Mr Esan Granderson and Ms Smart for the Second and Third Defendants

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV BETWEEN ALVIN BERNARD PATRICIA BERNARD FIRST CLAIMANT SECOND CLAIMANT AND SALLY BUTE (The Sole Executrix Named In The Last Will And Testament Of Emmanuel Danclair, Deceased) ANDERSON GUY TRILLIBERTY LIMITED FIRST DEFENDANT SECOND DEFENDANT THIRD DEFENDANT Before The Honourable Mr Justice R. Boodoosingh Appearances: Mrs Reah Sookhai-Doodnath for the Claimants Mr Esan Granderson and Ms Smart for the Second and Third Defendants Dated: 25 July 2012 Page 1 of 10

2 REASONS 1. This case concerns a plot of land in Arima at No. 8 Simone Street, Arima. The claimants say they entered into an agreement with one Emmanuel Danclair, now deceased, to buy the plot of land. They paid down on the land. They went into possession with Emmanuel s permission and they were put out of possession by the second and third defendants. They say they are entitled to a declaration that they are the legal owners. 2. The first defendant is the executrix of the estate of Emmanuel. She is a defendant because it is her responsibility to effect the transfer of the lands. The difficulty is that by a Memorandum of Transfer dated 27 July 2005, Emmanuel is said, by the second and third defendants, to have transferred the land to his son, Michael Danclair, having given him a power of attorney who in pursuance of that power of attorney, then transferred the land to himself. Michael Danclair, the second and third defendants say, subsequently sold the land to them by giving a power of attorney to Flavius Sebro who transferred the property to them. 3. The claimants thus ask that that Memorandum of Transfer be set aside as they say the original power of attorney was done by fraud and everything that followed was tainted. 4. The claimants say they were also put into possession of the lands by Emmanuel after they paid a deposit. They built a foundation on the land for their house and expended a considerable amount of money. Persons acting under the authority of the second defendant came onto the land and destroyed the foundation. There is no dispute that the foundation was destroyed by the agents of the second defendant. Page 2 of 10

3 5. The second and third defendants say they are the legal title holders; there was no fraud; and the claimants induced and took advantage of Emmanuel to enter into the agreement for sale and purchase of the lands. 6. I should note that the first defendant gave evidence for the claimants and has supported their case. 7. The evidence was that on 21 April 2005 Emmanuel executed a power of attorney to his son, Michael, at the Port of Spain General Hospital. Michael, pursuant to this power of attorney, transferred the plot of land to himself and then allegedly sold it through his power of attorney given to Flavius Sebro. 8. Everything about the power of attorney to Michael is suspicious. It is common ground that Emmanuel Danclair had suffered a stroke a few days before and this is why he was hospitalised. According to Falvius Sebro, a witness for the second and third defendant, Emmanuel had lost feeling on his right side up to the time the power of attorney was executed. His right hand would have had to be used. Nevertheless, his right thumb print that was placed on the power of attorney. What is more, the attorney who purportedly took execution of the power of attorney, Mr Mervyn Mitchell, was not called to give evidence and no explanation was given for this failure. The power of attorney was also purportedly executed in the attorney s office. No witness to the power of attorney was called. Further, Emmanuel Danclair s conduct before and after this power of attorney, showed a contrary intention to granting such power to his son which included the power to transfer the property in question to himself. It is clear, and I find on a balance of probabilities, that Emmanuel was not able to execute a power of attorney on the day in question. That power of attorney raises serious questions relating to the circumstances in which it was made. It is absolutely clear from all the evidence that Emmanuel did not voluntarily execute that Power of Attorney. Page 3 of 10

4 9. I have no hesitation in holding that that Power of Attorney should be set aside and be declared invalid. It follows from this that Michael Danclair had no authority to convey Emmanuel s property to himself and then after that to anyone else. 10. I also find that Emmanuel did not know the property was transferred to his son. He continued to act as if it was his own. 11. I also find that Emmanuel properly entered into an agreement for the sale of the property to the claimants on 10 November I accepted the evidence of Mrs Seemungal, attorney-at-law, in this regard. This evidence was supported by that of the witnesses Mr Serapio, the first defendant, and Mr L.K. Doodnath, attorney-at-law. 12. In pursuance of this agreement, the claimants paid the sum of $90, as a deposit. A further payment of $43, was made after which the Memorandum of Transfer was executed. 13. On this payment, I find that the claimants entered into the property with the consent of Emmanuel, and they then maintained and expended money on the construction of the foundation for their home. They were quite properly then the occupiers of the property. The Memorandum of Transfer was in their name. They were there with the true owner s consent. They would therefore be entitled to bring a claim for trespass. 14. Further, Emmanuel had a will dated 24 February 2003 in which he had left the property to his son Michael. There is clear and unchallenged evidence, which I accept, that on 16 June 2005, Emmanuel gave instructions to attorney-at-law, Mrs Hayma Ramdhanie-Seemungal, to Page 4 of 10

5 destroy the earlier will. This suggested a clear intention on his part about what he intended to do regarding the property, at least in relation to his son, Michael Danclair. 15. I came to these conclusions based on my assessment of the evidence presented by both sides. I will make a few brief comments about the witnesses. Witnesses 16. I was impressed by the evidence of Rawlins Serapio. I found him to be independent, a church brother, as he described himself, to Emmanuel. He took Emmanuel in for several months after his stroke for no benefit. He gave evidence that Emmanuel could not speak properly after he left the hospital. He took time to recover. I accepted his evidence also that Emanuel did not want to return home with his son Michael. 17. Mr L.K. Doodnath, attorney-at-law, gave evidence. I found no reason to disbelieve this witness. I also found his observations of Emmanuel showed that he knew, fully well, what he was doing in seeking to sell the property to the claimants, even though Emmanuel was an aged person. It is also clear that Emmanuel had recovered significantly after the stroke to know what he was doing. 18. I found no evidence that the claimants put pressure on Emmanuel to sell them the land. They acted, at the highest, as interested buyers pursuing a purchase. It is clear that Emmanuel wanted to sell the land. He was prepared to receive the down-payment and receive the remainder as per the arrangement. Page 5 of 10

6 19. It was suggested to Sally Bute that she had pressured Emmanuel to disinherit Michael. There was no evidence of this from the defendants, however. The evidence of Mrs Seemungal goes a long way to rebut this suggestion. 20. I did not find it unusual, as contended by the attorneys for the second and third defendants, that Mrs Seemungal asked for a medical report given Emanuel s age and previous illness. It was the prudent thing to do in these circumstances. 21. Given all the evidence, I found the evidence of the second claimant to be believable that Emmanuel said he had prayed about selling the property to them for the price he did. The defendant s witness, Ms Sebro, supported that she knew Emanuel was an honest man. From everything she knew of him, he would not lead the claimants to think he was selling his land to them and then secretly make arrangements with his son. 22. The second defendant called evidence of Andrew Lewis and Trevelyn Singh to support the case that Michael and Emmanuel had a good relationship. I concluded that both of them were witnesses of convenience and did not know the true circumstances. In particular, Lewis gave evidence that Michael was here in 2007 for about the whole year to take care of his father when both Michael and Emmanuel had died in Singh gave evidence that he used to visit Emmanuel. He couldn t remember when he visited. He did not know he was in hospital. He spoke of visiting him at home but Emmanuel was not at his home for several months when he came out of the hospital. 23. The second defendant s evidence was also not believable. In cross examination, there was much he did not know even though he was the person allegedly buying the property. He did not visit the property before he decided to buy it. He couldn t say how much deposit he Page 6 of 10

7 was paying. He was not aware if in October 2006 construction was taking place on the property. He said a cheque was paid. He did not produce a copy of the cheque. He could not say who the cheque was made out to. He said he did not think he paid off the money in 90 days as per the agreement. He got the Certificate of Title on 3 November However, the money had not been paid to Flavius Sebro, who held a power of attorney for Michael, up to then. He did not know Michael was in the hospital. 24. This witness sought to gain cover by saying his attorneys were handling the matter. He had received a letter dated 28 February from the claimants attorneys. He did not respond to it. Instead, he moved in 4 days later to destroy what was on the property. 25. Flavius Sebro held Michael s power of attorney. She gave evidence that Emmanuel had lost feeling to his right side when the power of attorney from Emmanuel to Michael was done. She said the agreement for sale was made on 13 October Michael was ill in New York. The time for completion was 90 days. The balance of the money was not paid until over a year later in December 2007, according to her. The property was transferred on 3 November 2006, she says on the instructions of Michael. It was a matter of dispute whether Michael died on that same day or the day after. The defendant s witness, Michael Sebro, maintained he died on 3 November This is significant as the power of attorney would have ended. Flavius Sebro says it is a coincidence that he died the day after. She said she passed on the money to Michael Danclair s family. 26. In my view, the witnesses for the second and third defendants were all discredited in different ways. The evidence suggested that there was an indecent haste to complete the transfer before Michael died even though the time for the agreement had not yet passed. In fact, only two weeks had passed from the signing of the agreement. There is no supporting evidence that any money had passed for the property by the second and third defendants, even Page 7 of 10

8 though Flavius Sebro said she received it in December No agreement was produced to extend the time for completion. Just as the power of attorney from Emmanuel to Michael was highly suspect, so too was this Memorandum of Transfer. The evidence is that Michael was in the hospital on his death bed. 27. For these reasons I rejected the case of the second and third defendants and accepted the case of the claimants on a balance of probabilities. I preferred their evidence and that of their witnesses. 28. The claimants are entitled to a declaration that they are the legal title holders or alternatively they hold an equitable interest in the property at 8 Simeon Avenue, Arima described in the Claim Form. 29. I declare that the Memorandum of Transfer dated 27 July 2005 between Emmanuel Danclair and Michael Danclair is null and void. The power of attorney which purportedly permitted Michael Danclair to deal with the property was executed in highly suspicious circumstances which give rise to a finding of fraud and that it was not his voluntary act. 30. I order that the first Defendant as executrix of the estate of Emmanuel Danclair must execute a Memorandum of Transfer to the claimants after payment of the remainder of the purchase price by the claimants as per the agreement for sale dated 10 November The second and third defendants are restrained whether by themselves, their servants or agents from trespassing on the said lands. Page 8 of 10

9 32. The second and third defendants whether by themselves, their servants or agents are restrained from being in occupation or interfering in any way with the claimants occupation of the said lands. 33. The final matter concerns compensation for trespass by the second and third defendants and the losses occasioned by their destruction of the foundation and building works which had been undertaken by the claimants. 34. The first claimant, at paragraph 26 of his witness statement, made a list of sums of money he says he expended in the construction of the foundation works which were destroyed by agents of the second and third defendants. These were clearly estimates. All the figures except for two were rounded off to the nearest thousand dollars. Receipts were not provided for the labour costs. Receipts were produced that added up to approximately $12,000.00, although the first claimant says it added up to over $27, representing purchase of materials. The claimants estimate also claimed for sums which in any event he would have had to pay for and which would have been unaffected by the actions of the second and third defendants. These included cost of building plans, cost of maintenance of the property, and for excavation works. contractor. No reason was advanced for not putting in receipts by the building 35. On the other hand, photographs showed that there was a foundation built which was destroyed. Given the failure, from an evidential point of view, the best the court can do is to make a conservative award for compensation. This takes account of the manner in which the second and third defendants acted in using self help. I order the second and third defendants pay compensation in the sum of $30, to the claimants. Interest at 6% per annum will run from the date of the entry of appearance by the second and third defendants. Page 9 of 10

10 36. The second and third defendants will pay the claimants costs in the sum of $14,000. Ronnie Boodoosingh Judge Page 10 of 10