Moses v Charles et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Kangaloo, J. |
| Judgment Date | 09 March 2015 |
| Neutral Citation | TT 2015 HC 85 |
| Docket Number | CV 2011-02341 |
| Court | High Court (Trinidad and Tobago) |
| Date | 09 March 2015 |
High Court
Kangaloo, J.
CV 2011-02341
Ms. Veronica Elaine-Greene instructed by Ms. Margaret Clark for the claimant
Mr. Felix Celestine for the defendants
Civil practice and procedure - Judgment — Application for summary judgment — Laches — Res judicata — Whether defendant had a realistic prospect of success — Application dismissed.
The claimant is before the Court seeking declaratory relief with respect to certain lands belonging to one, Ms. Louisa Gatt (“the Vendor”). The land in question (“the Property) is a sub parcel of a parent parcel. The claimant claims that the lands [All that piece or parcel of land situate at L. P 28 %Eastern Main Road, GUIACO, Sangre Grande in the War of Turure and comprising One Thousand Three Hundred and Thirty Point Six Square Metres (1,330.6 sq. m2) the same forming piece of a larger piece or parcel of land vested in the defendants and described in the Memorandum of Transfer registered in Vol. 3903 Folio 239 of the Register Book of Titles and bounded on the North by the Eastern Main Road on the South by lands of Ronald Charles and Allystra Charles formerly Louisa Gatt on the West by lands now or formerly of Ottley and on the East by lands of Ronald Charles and Allystra Charles formerly Louisa Gatt.] formed part of an Agreement for Sale for purchase of the property which he entered into in 1974 with the Vendor. The purchase price of the Property was (8,000.00). Pursuant to the Agreement for Sale, the claimant paid (5,600.00) towards the purchase price. He alleges that the balance stood at 2,150.00 as at July 1977. After paying a portion of the purchase price the claimant claims he was put into possession of the Property by the Vendor. Some years later the claimant paid to the Vendor 7,000.00 representing the balance of the purchase price with the excess being used by the Vendor to pay off a Mortgage over the Property.
Upon settlement of the purchase price the Vendor then executed a Memorandum of Transfer of the Property to the claimant. This was held in escrow pending the judicial determination of a matter concerning the Vendor and the Property. The Vendor died before the Memorandum of Transfer could be executed. The Property then became vested in the Vendor's common law husband, Mr. Bonifacio Ribiero, personally and solely by a Memorandum of Assent.
The claimant alleges that he made attempts to have Property transferred to him after the death of the Vendor and pursuant to their Agreement for Sale. There was judicial determination of the matter regarding the Property and a Memorandum of Discharge with respect to the Mortgage was finally registered in 1998 after the death of the Vendor. The claimant contends that in light of the turn of events, he was advised that a new Memorandum of Transfer be executed by the Legal Personal Representative of the Vendor.
The common law husband of the Vendor also died without executing the Memorandum of Transfer. His Executrix (who was also one of his beneficiaries), Margaret Wong, was after his death registered personally as the proprietor of the entire parcel of land by a Memorandum of Assent. The First defendant held out himself to be an agent of Margaret Wong and it was in this capacity that he became known to the claimant. The Property was vested in the First defendant by a Memorandum of Transfer.
The claimant claims that the First defendant after having seen the Agreement for Sale undertook to have the Property transferred to the claimant by having a new Memorandum of Transfer drafted but it was never transferred. The claimant claims that at all material times the defendants had notice of his equitable interest in the Property, hence the attempts he made to transfer the Property to the claimant.
It is in this regard the claimant brought an action against the defendants to have the Property transferred to him. This action however was dismissed due to the claimant's failure to appear when the matter was heard which he claims was due to lack of notification of the matter by his attorneys. A second proceeding (HCA S 668 of 1999) in respect of the same Property was also dismissed on the grounds that the claimant had failed to prove the doctrine of adverse possession against the First defendant. A third set of proceedings was brought by the claimant against the defendant to recover possession of the Property. This was also dismissed by the High Court for want of prosecution.
The claimant contends that the defendants have refused to transfer the Property to him but rather propose to sell the property to him at half the market value. The claimant is now before the Court seeking relief that the series of Memoranda of Assent and Transfer be deemed void as they purport to convey the Property that forms part of an Agreement for Sale between the claimant and the Vendor.
It is the defendants' position that the claimant unlawfully occupies the Property and continues to do so. The defendants deny the chain of events pertaining to the Agreement for Sale as set out by the claimant. Contrary to the claimant's position that he attempted to have the common law husband of the Vendor transfer the Property to him, the defendants say that no such attempt took place.
The defendants state that the claimant is a tenant of the property. The first defendant goes further to say that on occasions he would witness the claimant paying rent in the sum of 75.00 to Margaret Wong. The First defendant denies having any knowledge of an Agreement for Sale between the Vendor and the claimant prior to the first High Court Action. The defendants deny ever seeing an Agreement for Sale or attempting to have one transferred to the claimant.
The First defendant states that the property by Memorandum of Transfer has been vested in him from Margaret Wong and then subsequently it was vested in both defendants. After the Memorandum of Transfer, the First defendant alleges that he sought the payment of rent from the claimant for his use and occupation of the Property. In light of this, the defendants are claiming mense profits from 1996 and continuing for the use and occupation of the Property by the claimant.
The defendants contend that this matter has been properly dealt with by the Court in two previous sets of proceedings. The defendants see this present case as an abuse of the process of the Court and untenable in law and in fact. The First defendant further contends that he has been prejudiced by the actions of the claimant in bringing this claim because the land has been negotiated for sale and cannot be sold because of the proceedings before the Court. The defendants raise the defences of res Judicata, inordinate and inexcusable delay and laches. Additionally the defendants allege prolonged, inordinate and inexcusable delay on the part of the claimant in bringing this matter before the Court having all the relevant facts at his disposal for more than 10 years prior to initiation of these proceedings. The defendants state that the claimant has failed and/or refused to initiate any action to enforce the Agreement for Sale that he purportedly entered with the Vendor and more so his purported equitable interest with the subsequent representative and/or beneficiaries. It is on this basis the defendants believe that the claim of the claimant should fail.
With respect to the Second defendant, the First defendant her father, claims he has no knowledge of any person known as Allystra Gatt. Further any transactions concerning the land that purport to include the Second defendant would have had to occur when she was a minor/infant and therefore could not have occurred.
The defendants have also filed a Counterclaim against the claimant. They are seeking a declaration that they are entitled to the Property and possession of the same. They are also seeking mense profits from the claimant, costs and any other relief that the Court sees fit.
In the management of the case, leave was granted to the defendants for them to file an Amended Defence and Counterclaim on or before the date ordered by the Court failing which the original defence would stand. The defendants failed to file on time. The defendants also failed to comply with an order for filing witness statements and to be relieved from sanctions imposed by Part 29.13 of the CPR. Therefore the claimant states that the defendants cannot lead any evidence in support of their claim. It is in this regard that the claimant has filed for summary judgment.
The claimant submits that Rule 15.2 of the CPR provides the grounds which govern summary Judgment application. This rule states: The court may give summary judgment on the whole or part of a claim or on a particular issue if it considers that—
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(a) on an application by the claimant, the defendant has no realistic prospect of success on his defence to the claim, part of claim or issue; or
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(b) on an application by the defendant, the claimant has no realistic prospect of success on the claim, part of claim or issue.
In Federal Republic of Nigeria v. Santolina Investment Corporation and others [2007] EWHC 436, at paragraph it is stated:
“[4] The courts have now given guidance on the principles to be applied in deciding whether or not to give summary judgment. For present purposes I summarise the relevant ones as follows:
i) The court must consider whether the defendant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v. Hillman [2001] 1 All ER 91, [2000] PIQR P51;
ii) A “realistic” 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. Paid [2003] EWCA Civ. 472.
iii) In reaching its conclusion the court must not conduct a “mini-trial”: Swain v. Hillman
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