Summary of Jassoda Ramkishun Executrix of the Estate of Sukhree, deceased, pursuant to a Grant of Probate No 102 of 2004 and substituted by Order of Court dated the 27th day of February 2004 Appellant v Conrad Ashford Fung-Kee-Fung individually and in his capacity as the Administrator Ad Litem of the Estate of Letitia Fung-Kee-Fung, deceased, Michael Fung-Kee-Fung and Elaine Brooker, deceased, pursuant to Order of Court dated the 7th day of February 2003 Doreen Elizabeth Deane Leila Glendon Respondents

CourtCaribbean Court of Justice (Appellate Jurisdiction)
Docket NumberCCJ Appeal N. CV 14 of 2007
JudgeMr Justice de la Bastide, Justices Pollard, Bernard, Wit, The Honourable Mr Justice Wit, The Honourable Mr Justice Nelson, The Right Honourable Mr Justice de la Bastide, The Honourable Justices Pollard, De La Bastide
Judgment Date31 Mar 2010
JurisdictionCaribbean States
Neutral Citation[2010] CCJ 2 AJ

[2010] CCJ 2 (AJ)

IN THE CARIBBEAN COURT OF JUSTICE

Appellate Jurisdiction

ON APPEAL FROM THE COURT OF APPEAL OF THE CO-OPERATIVE REPUBLIC OF GUYANA

Before

The Right Honourable and the Honourables

Mr Justice de la Bastide, President

Mr Justice Nelson

Mr Justice Pollard

Mme Justice Bernard

Mr Justice Wit

CCJ Appeal N. CV 14 of 2007

GY Civil Appeal No 74 of 2003

Between
Jassoda Ramkishun Executrix of the Estate of Sukhree, deceased, pursuant to a Grant of Probate No 102 of 2004 and substituted by Order of Court dated the 27th day of February 2004
Appellant
and
Conrad Ashford Fung-Kee-Fung individually and in his capacity as the Administrator Ad Litem of the Estate of Letitia Fung-Kee-Fung, deceased, Michael Fung-Kee-Fung and Elaine Brooker, deceased, pursuant to Order of Court dated the 7th day of February 2003
Doreen Elizabeth Deane
Leila Glendon
Respondents
Appearances

Mr Robin M. S Stoby, S.C. and M. Kashir Khan for the Appellant

Mr Mohabir A Nandlall and Mr C P Satram for the Respondents

JUDGMENT of The Right Honourable Mr Justice de la Bastide, President andThe HonourableJustices Pollard, BernardandWitDelivered byThe Honourable Mr Justice Witon the 31st day of March, 2010 and JUDGMENT ofThe Honourable Mr Justice Nelson

JUDGMENT OF The Right Honourable Mr Justice de la Bastide AND The Honourable Justices Pollard, BernardANDWit

Introduction
1

This is an appeal from a decision of the Court of Appeal of Guyana given on 31 October 2007. In its decision a majority of that Court (Claudette Singh and Chang JJA, Roy J, Additional Judge, dissenting) allowed an appeal against a judgment of the High Court (Carl Singh CJ) which was handed down on 26 October 2006. After having obtained leave to appeal from the Court below, Ramkishun, the appellant, filed a notice of appeal with this Court on 31 December 2007. The appeal was heard by us on 21 April 2009. Thereafter, in the course of our own researches we unearthed a substantial body of Roman-Dutch law, mainly South African cases and legal writings, which seemed to be highly relevant. Accordingly, we decided to draw the attention of both parties to this material and to invite them to make further written submissions. The parties subsequently filed their submissions and, in the case of Ramkishun, additional authorities. We now give judgment in this case which touches some important aspects of the land law of Guyana.

The factual background
2

The facts in this case have been established by the High Court without interference from the Court of Appeal. We make the facts so established our point of departure in dealing with this case.

3

In March 1980, Solomon Fung-Kee-Fung, the father of the respondents in this appeal, agreed to sell to Sukhree, the original plaintiff in this case, a plot of land for the purchase price of $35,000. The land, described as lot 22, Section B, Plantation Ruimzight, West Coast Demerara, comprises 4.915 acres. On 20 March 1980, at the request of Solomon Sukhree paid a deposit of $10,000 against the purchase price. The following day a receipt for this deposit, prepared by attorney-at-law Hugh Chan, was signed by Solomon in the presence of two witnesses. It was issued to Sukhree who was also given possession of the land. In the following years, on several occasions Sukhree requested Solomon in vain to transfer the land to her.

4

In February 1983 Solomon died intestate without having transferred the land. Sukhree thereupon contacted Solomon's son, Ashford, the first respondent, who took her to his mother, Letitia, Solomon's widow. Letitia resided elsewhere; for many years she and her late husband had lived separately. In the presence of Ashford, Sukhree showed Letitia the receipt and asked for the land to be transferred to her. Letitia indicated that she was prepared to honour Solomon's agreement with Sukhree but told her that she had to wait for the grant of “probate” before she could do anything and that Sukhree would be informed by Ashford when everything was ready to proceed. Thus the impression was conveyed to Sukhree that once the paperwork was done, the transport would be passed to her.

5

In the years following that meeting, Sukhree visited Letitia regularly but on every such occasion Letitia told her that the necessary “papers” (the letters of administration) had not yet been obtained. In the initial stage that was not untrue but, unknown to Sukhree, on 23 August 1983 Letitia had been granted letters of administration. And on 15 February 1984, in her capacity of administratrix of the estate of Solomon, she passed transport of the land to Solomon's heirs ab intestato ie herself and her children, Ashford, Michael, Doreen, Leila and Elaine. When that transport was passed both Letitia and Ashford were present at the Deeds Registry; the other children were represented by Letitia pursuant to four separate powers of attorney. Sukhree was not informed about these developments, and for many years Letitia kept her dangling, telling her over and over again quite falsely that she, Letitia, was not yet in a position to proceed with the transfer.

6

It was finally in 1991 that Sukhree, who at that time was still in possession of the land, went to the Deeds Registry only to discover that for a very long time she had been deceived by Letitia and that title to the land had been vested in Letitia and the other heirs as early as 1984. Upon this discovery she went to the United States of America (USA) where Letitia was then staying. There she met with Letitia and Ashford. She confronted them with her findings at the Deeds Registry and insisted that the land had to be transported to her in fulfillment of the agreement of sale with Solomon. Letitia then told her (for the first time) that the land was “children's property” but she gave her word that upon her return to Guyana in two weeks' time she would have the transport passed to Sukhree. Relying on this undertaking Sukhree returned to Guyana. One month later Letitia had still not appeared and Sukhree decided that the time had come to take action.

7

On 2 September 1991, Sukhree had an action filed in the High Court for specific performance of her contract with Solomon. This action was unfortunately and inexplicably brought against the deceased. It was subsequently dismissed. After the filing of this first case, Ashford took possession of the land, whereupon Sukhree in June 1992 filed a second action, this time against Ashford for an order of possession and damages for trespass. It is not clear what happened to this case. It seems to have evaporated in the mists of time.

8

Finally, at long last, the current action was filed in August 1993 against Letitia and her five children. In this action Sukhree sought inter alia the following remedies:

  • (a) specific performance of the agreement between herself and the deceased Solomon as evidenced by the receipt of March 21, 1980;

  • (b) a declaration that the then defendants, the six heirs ab intestato of Solomon, held the property in trust for Suhkree,

  • (c) damages in excess of $15,000 for breach of the said contract,

  • (d) any further or other relief which to the Court might seem just, and

  • (e) costs.

9

Several legal grounds have been advanced on behalf of Sukhree and, after her death, the administratrix of her estate, in support of these claims. Firstly, it was argued that Letitia and her children had obtained the transport by fraud and that on this basis the transport should be rescinded. Secondly, it was argued that because of the promises expressly made to Sukhree by Letitia and implicitly by Ashford, they together with the other four heirs to the estate had become upon passing of the transport to the six of them, (constructive) trustees for Sukhree and, after her death, Sukhree's estate. A third ground was further developed before the Court of Appeal. It simply stated that Letitia and the five other heirs of Solomon, having received the property as volunteers, were under a duty to honour the contract entered into by Solomon with Sukhree.

The judgment of the High Court
10

The High Court ruled in favour of Sukhree. The Chief Justice held that the conduct of Letitia and Ashford with respect to Sukhree amounted to a form of fraud (“equitable fraud”) by means of which the transport was obtained. Having come to this conclusion, the Chief Justice then considered the relevance of s 23 of the Deeds Registry Act, Cap. 5:01. According to the proviso to this section “any transport … obtained by fraud shall be liable in the hands of all parties or privies to the fraud to be declared void by the Court in any action brought within twelve months after the discovery of the fraud…”. This action, having been brought more than two years after discovery of what the Chief Justice deemed to be fraud, would clearly fail if this period of limitation applied to any action based on fraud. Following the reasoning of George J in Allicock v Demarara Bauxite Co., Ltd1, however, the Chief Justice concluded that the proviso did not deprive the Court of its discretionary power under the general principles of equity to order a rescission of a transport obtained by fraud in a suit brought more than one year after the discovery of the fraud.

11

Having overcome this hurdle, the Chief Justice then turned to the question whether there had been an unreasonable delay in the commencement or

prosecution of the proceedings. After all, Sukhree had waited until August 1993 before requesting the Court to order the specific performance of a contract entered into more than 13 years earlier. Considering, however, that Sukhree had been put into possession of the land by Solomon and had remained in possession until 1991, and that she had over and over again been assured by Letitia and Ashford that the transport would be passed to her, the Chief Justice concluded that the delay in bringing the case had not been so unreasonable as to bar Sukhree from...

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