Seenath v Seenath and Seenath

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: McShine, J.A.,Phillips, J.A.,Wooding, C.J.
• Judgment Date: 17 December 1968
• Neutral Citation: TT 1968 CA 109
• Docket Number: High Ct. Civ. App. No.13 of 1967
• Date: 17 December 1968

Court of Appeal

Wooding, C.J.; McShine, J.A.; Phillips, J.A

High Ct. Civ. App. No.13 of 1967

Seenath

and

Seenath and Seenath

Appearances:

B. Procope, Q.C. and A.J. Alexander for appellant

T. Hosein, Q.C. and M. de la Bastide for respondent

Real Property - Landlord and tenant — Tenancy — Joint Tenancy

Trust and Trustees - Trust property.

McShine, J.A.

1 It is fundamental that the evidence in any case should be directed and confined to the matters in dispute or which form the subject of the investigation. Whilst the propriety of this rule never can be in doubt, the present appeal discloses the difficulties that may be encountered in its application. The main question in this appeal is one of admissibility of evidence. On December 10th, 1955 by deed registered in the office of the Registrar General as No. 14159 of 1955 a large parcel of land in the Ward of Cunupia (herein called the Chin Chin property) was acquired in the names of the appellant Ramnarine Seenath and the respondent Seenath in fee simple as joint tenants. On April 30th, 1955 by another deed registered in the office of the Registrar General as No. 692 of 1956, contiguous properties Nos. 7 & 9 High Street in the Borough of San Fernando were also acquired in the names of the appellant Ramnarine Seenath, the respondent Seenath and Chandradath Seenath, in fee simple as joint tenants.

2 Seenath who was a plaintiff in the action claimed a declaration that the defendant Ramnarine Seenath, who is a son of Seenath, is a trustee for Ramesdath Seenath the other plaintiff in the action and a younger son of Seenath, with respect to one-half undivided share in the Chin Chin property, and also in respect of a one-third undivided share in the second property aforementioned which I shall call the High Street property. Ramnarine Seenath the defendant, whom I shall henceforth call the appellant, alleged in his statement of defence that he had “contributed an equal share of the consideration moneys paid in connection with the purchase of the lands and heriditaments mentioned in the endorsement to the Writ of Summons” i.e. to say both the Chin Chin and High Street properties.

3 The appellant was unable on an Order of the Court to give particulars of the aforementioned ‘contribution of the equal share’. Being thus in default that allegation was struck out. The appellant instead pleaded in his amended defence that the plaintiff Seenath, whom I shall henceforth call the respondent, was by the deed “estopped from alleging that the said parcels of land were purchased from his own proper monies or otherwise than as appears in the said deed”.

4 In the course of the hearing this plea of estoppal was abandoned, so also was the plea of failure of declaration of trust for the want of a memorandum in writing in that behalf. Accordingly it was conceded that the monies with ‘which both the Chin Chin and High Street properties had been acquired was wholly the own moneys of the respondent.

5 The fundamental issue in this case was whether the oral agreements adumbrated in the amended statement of claim were made. In other words, the question was whether the one-half share in the Chin Chin property and the one-third share in the High Street property were held by the appellant in trust far the plaintiff Ramesdath Seenath, or whether, in the circumstances, the equitable doctrine of advancement applied in order thereby to pass the beneficial interest in those shares to the appellant.

6 In the pleadings it was alleged by the respondent that it was orally agreed by the appellant and respondent that the respondent would purchase with his own moneys the properties mentioned and cause them to be conveyed as stated in the deeds and that the appellant held the interest thereby vested in him in trust for the “plaintiff Seenath save as to so much of the said parcel (parcels) of land as remained undisposed of at the date of the plaintiff Seenath's death which was thereafter to be held in trust for Ramesdath Seenath.”

7 In the course of time and in pursuance of the terms of the said agreements the respondent requested of the appellant that he convey the interest vested in him in the properties to the respondent and/or Ramesdath Seenath, this the appellant refused to do, but instead claimed to be beneficially entitled thereto. Because of this refusal and claim by the appellant the respondent claimed in the action a declaration that the appellant is a trustee of the interest vested in him in the two properties.

8 In the course of the hearing evidence as to the oral agreements was tendered on behalf of the respondent and further evidence was led which shortly it might be said was calculated to show a system or course of dealing and conduct adapted by the respondent with regard to his dealing on occasions prior to the present with ether property.

9 It was submitted on behalf of the appellant that the learned judge erred in law in admitting this evidence for the reasons that it was irrelevant to the issue, and further that the learned nudge must have been influenced by the inadmissible evidence to the prejudice of the appellant when he came to decide the main issue whether or not a trust had orally been agreed upon by the parties.

10 It may at once be said that the judge accepted the evidence of the respondent and his witnesses and held that there was proved oral agreements whereby the appellant held the interest in the two properties on the trusts made in those agreements. But he also went on to say in his judgment “that evidence of similar acts or a system of dealings would be admissible to corroborate the testimony or affect the credit of the plaintiff Seenath (respondent)”.

11 Whilst it may justly be said that the learned judge did not use the evidence of ‘system’ as substantive evidence probative of the main issue, whether in fact the oral agreements had been made, the question whether a given piece of presumptive evidence is receivable, or ought to be rejected on the ground of irrelevancy or remoteness is not infrequently a matter of considerable difficulty. Thus in Hollingham v. Head 140 E.R. 1135, in an action for goods sold and delivered, to which the defence was that the sale was subject to the condition that the goods should be equal to Peruvian guano, it was held not competent to the defendant to call witnesses to prove that the plaintiff had made contracts with other persons subject to that condition.

12 It has been urged on behalf of the respondent that the admission of the evidence of ‘system’ even assuming it was wrongly admitted for one purpose but may be said to have- been admissible for another, does not vitiate the whole proceedings and the determination of the case. References have been made to as number of passages from Phipson on Evidence, from Cross on Evidence as well as to others in Halsbury's Laws of England Vol. 15 on the admissibility of evidence in given circumstances. From these it is to be concluded that similar facts are admissible to affect the credit of witnesses, so also similar facts showing states of mind and intention is admissible in evidence, and on this principle in order to rebut a resulting trust and show that a testator intended a payment to be an advance, evidence of similar ordinance to third persons is receivable, see Fowkes v. Pascoe L.R.10 Ch. App. 343 and Re Gooch 62 L.T. 384. In this case the learned judge admitted the evidence complained against but used it as he said merely as corroborative of the testimony of the witnesses as to the oral agreement creating an express trust. In my opinion the learned judge misdirected himself in so doing even for that limited purpose. Similar transactions and declarations must have relevance and to some extent be probative of the fact in issue, moreover that evidence must be contemporaneous or nearly so with the matter sought to be established. The evidence of ‘similar transactions’ ranged between the period 1940 to 1954 and there was no evidence that at the time when the parties entered into the oral agreements concerning the Chin Chin or High Street properties there was any reference to any of these thirteen other transactions or to any of the three in which it was said that the appellant was one of the parties. As Snell puts it in his ‘Principles of Equity’ 22nd Ed. p. 122,

“The acts and declarations of the parties before or at the time of the purchase, or so immediately after it as to constitute a part of the transaction are admissible in evidence either for or against the party who did the act or made the declaration, subsequent acts and declarations are only admissible as evidence against the party who did or made them, and not in his favour.”

13 The evidence of similar transactions went neither in time nor in substance to constitute a part of the transaction i.e. the trust which was sought to be established. For these reasons it was in my judgment improper for Achong J, to have admitted for any purpose the evidence of similar transactions or a course of conduct.

14 It was submitted on behalf of the appellant that this improper admission of evidence entitled him to an order for a new trial and that was as high as he...