Ward v Bhahwandeen and Scotiabank Trinidad and Tobago Ltd

• Jurisdiction: Trinidad & Tobago
• Judge: Rampersad, J.
• Judgment Date: 27 April 2010
• Neutral Citation: TT 2010 HC 117
• Docket Number: 3335 of 2003
• Court: High Court (Trinidad and Tobago)
• Date: 27 April 2010

High Court

Rampersad, J. (Ag.)

3335 of 2003

Ward

and

Bhahwandeen and Scotiabank Trinidad and Tobago Limited

Appearances:

Mr. I. Benjamin instructed by Mrs. M. Harper for the plaintiff.

Mr. A. Manwah for the defendant.

Undue influence - Application to set aside assignment of disputed property to defendant on the grounds that he exerted undue influence over the plaintiff — Plaintiff was an elderly woman who was showing signs of the early stages of Alzheimer's — Circumstances surrounding the “gift” to the defendant suggest that defendant was obviously trying to hide the transaction and to mask its effect for as long as possible — Finding that the plaintiff suffered a disadvantage from the abuse of her relationship with the defendant — Deed of assignment set aside — Evidence that transfer of property not motivated by plaintiff's own free will — Finding of undue influence.

Rampersad, J.

1 This action was commenced on the 1st day of December 2003 by the plaintiff – Norma Ward [suing by her next friends Anita Stoute and Joy Rudder] against Emmanuel Sammy [hereinafter called “the defendant”]. Scotiabank of Trinidad and Tobago Limited was later joined as a party and became the second defendant. However this action was withdrawn against the said second defendant on the morning of the trial upon the terms endorsed on counsel's brief.

2 By way of brief introductory remarks, this action concerns the circumstances under which certain leasehold premises situate at No. 7 Wilson Street, St. Augustine (hereinafter called the “disputed property”) belonging to the plaintiff came into the hands and ownership of the defendant.

3 It appears that the plaintiff resided for many years in the United States, making intermittent visits to Trinidad and Tobago. However from 1998-1999, it seems the plaintiff returned to Trinidad permanently and it was from that period onwards that she became acquainted with the defendant. The relationship that developed between the plaintiff and defendant forms the basis of the allegation of undue influence in this matter, and is determinative of the narrow issue herein, viz, the bona fides of the transfer of the property to the defendant.

THE PLAINTIFF'S CASE:

4 The action was commenced by the plaintiff to set aside a deed of assignment registered as number 15590 of 2000 (relative to the disputed property) as having been procured by the undue influence of the defendant over the plaintiff. In the amended Statement of Claim filed on 12th of July 2004, it is alleged that during the period October 1997 to November 1999 and thereafter, the plaintiff became vulnerable, easily confused and prone to rely upon others in respect of her personal affairs. Her vulnerability arose as a result of the fact that she was 75 years old in the year 2000, had a family history of Alzheimer's disease and had herself demonstrated several instances of being disorientated, forgetful, and other symptoms indicative of the early stages of Alzheimer's disease. As a result, the plaintiff says that she had increasing difficulty in managing her affairs independently. The defendant, who was a long-standing friend of the plaintiff's nieces and other relatives including the plaintiffs sister, visited the household in which the plaintiff lived at 26 De Vertueil Street on an almost daily basis and had his meals there, as a result of which the plaintiff developed a relationship of trust and confidence in the defendant. Further, she says that a de facto relationship of trust and confidence developed between herself and the defendant, like that of a mother and son, since he was trusted by all members of the household as he would take the plaintiff on outgoings of a personal nature to the doctor, the dentist and so on. The defendant accepted and was entrusted with significant sums of money from the plaintiff On 17 May 2000, the plaintiff purported to sign over by way of deed of gift for no monetary consideration the disputed property to the defendant by deed number 15590 of 2000. The plaintiff says that the deed was procured by the undue influence of the defendant. The plaintiff goes on further to say that in or about January 2000, the defendant sought an appointment with his attorney at law to make a gift to him of the disputed property. Over the period of mid-February to early March, acting on the advice of attorney at law for the defendant, the defendant arranged for the plaintiff to visit 2 medical practitioners for the purpose of certifying that she was of sound mind and capable of managing her own affairs. Those doctors were Dr. Sylvester Gadzekpo and Dr. Harry Maharaj. By reason of the said deed of assignment, the plaintiff signed away to the defendant, to her manifest disadvantage, nearly the whole of or a substantial part of her estate in Trinidad. The plaintiff says that she was not given the benefit of any independent legal advice when the defendant's attorney procured an indemnity against all actions, proceedings, claims and demands. By reason of the said assignment, the plaintiff says that the defendant illegally and unlawfully received rents in respect of the disputed property from 1 June 2000 to 2 July 2003 in the sum of $177,000.00. The plaintiff also says that on 22 July 2003, the defendant illegally and unlawfully mortgaged the disputed property to the 2nd named defendant.

THE DEFENDANT'S CASE:

5 In his defence, the defendant says that the plaintiff, at all material times, appeared to him to be clear minded, logical and well aware of her surroundings and quite self-assured and independent. She did not show signs of any of the mental conditions referred to by the plaintiff in the Statement of Claim. He admits that he and the plaintiff became close friends and developed a sound and mutual friendship but that, at all material times, the plaintiff did not appear to be disoriented, forgetful or suffering from any mental disorder since she was, at all times, cognizant of her surroundings and persons around her. He said that she spoke logically, reasonably and intelligently, she was independent, self-reliant and her behaviour and manner were such that she did not appear to be, and he had no reason to believe, that she was suffering from any vulnerability or mental disorder. The defendant says that he found the plaintiff to be very strong-minded and engaging. He went on to deny that she had any difficulty in managing her affairs independently or was reliant on relatives or strangers to organize her day to day affairs. He relied on a letter dated 11 February 2000 from Dr. Maharaj and a letter dated 8 March 2000 from Dr. Gadzekpo confirming the plaintiff's mental capacity to conduct the transaction. The defendant pleads an estoppel in respect of the plaintiff who would have executed a poll of attorney dated 12 July 2000 and registered as 14811 of 2000 in favour of her niece Anita Stoute. That power of attorney, the defendant says, was relied upon by the plaintiff even though it was executed after the deed of assignment in favour of the defendant. Defendant denies that he was at any time the plaintiff's advisor or that he was ever entrusted with the management of her day to day affairs. He said he never related, dealt with or treated the plaintiff in any manner or position of dominance or superiority, either emotionally, financially or otherwise. He said that he was never requested by the plaintiff to discuss, advise or give his opinion on the management or utilisation of her children's bank account, pension, or other sources of income or property. He says that the plaintiff at all times held her own counsel and opinions and did not rely on his advice or opinion before making any decisions. The genesis of the defendant's relationship with the plaintiffs nieces stemmed from the fact that his mother and Daphne Cobham [the plaintiff's sister with whom she resided at No. 23 Verteuil Street] were good friends and that from around 1990, Daphne and himself became closer through mutual grief and Daphne began to treat him like a son and helped him to come to terms with his mother's death. The defendant went on to say that Daphne and her sister would discuss matters with him and sought his opinion on matters but they were neither reliant nor dependent upon his advice and he was not their confidant as claimed by the plaintiff He admitted taking the plaintiff around from time to time in his motor vehicle since she had no motor vehicle and did not drive in Trinidad and Tobago. He said on occasion, the plaintiff would take a taxi to move around and did so without the defendant. He admitted receiving the sum of $50,000 from the plaintiff for the use and benefit of Julian Albo [the plaintiffs nephew in Jamaica] in August of 2001 which was paid out some time thereafter to him. He also admitted receiving the sum of $67,724.35 from the plaintiff representing payment for work and renovations effected on the property at 23 De Verteuil St. for Daphne and which was extended and paid by him to one Samuel Brown, a contractor/worker for labour and materials on the said property. He denies receiving significant sums of money from the plaintiff otherwise. He said the plaintiff's relatives, including Anita Stoute, were aware of these transactions and approved and/or did not voice any objections thereto. He denies standing in a position of trust and confidence in relation to the plaintiff for which he was able or capable or guilty of exercising undue influence since the nature of the relationship between himself and the plaintiff was not one that rendered her dependent upon him and she did not rely on his advice or opinions and was never under his domination or control. He says that in making her decision to give him the property and in executing the said deed of assignment, the plaintiff acted freely and fully of her own volition, in pursuance of her desire, and in the free exercise of her own...