James v Adams et Al

• Jurisdiction: Trinidad & Tobago
• Judge: Hamel-Smith, C.J.,Kangaloo, J.A.
• Judgment Date: 12 March 2007
• Neutral Citation: TT 2007 CA 8
• Docket Number: Civil Appeal No. 149 of 2006
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 12 March 2007

Court of Appeal

Hamel-Smith, C.J. (Ag.); Kangaloo, J.A.

Civil Appeal No. 149 of 2006

James

and

Adams et al

Appearances:

Mr. D. Rampersad for the appellant.

Mr. E. Koylass, S.C. and Mr. D. Waithe for the respondents.

Civil practice and procedure - Statement of case — Amendment — Dismissal of claim against second and third defendants — Application to amend was to include allegations of fraud and collusion — Application was dilatory — No explanation for delay — Appeal dismissed.

Hamel-Smith, C.J. (Ag.): I agree for the reasons given by my Brother that the appeal also should be dismissed.

R. Hamel-Smith

Chief Justice (Ag.)

Kangaloo, J.A.

1 These reasons are being given pursuant to Part 64.9(6) of the Civil Proceedings Rules 1998 which prescribe oral reasons, when dealing with procedural appeals.

2 The appeal arises out of a decision of the learned trial judge, Madam Justice Gobin, on the 21st day of November 2006, wherein, at a case management hearing, she dismissed the appellant's claim against the second and third-named respondents and made certain other consequential orders.

3 At that case management hearing, as well, the learned judge refused to entertain an application to amend the Statement of Case which had been filed on the day prior, that is, the 20th November 2006. The thrust of the appeal is that the learned judge erred when she made the two orders that I have recited, and the real issue to be determined on this appeal is whether the learned judge ought to have entertained the application to amend the Statement of Case, as I mentioned. I say that is the real issue because the first issue, as to whether or not the learned judge could have properly dismissed the claim against the second and third-named respondent, was an issue of law dealing with the first-named respondent's ability, as the Administratrix of an estate, to sell the property in question, the property the subject matter of the case and of the appeal, and it appears that the decision on that issue of law has now been accepted by the appellant.

4 Now, the factual background would help to put the appeal and the orders appealed against in their proper context and the background is that on the 29th March 2006, the appellant had filed this case against the Administratrix of his mother's estate, who is the first respondent, and against the second and third-named respondents, who were the purchasers of the only asset of the mother's estate, that is, the family home in which the appellant had lived in excess of some 30 years.

5 The crux of the case, as it was pleaded originally, was that the first respondent as administratrix could not, in law, have sold the property to the second and third-named respondents without the concurrence of all the other beneficiaries of the mother's estate. It was also alleged in the Statement of Case that there was a Power of Attorney granted shortly before the conveyance to the second and third-named respondents, which Power of Attorney was given to a real estate agent. However, it was contended by the claimant/appellant that he did not sign that Power of Attorney and, therefore, there was fraud in the dealings of the first-named respondent with that real estate agent. It was pleaded against the second and third-named respondents that they colluded with the first-named respondent and the real estate agent in the sale of the property to them. However, the only allegation of collusion against the second and third-named respondents was that they were related to the first-named respondent. It must be remembered that the first-named respondent and the appellant are siblings; they are the direct offspring of the whole blood of the mother. So that what the appellant would have been saying is that the second and third-named respondents were also related to him. However, the plea went no further than that. That was the extent of the alleged collusion between the second and third-named respondents and the first respondent as Administratrix.

6 The matter, unfortunately, came up several times before the learned judge because the first-named respondent was not served. I would just interject to say that it is my view that, that was not the intention of the new rules under which these proceedings were initiated. It appears that there was some difficulty in serving the first-named respondent, although she lived in La Romaine not far from where this property is in San Fernando, and it appears, as well, that she was a nurse, so that she obviously had a place of employment; but, yet, for some reason, she was not...