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Trinidad and Tobago High Court |
] [Hide Context] THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
Claim No. CV2010-04559
BETWEEN
ZANIM RALPHY MEAH JOHN AND
Claimant
COURTNEY ALLSOP CLIFFORD KNOLLYS NICHOLAS INNISS
EDWARD WEEKES GRETA WEEKES VIJAI JAGLAL NAZMIN JAGLAL
Defendants
Before the Honourable Mr. Justice V. Kokaram
Appearances:
Mr. Jason Mootoo for the Claimant
Mr. Eric Etienne and Mr. Mervyn Campbell for the second
Defendant
JUDGMENT
1. The claims before the Court between the Claimant and the second Defendant concern their respective rights to ownership of a 14 acre parcel of land in
Mayaro1. The Claimant seeks declaratory relief that he is the registered freehold owner of the said property on the strength of his certificate of title Volume 2820
Folio 197. The Claimant purchased the said lands for the sum of $1.6m from one Gilbert Secundio Doppia on 12th February 2009. The second Defendant asserts in its Amended Defence and Counterclaim that he is the bona fide owner in possession of the said property by virtue of a deed of assent dated 11th June
1982 registered as no 12273 of 1982. The Defendant further claims that one
Cyril Doppia fraudulently registered the said property
under the provisions of
the Real Property Ordinance (now the Real Property Act “RPA”) on
21st October 1983 and recorded in the said certificate of title 2820
Folio 297. He seeks a declaration that a Therese Claudine Christopher
and
himself are the beneficial owners and entitled to possession of the said
property and that the said certificate of title
be declared void and be
delivered up for cancellation.
2. There are now two procedural applications before the Court. There is the
second Defendant’s application to re-amend his
defence and counter claim.
Then there is the Claimant's application for summary judgment on his claim and
to dismiss the Defendant’s
counter claim.
3. I have reviewed the authorities and submissions of both parties in this matter. It appears to me that the second Defendant in his amended Defence is simply asserting a right to ownership of the said lands by virtue of his title registered under the Conveyancing and Property Ordinance. It is accepted that this interest
was not registered under the RPA nor was his interest notified on the
certificate
1 The property is more particularly described in the Statement of Case as “situate in the Ward of Guayaguayare in the Island of Trinidad comprising Fourteen Acres Two Roods and Nine Perches be the same more or less delineated and coloured pink in the plan drawn in the margin of the Certificate of Title and bounded on the North, West and South by lands now or formerly of C.A. Pompignan and on the East by the Sea (hereinafter referred to as “the Land”).”
of title. In that state of affairs the Claimant’s title
supersedes that of the Defendant. The allegation of fraud
as pleaded as
against the Claimant in my opinion cannot be sustained. This allegation is based
upon a submission that the suspicion
of the Claimant should have been aroused
causing him to make further inquires to ascertain the true ownership of the
subject property
and the interest of the second Defendant in it. Even if this is
true it is not sufficient to succeed in a claim of fraud sufficient
to defeat
the indefeasibility of the RPA title as contemplated under section 141 of the
RPA.
4. Further there is no sustainable defence on the facts as pleaded of a
claim for adverse possession. In my view the submission that
these pleadings
make out a claim for adverse possession is an afterthought. The pleading falls
short of the requirements of rule
8(10.5) CPR to support a claim that a
possessory title is being asserted for the requisite period. Accordingly the
application to
re-amend to simply refer to the statute of limitation fails on
the basis that there is no foundational facts in the pleadings to
support the
plea, quite apart from the fact that such an application failed to cross the
threshold test of rule 20.3 CPR.
The “cla im s” of th e resp e ctive
parties:
5. The claim is a simple one. The claim is for a declaration that the Claimant is the registered freehold owner of a 14 acre parcel of land, the Esperance Estate. He also seeks injunctive relief again the second Defendant from entering upon or dealing with the land. The facts in support of the claim fall within a narrow compass. The Claimant purchased the said land by way of memorandum of transfer dated 12th February 2009 from Gilbert Secundio Doppia. The
memorandum of transfer was registered on 27th March 2009 in
volume 5113
Folio 9 and a memorial entered on the Certificate of title. The Claimant subsequently became aware of the second Defendant’s interest in the 14 acre parcel and a caveat was lodged by the second Defendant on 14th September
2010.
6. The claim was brought against several Defendants who purportedly acquired
title to several portions of the said property under
their respective Deeds of
conveyance. The second Defendant is the only one of the Defendants who claims
ownership to the entire 14
acre parcel. To the credit of the Claimant and the
other Defendants they entered into bilateral negotiations and compromised the
claims. Indeed the terms of those compromises represented a practical result for
those parties and what now remains for determination
is the Claimant’s
claim against the second Defendant and his counterclaim.
7. The second Defendant sets out the essence of his case in paragraphs 4, 5, 6 and 7 of his amended Defence and Counterclaim. Paragraph 4 refers to what I can conveniently refer to as the second Defendant’s chain of title as well as several leases granted over the years in relation to discrete portions of the entire
14 acre property. Paragraphs 5 to 7 set out the core of the defence and
counter claim as follows:
“5. By virtue of the matters pleaded at paragraph 2, 3 & 4
above, the second
Defendant says
a) That he is the bonafide owner in possession of the said
property
b) That the grant of the said property to Cyril Doppia, registered under the Real Property Ordinance Chapter 27 No. 11 on the 21st October
1983 and recorded in the Certificate of Title Volume 2820 Folio 197 was
obtained by fraud
PARTICULARS
v. Failing
a) To require the Registrar General at his expense to cause personal notices of his application to be served upon any person who’s name and address shall for that purpose be therein stated
b) To furnish a schedule of the said instruments c) To furnish an abstract of title
d) To state in his application the nature of his estate or interest and of every estate held therein by any other person whether at law or in equity in possession or in futurity or expectancy and whether the land is occupied or unoccupied.
e) To state the name and the description of the occupants of the said property and the proprietors of all lands contiguous to the said property
6. The Second Defendant says that
a) By virtue of the matters pleaded at 5 (a) and 5 (b) above
b) The fact that on the said property there are several well constructed and visible dwelling houses dating back to 1957 with market values in excess of One Million Dollars ($1,000,000.00) and, under leases by the heirs of the Second Defendant to the respective lessees as partially outlined in leases referred to in the particulars at paragraph
4 herein above. Photographs of the said properties are hereto attached and marked “A”
c) A perusal of the Application of Cyril Doppia to bring the said property under Real Property Ordinance would show the non- disclosure and irregularities including the alleged plan of the said property which on the face of it appeared to be similar if not identical to the plan attached to a Deed of the Second Defendant, Deed No. 1751 of 1957, a copy of the said Application of Cyril Doppia is hereto attached and marked “B”.
The Suspicion of the Claimant should have been aroused causing him to make
further enquiries to ascertain the true ownership of the
said property and the
interest of the Second Defendant.
7. By virtue of the matters pleaded in Paragraph 6 above, the Claimant would be deemed to have or had actual and or constructive notice of the fraud of Cyril Doppia in registering the said property under the provisions of the Real Property Ordinance on the 21st October 1983 and recorded in the Certificate and recorded in the Certificate of Title Volume 2820 Folio
197.”
8. I must also make mention of paragraph 6 of the Claimant’s Reply which the second Defendant made heavy weather during the course of submissions:
“6. In answer to paragraph 6 of the Defence the Claimant admits so
much of paragraph 6(b) of the Defence as alleges that a few visible
dwelling
houses are situate on the Lands but makes no admission as to the dates on which
such houses were constructed by reason of
the fact that he only became aware of
the existence of such houses shortly before he purchased the Lands. With respect
to the value
of such houses, the Claimant is unable to attribute any value
thereto as he is not suitably qualified to do so and he has not retained
the
services of a professional valuator to undertake such a valuation as it has not
been necessary for him to incur the costs of
so doing.”
9. For the purposes of my analysis I will accept that the allegations of the
second Defendant as pleaded in his defence and counter
claim can be made out at
a trial, and I also take into account the admission of the Claimant in paragraph
6 of the Reply. The
question that therefore arises is as follows
:Whether this Claimant, a purchaser acquiring title under the registered system
in 2009, is entitled to summary judgment where- the Claimant is in possession of
the said property; the said property was acquired
by the fraud of
Cyril Doppia in registering the said property in 1983; the Claimant had
knowledge of several leases and
houses of substantial value on the said
property and had he examined the application of Cyril Doppia he would have
realised
that the application was deficient and defective.
Summary Judgment
10. Pursuant to rule 15.2(a) CPR, the Court may give summary judgment on the whole or part of the Claimant’s claim if the Defendant has no realistic prospect of success on his defence to the claim or part of the claim. In Western Union Credit Union Co-operative Society Limited v Corrine Amman CA 103/2006
Kangalloo JA applied the English approach on applications for summary
judgment and gave the following guidance in dealing with applications for summary judgment:
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 and Patel [2003] EWCA
Civ 472 at 8.
In reaching its
conclusion the Court must not conduct a mini trial Swain v
Hillman [2001] 2 AER 91:
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 if contradicted
by
contemporaneous documents: ED & F Man Liquid Products v Patel EWHC
122
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 63.
11. Matters should not proceed to trial where the Defendant has produced
nothing to persuade the Court that there is a realistic prospect
that the
defendant will succeed in defeating the claim brought by the client. The
defendant cannot say without more that something
must turn up that would render
the Claimant’s case untenable. “To proceed in that vein is to invite
speculation and does
not demonstrate a real prospect of successfully defending
the claim.” See Bank of Bermuda Limited v Pentium CA 14 of 2003 (A
decision of the Court of Appeal of the British Virgin Islands)
12. As Lord Woolf MR pointed out in Swain v Hillman [2001] 1 AER 94
the exercise of the powers of summary judgment is consistent with the overidding
objective dealing with cases justly:
“It is important that a judge in appropriate cases should make use of
the powers contained in part 24. In doing so he or she
gives effect to the
overriding objectives contained in Part 1. It saves expense; it achieves
expedition; it avoids the court’s
resources being used up on cases where
this serves no purpose, and I would add generally, that it is in the interest of
justice.
If a Claimant has a case which is bound to fail, then it is in the
Claimant’s interests to know as soon as possible that that
is the
position. Likewise, if a claim is bound to succeed, a Claimant should know that
as soon as possible.”
13. The Claimant in his written and oral submissions argued essentially that the Claimant’s registered title is indefeasible and can only be impeached where fraud as meant in the context of section 141 of the RPA is established. He contends that on the pleaded case for the second Defendant no case of fraud within the meaning of section 141 has been made out and in any event there is no evidence which shows a realistic prospect of proving that the Client was guilty of fraud in acquiring his registered title to the land. The fraud that is the real
complaint of the Defendant is that of Cyril Doppia and that has nothing to do
with the Claimant.
14. The second Defendant contends that fraud is difficult to define and can
manifest itself in a variety of different contexts. It
is important therefore
when an allegation of fraud is made that the Court investigates the facts to
determine how that fraud was
perpetuated. The second Defendant also contends
that there is an arguable issue of adverse possession raised in the defence and
the
Claimant cannot therefore be entitled to summary
judgment.
Indefeasibility of title
15. The system of registration under the RPA proposes certainty and clarity
with respect to land ownership. The core feature of that
system is the
conclusiveness of the Register. There is no need to search root of title. A
purchaser of land under this system is
entitled to rely upon the register. All
interests in relation to the land are set out on the face of the
register.
“37. Every certificate of title duly authenticated under the hand and seal of the Registrar General shall be received, both at law and in equity, as evidence of the particulars therein set forth, and of their being entered in the Register Book, and shall, except as hereinafter excepted, be conclusive evidence that the person named in such certificate of title, or in any entry thereon, is seized of or possessed of or entitled to such land for the estate or interest therein specified, and that the property comprised in such certificate of title has been duly brought under the provisions of this Act; and no certificate of title shall be impeached or defeasible on the ground of want of notice or of insufficient notice of the application to bring the land therein described under the provisions of this Act, or on account of any error, omission, or informality in such application or in the proceedings pursuant thereto by the Judge or by the Registrar General.”
16. It is accepted that the general rule is that the title under our system
of registration is indefeasible. The register is conclusive
“45. Notwithstanding the existence in any other person of any estate or interest, whether derived by grant from the State or otherwise, which but for this Act might be held to be paramount or to have priority, the proprietor of land or of any estate or interest in land under the provisions of this Act shall, except in case of fraud, hold the same subject to such mortgages, encumbrances, estates, or interests as may be notified on the leaf of the Register Book constituted by the grant or certificate of title of such land; but absolutely free from all other encumbrances, liens, estates, or interests whatsoever, except the estate or interest of a proprietor claiming the same land under a prior grant or certificate of title registered under the provisions of this Act, and any rights subsisting under any adverse possession of such land; and also, when the possession is not adverse, the rights of any tenant of such land holding under a tenancy for any term not exceeding three years, and except as regards the omission or misdescription of any right of way or other easement created in or existing upon such land, and except so far as regards any portion of land that may, by wrong description of parcels or of boundaries, be included in the grant, certificate of title, lease, or other instrument evidencing the title of such proprietor, not being a purchaser or mortgagee thereof for value, or deriving title from or through a purchaser or mortgagee thereof for value.”
There are exceptions set out in the Act.
17. The person named in the certificate is declared to be the registered
proprietor.
This title is declared to be indefeasible except in case of fraud, subject to
the qualifications noted on the title and certain specified
statutory
qualifications. This case concerns the fraud exception to the indefeasibility of
title within the meaning of section 141
of the Act.
T he “f raud e xce p tion ” under Section 141
RPA
18. Section 141 of the RPA is clear in terms on the indefeasibility of title
under the system of registration:
“141. Except in the case of fraud, no person contracting or
dealing with or taking or proposing to take a transfer from the proprietor of
any estate or interest shall be required or in any manner concerned to enquire
or ascertain the circumstances under, or the consideration
for which, such
proprietor or any previous proprietor of the estate or interest in question is
or was registered, or to see to the
application of the purchase money or of any
part thereof, or shall be affected by notice, direct or constructive, of any
trust or
unregistered interest, any rule of law or equity to the contrary
notwithstanding, and the knowledge that any such trust or unregistered
interest
is in existence shall not of itself be imputed as fraud.”
19. In the High Court Action No. 75 of 2000 Lincoln Dillon v Mary Almandoz
and another Bereaux J as he then was made the following useful observations
about the system of registration which is useful in this analysis:
“It is a fundamental principle of the system of registered convincing
that the title of every proprietor registered there under
is “absolute
and indefeasible” and cannot be impeached or affected by the existence
of an estate or interest which, but for the registration, might have had
priority.
The Register is conclusive. All interests are set out on its face.
Nothing else is determinative. As Ploughman J. said in Parkash v Irani
Finance Ltd [1970] Ch.101, 109: “... one of the
essential features of registration of title is to substitute a system of
registration of rights for
the doctrine of notice”.
See also Walton J in Freer v Unwins Ltd [1976] Ch. 288, 297.
“... The general scheme of the Act is that one obtains priority
according to the date of registration, and one is subject, or
not subject, to
matters appearing on the register according to whether they were there before or
after one took one’s interest
whatever that interest might
be”.
[2] The system, introduced into Trinidad and Tobago by the Real Property
Ordinance, now the Real Property Act Chap. 56:02, (the Act) was
designed to produce and has produced, certainty in the grant of title to land
registered under the
Act. This has motivated many a proprietor of unregistered
land to bring such lands within the provisions of the Act.
[3] A purchaser acquiring land registered under the Real Property Act (the
Act) need thenceforth be concerned only with such interests as appear in the
Register and can ignore all other interests without
risk to his title, provided
that he is a bona fide purchaser for value. [5] The defendants, having purchased
the adjoining lands
as misdescribed, for (considerable) value, were guaranteed
an indefeasible title under the Act and the plaintiff is left without
remedy.
His only recourse, that is, pursuing a claim for compensation under section 148
of the Act, is now statute barred pursuant
to section 150 of the Act. The
plaintiff did have one other avenue and it was to claim adverse possession of
the particular portion
of land. Indefeasibility of title is subject to certain
stated exceptions in the Act. They include any rights of adverse possession
subsisting at the time when the lands were brought under the ambit of the Act
(see section 45).”
20. The Defendant must therefore make out a cogent case of fraud against the Claimant in the context of section 141 if it is to impeach the registered title of the Claimant. Although there is no definition of the type of fraud contemplated in section 141 and it is not wise nor necessary to give abstract illustration of what may constitute fraud in hypothetical conditions, (Waimiha Sawmilling Co v
Waione Timber [1926] AC 101) the section clearly states in
terms that knowledge by a purchaser directly or constructively of any trust
or
unregistered interest shall not itself be imputed as fraud. There must be
something more. It is this “something more”
which the second
Defendant asks this Court to investigate at the trial. The Claimant contends
that as the second Defendant is limited
to his pleadings, the Court must examine
what has been alleged and ask itself the question that even if the facts are
accepted as
true does it amount to fraud within the meaning of section 141 RPA.
Is it that “something more” than just notice of an
unregistered
interest?
21. An allegation of fraud to defeat the indefeasible title of a purchaser
must go beyond a mere notice of an unregistered
interest. Indeed
in normal circumstances section 141 permits the purchaser to contract and deal
or take a transfer from a
registered proprietor without being required
to enquire or ascertain the circumstances or the consideration for which such
proprietor or any previous proprietor of the interest in question was acquired.
That is the legitimate starting position of a purchaser
under this system of
registration of title. In Stuart v Kingston [1923] HCA 17; (1923) 32 CLR 309 Knox CJ
commented:
“The equitable doctrine of notice actual and constructive is founded
upon the view that the taking of an estate after notice
of a prior right is a
species of fraud...Under the Act, taking property with actual or constructive
notice of some trust is not of
itself sufficient reason for imputing fraud. The
imputation of fraud therefore based upon the application of the doctrines of the
Court of Chancery as to notice cannot any longer be sustained in the case of
titles registered under the act.”
22. Such a starting point is consistent with section 37 (RPA) where the Registry itself is conclusive evidence that the land was properly brought under the provisions of the RPA. For this system of certainty to work there must be reliance on the
record with the exception of cases of fraud. However as section 141 has been
drafted fraud is not at large.
23. Several cases have examined the nature of fraud as contemplated under
section
141 to impeach the prima facie indefeasible title of the registered owner.
In Stuart v Kingston a section 141 fraud must be some “consciously
dishonest act” brought home to the purchaser.. See Stuart v Kinston
and Dillon. In Assets Company Limited v Mere Roihi [1905] AC
176 the fraud contemplated by these sections is actual fraud that is dishonesty
of some sort not what is called constructive or equitable
fraud. Equitable fraud
in the form of an impingement upon cognisance giving right to an equitable
interest is not of itself sufficient
to activate the fraud under section 141.
There is no room in the statutory context of section 141 in this Act to include
any concept
of imputed dishonest or imputed moral turpitude unless of course the
perpetrator of the fraud acted as the agent of the purchaser
who registered
title is sought to be impeached.
24. The authorities are not altogether clear on defining exactly what is
meant by fraud and the following statement of their Lordships
in Assets
demonstrates that even though there is a minimum bar, the exact nature of
the fraud to affect a bona fide purchaser is to be determined
on case by case
basis:
“Fraud by a person from whom he claims does not affect him unless
knowledge of it is brought home to him or his agents. The
mere fact that he
might have found out fraud if he had been more vigilant and had made further
enquiries which he omitted to make
does not itself prove fraud on his part. But
if it be shown that his suspicions were aroused and that he abstained from
making enquiries
for fear of learning the truth the case is very difficult and
fraud may be properly ascribed to him. A person who presents for registration
a
document which is forged or has been fraudulently or improperly obtained is not
guilty of fraud if he honestly believes it to be
a genuine document which can be
properly acted upon.”
25. The fraud of a purchaser of property therefore under the system of
registration in the context of section 141 means some act of
dishonesty. Actual
fraud. It is not constructive or equitable fraud. A deliberate, dishonest trick
causing an interest not to be
registered. An object of the transfer to cheat a
man of a known right. Although fraud is fact specific, the litmus test must be
an
act of dishonesty, moral turpitude which is more than mere knowledge of an
unregistered interest.
26. Facts which therefore only amount to mere knowledge by the
purchaser of unregistered interests would fail to pass this
litmus test. Facts
which impute some further act of dishonestly will not. Under this system of
registration of title therefore if
a purchaser acquires land on which exists
clear signs of occupation he is not guilty of fraud. This is the very question
which the
second Defendant submitted should be determined at a trial. In my view
such a narrow question can be decided summarily based upon
the facts pleaded and
the evidence that the second Defendant contends will be used to support his
case.
27. I took careful note of the second Defendant’s submission that the
facts that the trial “will reveal”. “It
may come out”.
There is no firm allegation, there is a suspicion that the Claimant’s
suspicion was aroused and he deliberately
closed his eyes to clear acts of
ownership. I got the impression that the second Defendant would prefer to fish
for a case of fraud
at the trial. However Munro v Stuart [1924] 41 S.R
203 is helpful. In that case the purchaser acquired the registered title to the
land with knowledge, not only of the
existence of unregistered leases, but also
their terms and proceeded to buy with the intention to eject the lessees from
occupation.
Considering section 43 of the Real Property Act, NSW, the question
arose as to whether those facts amounted to fraud on the part of the purchaser
within the meaning of the Act.
Harvey J concluded:
“In my opinion s 43 draws no distinction between the times at which the notice or knowledge is required which it states is not to be considered as
fraud. It starts out with the initiation of the proceedings between the
registered proprietor and the purchaser, because it takes
the stage at which he
is a personal contractor, and it says that no person contracting shall be
affected by notice of unregistered
interests, and the knowledge that any such
trust or unregistered interest is in existence shall not of itself be imputed as
fraud,
which seems in other words to say that although when you are contracting
with a registered proprietor you know there is in existence
an unregistered
interest, you are justified in going on and completing your contract and
carrying it through to completion...”
28. The Defendant relied upon the judgment of Moosai J in Orville Boscombe v Ruben Hills and Others which is very instructive. In that judgment reference was made to Francis’, Torrens Title in Australasia Vol 1 at p 602 and 603 which provides a neat summary of the nature of the fraud necessary to impeach title. The author confirms that whereas the authorities have not been able to give a definition of what constitutes fraud and that it is case specific, it will always be difficult to draw the line between knowledge or notice that is not to be treated as fraud and notice which under the particular circumstances must be treated as fraud. However I must emphasise that there is a base line. Fraud is not to be imputed to a purchaser under the RPA unless some consciously dishonest act is brought home to him. The authorities are speaking in the same voice that quite apart from knowledge of the existence of unregisterable interests, knowledge of the purchaser of the nature of those interests is not enough to allege fraud for the purposes of section 141. The imputation of fraud based upon the doctrines of notice is gone. Harvey J in emphasising this went so far to say that even if the purchaser has at the time of entering his contract to purchase, knowledge of the existence of an unregistered interest the purchaser “may shut his eyes to the fact of there being an unregistered interest and need not take any consideration of the persons who claim under the unregistered interest.” Where there is nothing
but knowledge of an unregistered interest it is not a fraud to buy. See
Wicks v
Bennet [1921] 30 CLR 90.
29. The implications of this section suggests that purchasers under this
system of registration are allowed to cast a Nelsonian eye
over the property,
make no enquiries, and even if they do and proceed with knowledge of adverse
interests it makes no difference
whatsoever. Such an act cannot on its own be
stigmatised with the label of fraud. The Act is designed to facilitate their
dealings
with land.
30. I understand totally the second Defendant’s submission that
because the authorities are not altogether clear as
to what would constitute
fraud and that fraud is a fact to be proven, then this claim must go to trial to
test the case of the second
Defendant and to hear the evidence. To be fair to
the second Defendant I even examined his witness statements filed in this
application.
Quite apart from the fact that the witness statements are not
properly evidence before the Court on this application, they do not
build a case
of fraud against the Claimant. In any event, the pleadings do not go beyond mere
notice. It extends to an allegation
that the Claimant should have perused
Doppia’s application. But there is no legal obligation to do so. There
should be something
more such as participation with Doppia in bringing the land
dishonestly under the Act, Doppia acting as the Claimant’s agent
in
registering the land fraudulently, having actual notice of the Doppia
application and acting in a manner so as to cheat the second
Defendant of his
property. It would not be wise to describe what may qualify as fraud in this
case. It is sufficient in this case
to conclude that what has been alleged in
the pleadings and what can be permitted as evidence to support those material
pleas does
not pass the litmus test of fraud as contemplated within the meaning
of section 141 RPA to impeach the title of the Claimant.
Adverse possession
31. The second Defendant’s second line of defence is that he has a
possessory title or that the Claimant’s title was extinguished
by the
adverse possession of the Defendant. There are several answers to this defence.
First the pleadings are deficient to support
a plea of adverse possession. The
Defendant is mandated by the Civil Proceedings Rules 1998 (as amended) (herein
after “CPR”)
to set out his case thoroughly. See rules 10.5 (3), (4)
and (5). The effect of Rule 10.5 is adequately summarised in "Civil
Procedure" by Adrian Zuckerman at page 217 as follows:
"The old system of bare denials and "holding defences" was wasteful and no
longer acceptable. Today, the function of the defence is
to provide a
comprehensive response to the particulars of claim so that when the two
documents are read together one can learn precisely
which matters are in
dispute".
32. See also M.I.5. Investigation Limited v Centurion Protective Agency
Limited Civil Appeal No. 244 of 2008 and Andre Marchong v. The Trinidad
& Tobago Electricity Corporation & Galt & Little page Ltd
CV 2008-04045. The combined effect of part 10.5 and 10.6 is that a
Defendant must, by its defence, provide a comprehensive response to the
claim and state its position on each relevant fact or allegation put forward
in
the claim in the manner required by the rules. In setting out the reason for
resisting the claim notably Mendonca JA in MI5 observed: “The
reasons must be sufficiently cogent to justify the incurring of costs and the
expenditure of the Court’s resources in having
the allegation
proved.”
33. The above passage from M.I.5 Investigations Limited supra suggests that it is incumbent on a Defendant to comply with the provisions of Rule 10.5. Not only must he do all that is necessary to advance the success of his defence, he must also ensure that the Court’s resources are not wasted on trivial reasons for
resisting an allegation in the Statement of Case. The Privy Council in
Bernard v. Seebalack 77 W.I.R 455 reminds us that “Pleadings are
still required to mark out the parameters of the case that is being advanced by
each party. In particular they are still
critical to identify the issues and the
extent of the dispute between the parties. What is important is that the
pleadings should
make clear the general nature of the case of the
pleader...'
34. Claims of “adverse possession” must be carefully drafted and the pleader must make it clear that this is the case which is being set up in defence of a claim for possession. In Lystra Beroog & Anor. v. Franklin Beroog CV2008-004699 I observed that this claim “pits the rights of persons in occupation against the title owners of the property. It is a short hand expression for the type of possession which can, with the passage of years, mature into a valid right. It is therefore a very serious and significant claim where that type of occupation will trump a legal right. The claim must therefore be carefully scrutinized to determine the character of the land, the nature of the acts done upon it and the intention of the occupier. The onus of establishing the defence of adverse possession is on the Defendant who put it forward”: The facts relied upon to establish ‘adverse possession’ must be cogent and clearly stated in the defence. See Nelson v. DeFreitas CV2007-
00042 Pemberton J.
35. The pleading must establish that the entry on the land was unlawful; that the possession was for a period of at least 16 years; and the intention to dispossess. Anything short of establishing this will not suffice. See Atkins Court Forms Volume 25(1). The second Defendant’s pleading is not sufficient to mount such a claim. The only facts alleged are that the second Defendant is in occupation and that over the years leases were granted for discrete portions of the 14 acre parcel. Second, again taking a glance at the witness statements I am of the view that the evidence sought to be adduced by way of acts of possession would be inadmissible as they do not support a material plea in the Defence and
counterclaim. Third, the second Defendant sought to rely upon the grant of
leases as evidence of actual occupation. I see no basis
for holding that the
grant of leases without any allegation of actual occupation in the
Defence can constitute factual
possession for the purpose of the law of adverse
possession. Fourth, reference is made in the pleadings of a letter demonstrating
the appointment of a caretaker, roads on the land, and the presence of houses on
the lands. The pleadings are simply insufficient
to bring home to the Claimant
that it has a case to answer on adverse possession. Fifth, the defence on this
issue simply in my view
traces the chain of title of the second Defendant and
contends that his title is perfect or asks the Court to declare the he is the
freehold title owner having regard to the chain of title. It never appeared to
me to be raising a case of adverse possession, such
a defence seems to have been
argued as an afterthought. Had I set this matter down for trial I would have
struck out the witness
statements as being simply irrelevant to the pleaded
case.
The re-amendment
36. The second Defendant wishes to now plead specifically his reliance on
section
45 of the Real Property Ordinance and by virtue of which the Claimant’s title was extinguished. It is trite law that pursuant to rule 20.3 CPR, the second Defendant must cross the threshold test of promptness and showing a good reason why the re-amendment could not have been made at the first case management conference. The second Defendant fails on both limbs. I made a deliberate note
that the first CMC ended on 16th June 2011. The application is
made on 13th
February 2012 several months after the first CMC and the filing of its amended Defence in May 2011. There is absolutely no explanation by the second Defendant to explain the delay. The submission was however made that the proposed re amendment is merely cosmetic and is needed only for completeness. In fact it was submitted that there is no need to plead the statue as he is entitled to rely on it in any event. If that is the case there is no need to re
amend the pleading. However even if the second Defendant sought to rely on the statue either in argument or by pleading it the difficulty as analysed above, is that there are insufficient facts to mount a claim of adverse possession. Put in a different way there is no real prospect of success of the adverse possession claim as pleaded. Reference to the statute will not help without the foundational facts to support the plea. Even if the second Defendant did cross the threshold, applying the discretionary factors of 20.3.A CPR the re-amendment will not be allowed primarily for the reason that there are simply no facts to support the plea and it will be contrary to the administration of justice to permit such an amendment.
37. The application to re-amend therefore fails. Conclusion
38. The Claimant therefore succeeds on his application for summary
judgment.
There is no real prospect of success of the claims of the second Defendant on
the amended Defence and counterclaim of adverse possession
or that the Claimant
is guilty of fraud which will impeach the indefeasibility of his title
registered under the RPA. The proposed
re amended Defence takes the case no
further and in fact fails to cross the threshold of Part 20.3
CPR.
39. The application to re amend is dismissed with costs to be paid by the
second
Defendant to the Claimant to be assessed in default of
agreement.
40. There will be judgment for the Claimant against the second Defendant as
follows: (a) The court declares that the Claimant is the
registered freehold
owner and
entitled to possession of the land described in paragraph 1 of the
statement of case filed herein and holds same absolutely free from any liens estates or interests whatsoever of the second Defendant
(b) The second Defendant whether by himself his servants or agents or howsoever otherwise is restrained from entering upon and/or in any way dealing with the said land described in 1 above or any part thereof and/or any interest therein; and
(c) The second Defendant do pay to the Claimant prescribed costs of the claim
to be quantified in default of agreement and the costs
of the application for
summary judgment to be assessed in default of agreement.
41. The assessment of costs will be conducted by this Court by the Claimant
filing the requisite notice and statement of costs. Further
directions will then
be given to deal with the assessment of costs.
Dated this 15th June 2012
Vasheist Kokaram
Judge
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