Camraj Ramgulam v Basdaye Kissoon

• Jurisdiction: Trinidad & Tobago
• Judge: Westmin R.A. James
• Judgment Date: 29 August 2024
• Neutral Citation: TT 2024 HC 192
• Docket Number: Claim No: CV 2023-02516
• Court: High Court (Trinidad and Tobago)

Between

Camraj Ramgulam

Claimant

and

Basdaye Kissoon Also called Basdaye Deonarine

Defendant

Before:

The Hon. Mr. Justice Westmin R.A. James

Claim No: CV 2023-02516

IN THE HIGH COURT OF JUSTICE

Appearances:

Ms. Desirée E Sankar and Ms. Vandana Benny, Attorneys-at-Law for the Claimant

The Defendant appears in person and unrepresented

Background

1 The Claimant by Notice of Application supported by an Affidavit of Camraj Ramgulam filed on 9 ^th February 2024 sought Summary Judgment and an Order to Strike Out the Defendant's Defence and Counterclaim.

2 The Defendant filed an Affidavit in Response to the Application on 25 ^th March 2025.

3 The Claimant and the Defendant have the same father but different mothers.

4 The Claimant together with Baboonee, Ramjeeawan, Ramdial, Ramcharan, Basdai and Batchea hold the legal title of a piece of land situate in the Ward of Savana Grande in the Island of Trinidad comprising FIVE ACRES ONE ROOD AND TWO PERCHES be the same more or less delineated and coloured pink in the diagram attached to and described in the Crown Grant in Volume 431 Folio 393 and bounded on the North by Lands of Rakah and by Kunjul Road, on the South by Crown Land and by Kunjul Road on the East by Kunjul Road and on the West by lands of Sookdaya and by Lands of Mungal Ravi.

5 The Claimant together with Baboonee, Ramjeeawan, Ramdial, Ramcharan, Basdai and Batchea also hold the legal title of a piece of land situate in the Ward of Savana Grande in the Island of Trinidad comprising FIVE ACRES THREE ROODS AND THIRTY FOUR PERCHES be the same more or less delineated and coloured pink in the diagram attached to and described in the Crown Grant in Volume 237 Folio 269 and bounded on the North by Lands of Nabalack, on the South by Crown Lands on the East by a Road Reserve and on the West by Crown Lands and lands of Immamally, hereinafter collectively referred to as the “said property.”

6 By Memorandum of Assent registered on 23 ^rd November 1966 the two parcels of land were passed to Ramgulam as one of the persons and next of kin. His name stated in the Memorandum of Assent was Ramgulam, and he was a tenant in common. The said Ramgulam therefore had 1/7 ^th share and interest in the property. By Memorandum of Transfer dated 19 ^th February 1988, registered in Volume 3223 Folio 237, the said Ramgulam transferred his 1/7 ^th share and interest in the property to himself and the Claimant as joint tenants. The Claimant's father died on 2 ^nd February 2023 almost 35 years later without severing the joint tenancy wherein that 1/7 ^th share was vested solely in the Claimant.

7 After the death of their father, the Defendant remained in occupation of the dwelling house on the lands without permission and/or consent of the Claimant. The Claimant has requested that the Defendant vacate the property via emails on 13 ^th March 2023, and 14 ^th March 2023. The Defendant has refused to vacate the property.

8 The Claimant filed a Fixed Date Claim Form together with an Affidavit on 14 ^th July 2023 and Amended Fixed Date Claim Form and Statement of Case on 24 ^th November 2023 seeking the following reliefs:

• a. An order that the Defendant deliver up vacant possession of the two-storey structure located on that piece of land situate in the Ward of Savana Grande in the Island of Trinidad comprising FIVE ACRES ONE ROOD AND TWO PERCHES be the same more or less delineated and coloured pink in the diagram attached to and described in the Crown Grant in Volume 431 Folio 393 and bounded on the North by Lands of Rakah and by Kunjul Road, on the South by Crown Land and by Kunjul Road on the East by Kunjul Road and on the West by lands of Sookdaya and by Lands of Mungal Ravi (hereinafter referred to as the “said dwelling house”). The said dwelling house comprises of three (3) bedrooms, a living room, a kitchen and one (1) bathroom on the second floor, and a commercial bar area with a kitchen and stock room on the first floor.

• b. An order that the Defendant deliver up vacant possession of that piece of land situate in the Ward of Savana Grande in the Island of Trinidad comprising FIVE ACRES ONE ROOD AND TWO PERCHES be the same more or less delineated and coloured pink in the diagram attached to and described in the Crown Grant in Volume 431 Folio 393 and bounded on the North by Lands of Rakah and by Kunjul Road, on the South by Crown Land and by Kunjul Road on the East by Kunjul Road and on the West by lands of Sookdaya and by Lands of Mungal Ravi.

• c. An order that the Defendant deliver up vacant possession of that piece of land situate in the Ward of Savana Grande in the Island of Trinidad comprising FIVE ACRES THREE ROODS AND THIRTY FOUR PERCHES be the same more or less delineated and coloured pink in the diagram attached to and described in the Crown Grant in Volume 237 Folio 269 and bounded on the North by Lands of Nabalack, on the South by Crown Lands on the East by a Road Reserve and on the West by Crown Lands and lands of Immamally.

• d. The Defendant do pay the Claimant's costs.

9 The Defendant filed an Affidavit of Defence on 14 ^th August 2023; a Defence and Counterclaim on 20 ^th October 2023; a First Citizens Limited Bank Statement and a Royal Bank of Canada Bank Statement of Ramgulam Deonarine on 30 ^th October 2023; and an Amended Notice of Application, a Supplementary Statutory Declaration and a Draft Order on 25 ^th March 2024.

Law in relation to Summary Judgment

10 The Claimant's Application is both for striking out (Part 26.2) on the basis that the Defence discloses no grounds for defending the claim and Summary Judgment (Part 15.2(a)) that the Defendants have no realis c prospect of success on their Defence. The difference in the test between the two was explained by Kokaram J as he then was in CV2013-00212 University of Trinidad and Tobago v Professor Kenneth Julien and Ors. In that case he indicated that the Court is engaged in a more rigorous exercise in a summary judgment application than a striking out application.

11 It is therefore best for the Court to engage in the more rigorous exercise of determining whether the Claimant should be granted summary judgment against the Defendant because if the Court answers in the affirma ve, it will be decisive of the two issues when the other test is applied. This approach was adopted by Rahim J in British-American Insurance Company Ltd v Lawrence Duprey TT 2018 HC 199 and R. Mohammed J in Chris ne Layne v Wilma Antoine TT 2022 HC 264 and Malabar Farms Food Services Ltd v Diane Brathwaite TT 2021 HC 166.

12 The law on striking out and summary judgment are well established.

13 The law in relation to summary judgment is settled in this jurisdiction. The principles to be applied in an application for summary judgment were summarised by Lewison J in Nigeria v Santolina Investment [2007] EWHC 437 (Ch) as follows:

• “(i) The court must consider whether the Defendant has a “realis c” as opposed to a “fanciful” prospect of success: Swain v Hillman [2001] 2 All ER 91;

• (ii) A “realis c” 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]

• (iii) In reaching its conclusion the court must not conduct a “mini-trial”: Swain v Hillman

• (iv) This does not mean that the court must take at face value and without analysis everything that a Defendant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, par cularly if contradicted by contemporaneous documents: ED&F Man Liquid Products v Patel at [10]

• (v) 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 that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550;

• (vi) 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 investigatoon 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 Pharmaceu cals Group Ltd v Bolton Pharmaceu cal Co 100 Ltd [2007] FSR 63”

14 In its determination as to whether the Defence has a real prospect of success this Court also considered the established guidance articulated in Swain v. Hillman (supra) and Three Rivers District Council v. Governor and Company and Bank of England No. 3 [2001] UKHL 16.

15 The onus is of course on the Claimant to establish that: (i) the Defendant has no real prospect of succeeding based on the facts known by the parties at this time and (ii) no additional support for the Defendant's case through oral evidence at trial is likely to emerge that would affect the Court's assessment of the facts of his defence.

Defence

16 The Defendant is a litigant in person and so has not properly pleaded matters, has filed several documents and made numerous allegations. The Court can gather from the material filed by the Defendant that her Defence and Counterclaim allege fraud and misrepresentation and claim adverse possession.

17 In CA P-178/2019 Claim No. CV2017-00269 Wayne Lum Young v Sco abank Trinidad and Tobago Limited Kokaram J.A states:

29. The Defendant has a duty of set out its case on an application for summary judgment. This is not a speculative exercise. It is an assessment of the defence as it stands to date and on these applications the Court must not be...