants their respective shares at a price of $500,000 per 1/3 share, or conversely to purchase the Defendant s share at $500, The Defendant refused the offer to buy his share at $500, and subsequently, the Claimants withdrew their offer to sell their respective shares at $500, per share. 4. In their letter withdrawing the offer, the Claimants also proposed that the land be put up for sale forthwith using any one of the following real estate agents: (a) The Real Estate Centre ; (b) Terra Caribbean Ltd ; or (c) Massy Realtors Ltd. The Defendant indicated that he would consent to the sale being conducted by Massy Realtors Ltd. The Defendant also left Page 2 of 5

3 the option of the Claimants buying out his share at 1/3 the valuation done by Raymond and Pierre Ltd. This correspondence was up to February Nothing happened after that until a letter dated 1 st May 2017 was sent to the Defendant requiring him to indicate whether he would consent to a partition of the property or a sale of the property with an equal distribution of the proceeds among the parties. GROUND FOR BRINGING A CLAIM 6. It would be more convenient to deal with the question of whether there is any ground for bringing the claim first under Rule 26(1)(c) first. The Defendant s contention in this regard is firstly that as there is no dispute between the parties, there is no question of any order being made to force a sale between the parties, and therefore there is no order for the court to make. 7. The Defendant also contends that in the alternative relief sought by the Claimants, that is to say, that the Defendant purchase the Claimants shares, the Ordinance does not provide for the Court compelling a coowner to purchase the shares of another co-owner. This submission is without doubt correct. 8. Having said that, I do not agree that a court can only make an order under the Partition Ordinance where there is an expressed unwillingness to sell the property. The Act and common law gives the court power to order either a partition or a sale, regardless of whether there is agreement between the parties or not. There is nothing in the Act, and no authority has been provided to suggest that the power only arises where there is a party who is unwilling to sell his share, or partition the land. Indeed, it is Page 3 of 5

4 to be noted that in several actions for partition, the Defendants will not object to a partition or an order for sale from the outset. In the circumstances, the Statement of Case cannot be struck out for disclosing no grounds for bringing the claim. ABUSE OF PROCESS 9. With respect to the issue of an abuse of process, the law relevant to this point is agreed between the parties. The thrust of the Defendant s argument being that there is no dispute to bring before the court, and therefore there is no need for this matter to be filed. The Claimants contend that there is need for the Court s assistance in this matter. 10. What is clear to the court is that for whatever reason, the parties have been unable to effect a sale of the property due to clear animosity between the Claimants and the Defendants. It is doubtful whether a sale could be properly effected without an order of the court. Indeed, this matter could have been easily compromised at the outset by agreeing to an order in terms of that arrived at in February 2017, that is to say, a sale conducted by Massy Realtors Ltd, with proceeds to be shared among the parties equally. Instead however, both parties have adopted an intractable position of non-cooperation. 11. Also, had the Defendant responded to the pre-action letter of the 1 st May 2017 by referring to the February correspondence, and proposing there and then that that course of action be adopted, there may have been no basis for the Claimants filing the Claim. No such action was done, and the Claimants could reasonably have inferred that the Defendant no longer wished to adopt that course of action. Page 4 of 5

5 12. It is for this reason that Court has come to the view that without the intervention of the court, and the force of an order of the court, whether by consent or not, the parties are not likely to be able to properly conduct the sale of the property. No blame is being ascribed to either party for this inability to come to an agreement, or perhaps more appropriately, blame can be ascribed to both parties for this state of affairs. 13. Be that as it may, this matter having engaged the attention of the court, and the court having jurisdiction under the Partition Ordinance and the Common Law to make an order in this matter, I am of the view that this matter does not constitute an abuse of process. CONCLUSION 14. Having said that, the Court is strongly of the view that this matter should not reach to trial. It cannot be beyond the parties to arrive at a position that can be entered as a consent order before the court, and with the force of an order, can be properly enforced. 15. In the circumstances, the application to Strike Out was dismissed with no order as to costs. Kevin Ramcharan Judge Page 5 of 5