IN THE HIGH COURT OF JUSTICE BETWEEN. George Ojar. Narendra Ojar Maharaj. And

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. CV BETWEEN George Ojar Narendra Ojar Maharaj And Claimants Liloutie Deosaran also called Shirley Badal Deosaran also called Shirley Liloutie Deosaran- Badal Indroutie Deosaran Kaloutie Deosaran Heerawatie Ojar also called Heerawatie Deosaran Chieredan Badal And Caren Ojar Atwaroo Defendants/Ancillary Claimants Ancillary Defendant Before the Honourable Mr. Justice Ricky Rahim Appearances: Mr. S. Jairam SC instructed by Ms. A. Khan for the Claimants. Mrs. L. Maharaj SC instructed by Ms. G. Seecharan for the Defendants/Ancillary Claimants. Mr. R. Dowlath for the Ancillary Defendant.

2 Ruling on Application dated 30 th April By Notice of Application dated 30 th April 2013, the Ancillary Defendant applied for an order that: i. The Third Party Statement of Case dated the 17 th November 2011 be struck out as it discloses no grounds for bringing the claim against the Ancillary Defendant; ii. In the alternative, that Summary Judgment be entered in favour of the Ancillary Defendant on the ground that the Defendants/Ancillary Claimants have no realistic prospect of success on the ancillary claim; iii. In the alternative that time limited for filing of witness statement be extended from 30 th April 2013 to a date to be fixed. Background 2. The claim relates to a three acre parcel of land situate in St. Ann s (the said parcel). According to the Claimants, by Deed of Assent No of 1972 dated 6 th April 1972, Basso Kanhai as Administratrix of the estate of Deo Saran Kanhai (her husband) transferred the said parcel in the following portions: one-third share to herself, and the remaining two-thirds to the first to fourth Defendants as joint tenants. 3. The Claimants further aver that by Deed of Conveyance No of 1990 dated 5 th September 1990 Basso Kanhai transferred her undivided one-third share in the said parcel to the Second Claimant and the Ancillary Defendant. By Deed of Conveyance No. DE dated 11 th December 2004 the Ancillary Claimant transferred her undivided share in the said parcel to the First Claimant. 4. By Deed of Conveyance No. DE dated 1 st February 2006 the First Defendant transferred her undivided share in the said parcel to the Fifth Defendant and retained a life interest for herself. 2 P a g e

3 5. The Defendants/Ancillary Claimants in the main argue that the deed purporting to transfer the undivided one-third share of Basso Kanhai to the Second Claimant and Ancillary Defendant is null and void. In this regard it is contended that the thumb print appearing on the said deed is not that of Basso Kanhai. In the alternative, it is argued that if it is found that the thumb print was Basso Kanhai s, it was procured by undue influence and/or fraud. 6. By the ancillary claim of the 17 th November 2011, the Defendants/Ancillary Claimants sought the setting aside of Deed No of Application to set aside Third Party Statement of Case dated the 17 th November The ground upon which this application was made was that the Defendants/Ancillary Claimants have no locus to issue an ancillary claim against the Ancillary Defendant in respect of Deed No of In this regard, the Ancillary Defendant argues that Basso Kanhai died on the 17 th November 1999 and no grant of administration has been issued to the Defendants/Ancillary Claimants in the estate of Basso Kanhai. Accordingly, the Third Party Statement of Case disclosed no grounds for bringing the claim. 8. It is to be noted here that the First to Fourth Defendants/Ancillary Claimants are the daughters of Basso Kanhai and the Fifth Defendant/Ancillary Claimant is the granddaughter of Basso Kanhai. 9. The power to strike out the whole or part of a statement of case is found in Rule 26.2 and the Claimant relies on 26.2(1)(c) for this application. 10. The Ancillary Defendant submitted that in law a deceased s assets vests in the executor of the estate (in testacy) and in the administrator general (on intestacy). Thus, in the event that the deceased had any interest in the said parcel then on her death her interest would vest either in her executor or the administrator general as the case may be. It is the Ancillary Defendant s submission that the deceased interest does not vest in the 3 P a g e

4 Defendants/Ancillary Claimants by reason of them being the deceased s next of kin and the relation in itself does not entitle them to the reliefs sought. Thus, it is contended that since the Defendants/Ancillary Claimants have neither a grant of probate nor letters of administration and have brought the claim in their personal capacity, they lack the proper locus standi to institute any action in relation to any purported interest of the deceased in the subject property. 11. The Claimants have in principle agreed with the submissions of the Ancillary Defendant and submitted that: i. The subject matter of the claim of the Defendants/Ancillary Claimants touches and concerns property which belonged to Basso Kanhai; ii. The Defendants/Ancillary Claimants have no locus standi to commence any action (either a counterclaim or and ancillary claim) to set aside the Deed of Gift made by Basso Kanhai; iii. To allow the Defendants/Ancillary Claimants to proceed with litigation for this purpose would also be a blot on the administration of justice; iv. The fact that the Defendants/Ancillary Claimants are next of kin of Basso Kanhai is immaterial since without a Grant of Letter of Administration their claim is a nullity; v. Without a Grant of Letters of Administration of the Estate of Basso Kanhai the Defendants/Ancillary Claimants have no right to act on her behalf whether they are seeking declarations or otherwise. 12. The Defendants/Ancillary Claimants have admitted in their affidavit in response dated 3 rd June 2013 admitted that they have not obtained Letters of Administration. 13. Notwithstanding this, it was contended by the Defendants/Ancillary Claimants that the ancillary claim and the counterclaim founded on equitable principles are claims which they are entitled to bring. Further, where they seek declarations as to their rights and title in relation to any Deed where as next of kin they would be the only persons entitled to 4 P a g e

5 benefit, the court has jurisdiction to hear and determine their claims and grant declarations as to their right and title. The Defendants/Ancillary Claimants submitted that the court had the power to make declarations at the instance of a claimant though he has no cause of action against the defendant: Re Lewis s Declaration of Trust; Lewis v Lewis; Lewis v Ryder [1953] 1 All ER 1005; Guaranty Trust Company of New York v Hannay & Company [1915] 2 K.B In Beverley Ann Metivier v The Attorney General of Trinidad and Tobago and others H.C.387/2007 Kokaram J explained at paragraph 4.7 and 4.8: 4.7 Of course, the power to strike out is one to be used sparingly and is not to be used to dispense with a trial where there are live issues to be tried. A. Zuckerman observed: The most straightforward case for striking out is a claim that on its face fails to establish a recognisable cause of action (Eg. A claim for damages for breach of contract which does not allege a breach). A statement of case may be hopeless not only where it is lacking a necessary factual ingredient but also where it advances an unsustainable point of law 4.8 Porter LJ in Partco Group Limited v Wagg [2002] EWCA Civ 594 surmised that appropriate cases that can be struck out for failing to disclose a reasonable ground for bring a claim include: (a) where the statement of case raised an unwinnable case where continuing the proceedings is without any possible benefit to the Respondent and would waste resources on both sides Harris v Bolt Burden [2000] CPLR 9; (b) Where the statement of case does not raise a valid claim or defence as matter of law 5 P a g e

6 15. The court agrees with the submissions of the Ancillary Defendant that in law a deceased s assets vests in the executor of the estate (in testacy) and in the administrator general (on intestacy). Thus it is agreed that in the event that the deceased had any interest in the said parcel then on her death her interest would vest in the administrator general (as she had died intestate). Thus if the deceased had an interest in the said parcel in order for the Defendants/Ancillary Claimants to deal with the said parcel on behalf of the estate of the deceased it is necessary first for the Letters of Administration to be obtained. 16. The court is of the view that the ancillary claim and the counterclaim are brought in the Defendants /Ancillary Claimants personal capacity on the basis that the deed is void by reason of undue influence and/or fraud. Should the Defendants/Ancillary Claimants be successful in this claim the interest purported to have been transferred by Deed No of 1990 would revert to Basso Kanhai and by reason of her death devolve to her estate. It is only in the event of this occurrence that the Defendants/Ancillary Claimants would be able to deal with the said interest but only upon obtaining administration. Put another way what is before the court in essence is the question of whether the deceased holds or held an interest in the said parcel at all, on the basis of the invalidity of the said deed. The Defendants/ Ancillary Claimants are not representing the estate of the deceased. They act in their personal capacity in that they will be affected by the outcome of such claim in their capacity as beneficiaries of the estate. This is quite a different thing from acting as a representative of the estate of the deceased. 17. Thus the court is therefore of the opinion that in so far as the Defendants/Ancillary Claimants seek relief against the Ancillary Defendant personally, the Third party Statement of Case does disclose grounds for bringing the claim. However in so far as the Defendants/Ancillary Claimants seek relief to deal with the said parcel in their representative capacity the action would be incompetent. 6 P a g e

7 18. The power to strike out is one to be used sparingly and is not to be used to dispense with a trial where there are live issues to be tried. The court finds therefore that this is such a case where there are live issues to be tried. Application for Summary Judgment 19. By the Ancillary Defendants application for summary judgment on the ground that the Defendants/Ancillary Claimants have no realistic prospect of success on the ancillary claim the Ancillary Defendant must satisfy the court that the Defendants/Ancillary Claimants have no real prospect of succeeding at trial on the ancillary claim: Western United Credit Union Co-operative Society Limited v Corine Ammon Civil Appeal No. 103 of 2006; Toprise Fashions Ltd. v Nik Nak Clothing Co. Ltd., Nik Nak (1) Ltd., Anjum Ahmed [2009] EWHC 1333(Comm) 20. At paragraph 16 of the judgment in Toprise Fashions Ltd (supra) the court provided the following useful guidance: The court must consider whether the Defendant has a realistic as opposed to fanciful prospect of success: Swain v Hillman [2001] 2 AER 91 A realistic defence is one that carries some degree of conviction. This means a defence that is more than merely arguable: ED &F Man Liquid Products v Patel [2003] EWCA Civ 472 at 8. In reaching its conclusion the Court must not conduct a mini trial Swain v Hillman (supra): This does not mean that the court must take at face value and without analysis everything the Defendant says in his statements before the court. In some cases it may be clear there is no real substance in the factual assertion made, particularly 7 P a g e

8 if contradicted by contemporaneous documents: ED &F Man Liquid Products v Patel (supra) However in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment but also the evidence which can reasonably be expected to be available at trial Royal Brompton NHS Trust v Hammond (No 5) [2001] EWCA Cave 550 Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR The Defenants/Ancillary Defendants defence in the main is that Basso Kanhai had deteriorated significantly in health at the time of the execution of Deed No of 1990 purporting to transfer her share in the said parcel to the Second Claimant and the Ancillary Defendant. The court is of the view that the ancillary claim is in the circumstances more than merely arguable. 22. The Ancillary Defendant has proposed only the locus argument in her submissions to support the applications made. The court is of the view thus that on this basis the Ancillary Defendant has failed to satisfy the court that the Defendants/Ancillary Claimants have no real prospect of succeeding at trial on the ancillary claim. This is particularly so in light of the court s findings on the locus standi of the Defendants/Ancillary Claimants. 8 P a g e

9 23. The court has considered the evidence actually placed by the Ancillary Defendant before it on the application for summary judgment is not satisfied that summary judgment ought to be granted. Further, the court has considered the evidence which can reasonably be expected to be available at trial in further proof of the Defendants/Ancillary Claimants claim that the thumb print did not belong to Basso Kanhai or that if it did that it was induced by undue influence or fraud, and is of the view that a fuller investigation of the facts is required at trial. 24. The application for summary judgment is therefore refused. Extension of time limited for filing of witness statement 25. This issue application for an extension was dealt with separately prior to this ruling so that the issue of an extension of time does not now arise. Disposition 26. The order of the court is therefore as follows: i. The application dated 30 th April 2013 to strike out the ancillary claim is dismissed. ii. The application for summary judgment is dismissed. iii. The Ancillary Defendant shall pay to the Defendants/Ancillary Claimants the costs of the application to be assessed at the determination of the claim in default of agreement. Dated this 18 th day of July 2013 Ricky Rahim Judge 9 P a g e