Liloutie Deosaran A/C Shirley Badal Deosaran A/C Shirley Liloutie Deosaran-Badal, Indroutie Deosaran, Kaloutie Deosaran, Heerawatie Ojar A/C Heerawatie Deosaran, Chieredan Badal v Narendra Ojar Maharaj

• Jurisdiction: Trinidad & Tobago
• Judge: Jamadar, J.A.,Pemberton, J.A.,Des Vignes, J.A.
• Judgment Date: 16 October 2017
• Neutral Citation: TT 2017 CA 69
• Docket Number: Civil Appeal No. P46 of 2016; CV 2011-02402
• Date: 16 October 2017
• Court: Court of Appeal (Trinidad and Tobago)

Court of Appeal

Jamadar, J.A.; Pemberton, J.A.; Des Vignes, J.A.

Civil Appeal No. P46 of 2016; CV 2011-02402

Liloutie Deosaran A/C Shirley Badal Deosaran A/C Shirley Liloutie Deosaran-Badal, Indroutie Deosaran, Kaloutie Deosaran, Heerawatie Ojar A/C Heerawatie Deosaran, Chieredan Badal

and

Narendra Ojar Maharaj

Appearances:

Mrs. L. Maharaj S.C., Mr. D. Rambally and Ms. K. Khan holding for Ms. S. Allahar for the Appellants.

Mr. S. Jairam, S.C. and Ms. A. Khan for the Respondent.

Cases referred:

NCB (Jamaica) Ltd. v. Hew and others [2003] U.K.P.C. 51 .

Civil appeal - Deed of gift — Whether the Deed should be set aside on the basis of undue influence — Whether the evidential burden should be shifted — Whether the trial judge erred in concluding that the appellants had failed to establish a prima facie case of presumed undue influence sufficient to shift the evidential burden onto the respondent — Application to adduce new evidence

INTRODUCTION

1 This is an appeal against the decision of Madame Justice Margaret Mohammed (the “trial judge”) in which she found that a Deed of Gift executed on 17th September, 1990 (“the 1990 Deed”) by Basso Kanhai, (“Basso”) in favour of the Respondent was a valid Deed. In dismissing the Appellants' counterclaim, the trial judge found that they failed to discharge the burden of proof of undue influence on Basso and consequently, the evidential burden never shifted to the Respondent to rebut the presumption.

2 On appeal, the Appellants contend that the 1990 Deed should have been set aside by the trial judge on the basis of presumed undue influence because:

• a. the Appellants have established that Basso was a vulnerable person and that the transaction made was out of character; and/or

• b. the Respondent, (through his sister, Caren) exercised undue influence upon Basso resulting in the 1990 Deed being to Basso's disadvantage; and therefore

• c. the evidential burden shifted to the Respondent to justify its legitimacy which, on the evidence, he failed to do.

3 Essentially, this appeal deals with the shifting of the evidential burden in the circumstances of this case.

BACKGROUND HISTORY

4 Proceedings below were instituted by the Respondent and his father, George Ojar, against the Appellants for the partition and/or sale of a parcel of land in which they claimed an interest. It was their case that, by the 1990 Deed, Basso transferred her one-third interest in the said land to the Respondent and his sister, Caren, and maintained a life interest for herself Further, by Deed of Conveyance dated 11th December, 2004, Caren sold her one-sixth interest to her father, George Ojar.

5 The Appellants (who owned the remaining two-thirds interest in the said land) denied the entitlement of the Respondent and George Ojar to Basso's one-third interest and by way of Counterclaim against the Respondent, sought to set aside the 1990 Deed on the basis that it was fraudulent as the thumbprint affixed thereto was not that of Basso and, if it was, it was so affixed by undue influence upon Basso by reason of her illiteracy, age, physical infirmity and impaired vision. Further, the Appellants contended that Basso did not understand the nature and effect of the transaction and had no independent legal advice in executing the 1990 Deed.

6 By way of ancillary claim against Caren, the Appellants also sought to set aside the 1990 Deed on the aforementioned basis. Notably, the ancillary claim against Caren was compromised and the parties thereto entered into a consent order on 13th January, 2015 whereby the 1990 Deed was set aside in so far as it related to the conveyance to Caren.

7 The trial proceeded on the counterclaim and the claim for partition was stayed pending the hearing and determination of this appeal.

LAW, ANALYSIS AND FINDINGS

8 This Court is bound by the Privy Council decision in NCB (Jamaica) Limited v. Hew and Others [2003] U.K.P.C. 51. We note that this decision was given after the decision of the House of Lords in Royal Bank v. Etridge (No. 2) [2002] 2 A.C. 773 which was cited with approval by the Board.

9 The law in relation to presumed undue influence is as set out in the following paragraphs of the judgment of Lord Millett in NCB (supra):

• “[29] Undue influence is one of the grounds on which equity intervenes to give redress where there has been some unconscionable conduct on the part of the defendant. It arises whenever one party has acted unconscionably by exploiting the influence to direct the conduct of another which he has obtained from the relationship between them. As Lord Nicholls of Berkinhead observed in Royal Bank of Scotland plc v. Etridge (No. 2) [2002] 2 A.C. 773, [2001] 4 All E.R. 449 at p 794–5:

  “Undue influence is one of the grounds of relief developed by the courts of equity as a court of conscience. The objective is to ensure that the influence of one person over another is not abused….

  [It] arises out of a relationship between two persons where one has acquired over another a measure of influence, or ascendancy, of which the ascendant person then takes unfair advantage.”

• [30] Thus the doctrine involves two elements. First, there must a relationship capable of giving rise to the necessary influence. And secondly, the...