Webster Browne v Nawbert Rampersad, Taran Rampersad

JurisdictionTrinidad & Tobago
JudgeDean-Armorer,Moosai,M. Dean Armorer J.A
Judgment Date23 June 2022
Neutral CitationTT 2022 CA 027
Docket NumberCIVIL APPEAL NO. P 247 OF 2017
CourtCourt of Appeal (Trinidad and Tobago)
BETWEEN
Webster Browne (Substituted for Joan Alexander by Order of the Court of Appeal)
Appellant/Defendant
and
Nawbert Rampersad
First Respondent/First Claimant
Taran Rampersad (Substituted for Chandrawatee Rampersad by Order of the Court of Appeal)
Second Respondent/Second Claimant
Panel:

Justice of Appeal Moosai

Justice of Appeal Lucky

Justice of Appeal Dean-Armorer

CIVIL APPEAL NO. P 247 OF 2017

CLAIM NO CV 2016-04469

THE REPUBLIC OF TRINIDAD AND TOBAGO

Appearances:

Ms. Ruth E. van Lare instructed by Ms. Dzifa van Lare for the Appellant

Ms. Nalini Sharma instructed by Ms. Andrea Goddard for the Respondent

I have read the judgment of Dean-Armorer JA I agree.

Moosai JA

I have read the judgment of Dean-Armorer JA. I also agree.

Delivered by M. Dean Armorer J.A

Introduction
1

In this appeal, the principal issue which engaged the Court's attention was whether the Judge was plainly wrong in refusing an adjournment, which had been sought on behalf of the late Joan Alexander, then the Defendant before the High Court.

2

In 2006, the late Joan Alexander had entered an into an agreement for the purchase land from Nawbert and Chandrawatee Rampersad, ‘the Respondents’. Many years later, the Respondents instituted proceedings against Ms. Alexander. Upon her failing to file an appearance, the Respondents applied for judgment in default of appearance and of defence.

3

On the date of the hearing of the application for judgment, Ms. Alexander did not appear in Court, but was represented by someone, who claimed to have been her brother, and who applied for an adjournment on her behalf. The Judge refused the adjournment and entered judgment.

4

It is against the Judge's refusal that Ms. Alexander has appealed. Before the hearing of the appeal however, Ms. Alexander died and the Court made an order substituting Mr. Webster Browne.

5

In the course of arriving at this decision, we explored the factors, which ought to be taken into account by a trial judge in deciding whether or not to grant an adjournment.

6

We also considered the role of the first instance court in granting relief on a default judgment; whether declaratory relief was appropriate in such applications and whether a Judge was required to consider the merits of a claim, before granting relief.

7

As will become apparent below, we held the view that the Judge had wrongly exercised her discretion and had failed to take into account relevant factors. We held that, the Judge failed to consider whether the claim lacked merit and she failed to consider whether declaratory orders were appropriate to the claim before her.

Disposition
8

The Appeal is allowed and the orders of the trial Judge are set aside.

9

The claim is remitted to the Judge for further hearing of the application for an adjournment in accordance with the guidelines set out in this judgment.

Factual Background
10

Nawbert Rampersad and Chandrawatee Rampersad (the Respondents) are the registered owners of a parcel land in the ward of Tacarigua. The parcel comprises six (6) acres and thirty-two perches and is more particularly described in the Statement of Case filed on behalf of the Respondents in December 13, 2016. 1

11

On August 16, 2006, the Respondents entered a Purchase Agreement with Joan Alexander, (deceased) for the sale of a portion of the land described above. According to the Purchase Agreement, the parcel which was being sold would comprise “not less than three acres and not more than five acres of land …” The agreement was not signed by Ms. Alexander but by a third party Clyde Edwards. The agreed purchase price was $275,000.00.

12

In February, 2006, prior to the execution of the Agreement, Ms. Alexander had paid to the Respondents the sum of $25,000.00 and in August, 2006, Ms. Alexander paid a further $50,000.00.

13

In March 2008, the Respondents received the permission of the Town and Country Planning Division to sub-divide their land into two plots. Two years later, on August 17, 2010, Mrs. Rampersad entered a handwritten supplemental agreement with Ms. Alexander in relation to 3.06 acres of land. With the second agreement, Ms. Alexander made a further payment of $22,000.00.

14

Without making any further payments however, Ms. Alexander lodged a caveat against the property, in December 2013.

15

The following year, 2014 saw an exchange of correspondence between the Respondents and Ms. Alexander. On May 19, 2014, Lal Krishna Doodnath of L. K. Doodnath and Co. wrote on behalf of Ms. Alexander requesting a return of her payments with interest. Mr. Doodnath indicated that the Rampersads, as vendors, had failed to obtain planning permission; had failed to provide approved portion plans for the parcel of land to be sold and had failed to furnish the certificate of title. 2

16

In response, Attorney-at-law, Saisnarine D. Maharaj, wrote on behalf of the Respondents on June 12, 2014. Mr. Maharaj indicated that his instructions were that Ms. Alexander had been persistently in default and unable to complete. He also indicated that the items sought were available.

17

On October 2, 2015, Attorney-at-law, Andrea Goddard penned a pre-action protocol letter, calling upon Ms. Alexander to complete, in default of which legal proceedings would be instituted for the removal of the caveat. On December 13, 2016, the on the

Respondents made good their threat of legal action and filed the proceedings, which were considered by the Judge
18

The Respondents sought the following relief:

  • “i. A declaration that the document entitled “Purchase Agreement” dated the 16 th of August, 2006 purportedly made between Nawbert Rampersad and Chandrawatee Rampersad of the One Part and Joan Alexander of the Other Part, and the handwritten document dated the 17 th of August, 2010 purportedly made between Joan Alexander of the One Part and Chandrawatee Rampersad of the Other Part are null and void, and are not binding on the Claimants or either of them;

  • ii. A declaration that the Claimants are discharged from performance of the purported contract or contracts;

  • iii. An order directing the Registrar General to remove the caveat lodged by the Defendant relevant to the Claimants’ lands described in Certificate of Title Volume XXXV Folio 491,

  • iv. A declaration that any payments made by the Defendant to the Claimants have been forfeited and the Claimants are entitled to retain same.

  • v. Cost

  • vi. Such further and/or other relief as to the Court may seem just.”

19

Ms. Alexander filed neither an appearance nor a defence. In response, the Respondents filed a Notice of Application seeking judgment in terms of their Claim form on the ground that there was default of appearance and defence. 3

20

The Notice of Application for judgment in default was supported by the affidavit of attorney-at-law Andrea Goddard. The affidavit of Ms. Goddard was brief. She referred to the filing of the claim, the successful application for permission to dispense with personal service and to serve by pre-paid registered post. She stated further that the Defendant had failed to enter an appearance.

21

On June 23, 2017, the Application for judgment came up for hearing before the trial Judge. At the hearing, Mr. C. Husbands- Edwards appeared. He told the Judge that he was the brother of the Ms. Alexander and he asked for an adjournment on her behalf.

22

Ms Alexander herself had forwarded a letter to the Judicial Support Officer (JSO) to the Judge, on June 22, 2017. The letter was sent by fax and by email. Ms. Alexander wrote:

PLEASE BE ADVISED THAT I CANNOT APPEAR IN COURT ON THIS DATE 06/23/2017 BECAUSE OF MEDICAL CONDITION PRESENTLY UNDERGOING IN KINGS COUNTY HOSPITAL…”

THEREFORE I WOULD BE VERY GRATEFUL THAT THIS CASE BE ADJOURNED TO ANOTHER DATE….”

The letter bore the stamp of a notary public. Ms. Alexander annexed a report dated May 30, 2017 from Kings County Hospital.

23

Ms. Alexander also asked someone to call on her behalf. The unnamed person spoke to judicial secretary, Irma Rampersad. Ms. Rampersad sent this email to the Judge's JSO, Marlene Dean:

“Today I received on overseas call from someone who called on behalf of Ms. Joan Alexander. Unfortunately, Ms. Alexander who is the Defendant in the matter is unable to attend Court on the 23 rd June, 2017 because she is warded of the King's County Hospital and she does not have an attorney-at-law….”

24

In spite of the above requests, the Judge refused the application for the adjournment and granted these orders in default of appearance:

“IT IS ORDERED AND DECLARED THAT:

1. The document entitled “Purchase Agreement” dated 16 th day of August, 2006 purportedly made between Nawbert Rampersad and Chandrawatee Rampersad of the One Part and Joan Alexander of the Other Part, and the handwritten document dated the 17 th day of August, 2010 purportedly made between Joan Alexander of the One Part and Chandrawatee Rampersad of the Other Part are null and void, and are not binding on Claimants or either of them.

2. The Claimant and either of them are discharged from performance of the said purported contract or contracts

3. Any payments made by the Defendants to the Claimants have been forfeited and the Claimants are entitled to retain same.

4. The Registrar General is hereby ordered to expunge the Caveat lodged by the Defendant relevant to the Claimants’ lands described in Certificate of Title of Volume XXXV Folio 491.

5. The Defendant do pay the Claimants prescribed cost in the sum of Fifteen Thousand and Thirty Dollars ($15, 030.00).” 4

The Judgment
25

In her written Reasons dated August 16, 2016, the Judge explained why she refused the application for the adjournment and granted the relief as sought by the Claimant.

26

She alluded to the appearance of Mr. C. Husbands Edwards in court on June 23, 2017 but did not indicate whether she had asked the reason for the...

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