Ramdeo v Heralall
| Jurisdiction | Caribbean States |
| Judge | Hayton, J.A. |
| Judgment Date | 15 April 2009 |
| Court | Caribbean Court of Justice |
| Docket Number | CCJ Appeal No CV 3 of 2008; GY Civil Appeal No 100 of 2000 |
| Date | 15 April 2009 |
Caribbean Court of Justice
Nelson, J.A.; Pollard, J.A.; Saunders, J.A.; Bernard, J.A.; Hayton, J.A.
CCJ Appeal No CV 3 of 2008; GY Civil Appeal No 100 of 2000
Mr. Khemraj Ramjattan, Mr. Neil Persram and Mr. Dave Persaud for the appellant.
Mr. Rajendra Poonai, Mr. Roopnarine Satram and Mr. Chandraprakash Satram for the respondent.
Real property - Agreement for sale — Failure to complete — Purchaser in possession prior to completion — Vendor subsequently sold to a second purchaser — Registered land — Whether there was fraud within the meaning of the Land Registry Act — Title — Whether the title of the second purchaser was indefensible.
This case emphasises the need for a contractual purchaser of land from a registered proprietor to protect himself against a subsequent transfer of title to another person by lodging a caveat against that title under section 125 of the Land Registry Act, Cap. 5:02. Otherwise, under ss. 4, 65(1), 66, 69 and 70 of that Act, the new registered proprietor will obtain an indefeasible title unless involved in some fraud relating to the transfer, s. 69(2) making it clear that mere knowledge of a contract unprotected by a caveat is not of itself to be imputed as notice of fraud. As Lord Wilberforce stated in Midland Bank Trust Co Ltd v. Green [1981] A.C. 513 at 531 “It is not ‘fraud’ to rely on legal rights conferred by Act of Parliament”, so that a contractual purchaser can take advantage of his right to become registered proprietor free from the right of another purchaser who failed to protect his contract by entering a caveat.
The appellant, Mr. Ramdeo, was a contractual purchaser who failed to lodge a caveat, despite delays on the part of his vendor in transferring title. Thus he had to rely on alleging that the respondent, Mr. Heralall, who had registered a transfer of title from the vendor pursuant to a contract, had been involved in some fraud relating to the transfer. As Wooding, C.J. emphasised in Roberts v. Toussaint (1963) 6 W.I.R. 431 at 433, “in actions in which a registered title is being impeached, fraud means some dishonest act or omission, some trick or artifice, calculated and designed to cheat some person of an unregistered right or interest.”
Unfortunately, the appellant's then attorney in his pleadings overlooked the elementary need to provide clear particulars of fraud involving the respondent: High Court Rules, Order 17, r. 6; Bullen & Leake & Jacob's Precedents of Pleadings 15th Edition 2004, para 48–02. An allegation of fraud is a very serious allegation, requiring that the person against whom fraud is alleged be made as aware as possible of what is alleged to be his fraudulent behaviour. This is a requirement that enables the defendant to be well-positioned to try to counteract such allegation and that also places the judge in a good position to make definitive findings in support of, or in rebuttal of, such allegation.
Despite the respondent's attorney filing a Defence stating at paragraph 7, “The plaintiff has failed to file particulars of fraud and his statement of claim ought to be struck out”, the appellant's amended statement of claim in its five extra paragraphs failed to provide particulars of behaviour that was fraudulent.
The appellant's current attorneys in their written and oral submissions skillfully pointed to various matters that they considered most suspicious and led them to draw very adverse inferences as to the respondent's behaviour, but it is possible that there could have been an innocent explanation for such matters. If these matters had been particularised and investigated at first instance and this had led the trial judge to find there to be evidence that the respondent had been involved in some fraud relating to the transfer of title to him, then the appellant would have succeeded in his claim to the land.
In the absence of such investigation and such a finding, however, there are no possible grounds on which the appellant's claim can succeed. Thus, at the hearing on 27 March 2009 we dismissed the appeal with costs here and below agreed in the sum of $350,000 (three hundred and fifty thousand Guyanese dollars). We are now giving our written reasons for such dismissal.
Under an agreement of sale and purchase of 29 April 1993 (“the Agreement”) the appellant bought from Mr. Bissoondial Dharamlall (“Mr. Dharamlall”) two parcels of land, namely Nos. 206 and 243 of Block V, Zone BRW, at Inverness, West Coast Berbice, (“the Disputed Parcels”), of which Mr. Dharamlall was the duly registered proprietor. The Agreement provided for a purchase price of $38,000 with half paid on 29 April 1993 and the remaining half to be paid on transfer of the title which was to be within one month. On 29 April 1993 possession of the land was also given to the appellant, who soon afterwards spent $200,000 in sand-filling and fencing the land.
The respondent, who lived close by, passed by the Disputed Parcels several times and saw what was going on: one day he even let the appellant use his trailer to load sand on the Disputed Parcels.
On 18 May 1993 Mr. Dharamlall's wife, Mrs. Phulwantie Dharamlall (“Mrs. Dharamlall”), through her attorney, Mr. Murseline Bacchus (“Mr. Bacchus”), brought Action No 557 of 1993 against her husband and the appellant. She sought a declaration that she was the owner of one half of the Disputed Parcels contracted to be sold under the Agreement and a declaration that the Agreement was of no legal effect. She also sought an order that her husband transfer to her a half interest in the Disputed Parcels and an injunction restraining her husband and the appellant from disposing of the Disputed Parcels.
On 8 June 1993 the appellant brought Action No 620 of 1993 claiming specific performance against Mr. Dharamlall for failing to transfer to him title to the Disputed Parcels as provided for in the Agreement.
In response, on 1 July 1993 Mr. Dharamlall swore an Affidavit of Defence, drawn up by his attorney, the self same Mr. Bacchus, who was also acting for his wife in the above Action No 557 against him. Mr. Dharamlall stated that he could not pass title until his wife's Action No 557 of 1993 had been determined, but admitted that he had purported to sell the Disputed Parcels to the appellant, though “my wife Phulwantie is the bona fide owner of one half of the property.”
Also on 1 July 1993 Mr. Dharamlall swore an Affidavit of Vendor (drawn up by an attorney, Mr. Dridhnauth Perry Gossai,) in which he averred that on 14 November 1991 he had sold the Disputed Parcels to the respondent in consideration of $12,000 whose receipt he had then acknowledged. On 1 July, too, the respondent swore the corresponding Affidavit of Purchaser (also drawn up by Mr. Gossai) and on that same day Mr. Dharamlall and the respondent executed the Transfer of title to the Disputed Parcels to the respondent. The transfer was effected on the register on 28 July 1993 so that the respondent then became the registered proprietor.
The appellant did not learn of these July events for some months during which Mrs. Dharamlall in her Action No 557 of 1993, pursuant to a summons of 22 June 1993, obtained an interlocutory injunction on 19 November 1993 against the appellant prohibiting him from putting up any structure on the Disputed Parcels. Her affidavit in support of her interlocutory claim was drawn up by Mr. Bacchus.
On 16 December 1993 the appellant as plaintiff filed Action No 1592 of 1993 (which has given rise to the present appeal) against Mr. Dharamlall as first defendant, Mrs. Dharamlall as second defendant and the respondent as third defendant, claiming the following remedies against them jointly and severally.
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(1) A declaration that the plaintiff is entitled to the right, title and ownership of the Disputed Parcels.
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(2) A declaration that the transfer by the first defendant to the third defendant of those Parcels is “illegal, null, void and of no legal effect and is vitiated for fraud.”
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(3) An order setting aside the transfer of 28 July 1993 of the Parcels.
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(4) An order compelling the first defendant to transfer title to the Parcels to the plaintiff.
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(5) An injunction restraining the defendants from building or erecting any structure on the Parcels or interfering with the plaintiff's peaceful occupation of the Parcels.
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(6) Damages in excess of $1,500.
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(7) Any other order the Court may deem just.
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(8) Costs.
On 16 February 1994 the appellant filed his Statement of Claim. Only the respondent as third defendant filed a Defence prepared by his attorney, Mr. Bacchus. In this Defence, filed on 21 January 1997, the respondent denied knowledge of the Agreement and of Actions No 557 and 620 of 1993, claimed to have been a bona fide purchaser for value of the Disputed Parcels without notice of the appellant's contract, claimed as registered proprietor to have an unimpeachable title to those Parcels, and, most significantly, alleged that failure to file particulars of any fraud should lead to the appellant's Claim being struck out.
With the leave of the court, the appellant filed his amended Statement of Claim on 24 April 1997 so as to allege in five new paragraphs:
- That the third-named defendant lives two houses west of the first and second named defendants. 16. That on the 3rd day of May 1993, the plaintiff borrowed and used the third named defendant's trailer to transport sand to the land and fill the said land. 17. That on the 9th day of May, 1993, the plaintiff commenced fencing the said lands. 18. That while the plaintiff was in the process of fencing the said land the first and third named defendants went to the said land and the first-named defendant stopped the plaintiff from continuing the said works. That the third-named...
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