republic of trinidad and tobago in the high...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No.: CV2012-00801

BETWEEN

ZEENA ESCOVALEZ

Claimant

AND

GERARD TORRES

Defendant/Ancillary Claimant

AND

GANESH BAHADOORSINGH

First Ancillary Defendant

URMILLA BAHADOORSINGH

Second Ancillary Defendant

SAMMY SOOPAYA

Third Ancillary Defendant

MARK SOOPAYA

Fourth Ancillary Defendant

GIRWAR & DEONARINE

Fifth Ancillary Defendant

Before the Honourable Mr. Justice Vasheist Kokaram

Date of Delivery: 21st March 2014

Appearances:

Mr. David Alexander instructed by Mr. Dave de Peiza for the Claimant

Mrs. Donna Prowell-Raphael instructed by Ms. Christiane Prowell for the Defendant/

Ancillary Claimant

Mr. Shadeed Hosein instructed by Mr. Ramcoomarsingh for the First, Second, Third and

Fourth Ancillary Defendants

Ms. Susan Moolchan instructed by Ms. Saajida Narine for the Fifth Ancillary Defendant

JUDGMENT

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Introduction

1. The Defendant, Mr. Gerard Torres lives with his family at No. 9 Agostini Street, Elizabeth

Gardens, St Joseph. It is described in his deed of conveyance and referred to in this judgment

as Lot 9. The Claimant, Ms. Zeena Escovalez also claims to be the owner of Lot 9 and has

brought these proceedings against Mr. Torres for inter alia possession and damages for

trespass. Lot 9 forms part of a building scheme in St. Joseph known as Elizabeth Gardens

which was developed by Mr. Sammy Soopaya on a portion of lands of what is known as the

Leonville Estate owned by him together with his wife Ms. Mary Soopaya, Mr. Ganesh

Bahadoorsingh and Ms. Urmilla Bahadoorsingh (“the ancillary Defendants”).

2. Ms. Escovalez claims that Lot 9 was conveyed to her by one Ms. Usha Halkhoree

Ramkissoon acting in her capacity as executrix for the estate of the last surviving owner

(“Ms Ramkissoon”1) of the parcel of land by deed dated 29

th September 1994, and registered

as No. 17690 of 1994 (“the Escovalez conveyance”). Mr. Torres claims that Lot 9 was

conveyed to both him and his wife Virginia by the first four ancillary Defendants by deed

dated 11th

May 2007 and registered as No. DE200702247953 (“the Torres conveyance”).

3. The Escovalez conveyance was executed after a judgment had been registered against Ms.

Ramkissoon and after the judgment creditor had issued and served a summons for sale

against her with respect to all the lands owned by her in that capacity. These lands were

described in her deed as being “the unsurveyed portion of the Leonville Estate comprising

approximately 20 acres”, which included Lot 92 (“the Ramkissoon lands”).

1 References to Ms. Ramkissoon in this judgment is a reference to her acting in the capacity as executrix of the

estate of Mr. Wilfred Joognoon Ramkissoon, the deceased. 2 ALL AND SINGULAR the whole of the unsurveyed portion of Leonville Estate comprising approximately TWENTY

ACRES situate at the St. Joseph in the Ward of Tacarigua and abutting on the North partly upon lands formerly of Leonville Estate now belonging to Ray Gransaull partly upon a Road abutting on Lot Nos. 131, 132, 133, 134, 135 and 136 of Leonville Estate and partly upon lands of Chatlal on the South partly upon Lot Nos. 100, 101, 129 and 130 of Leonville Estate partly upon a Road abutting on Lot Nos. 150, 151, 152, 153, 154, 155, 156 and 157 of Leonville Estate partly upon Lot Nos. 105, 106, 107, 108, 109, 110, 111, 112 and 112a of Leonville Estate partly upon lands of Joseph Sooknanan partly upon lands of Ramkeeson and partly upon Rafferty Street on the East upon a Ravine and on the West partly upon Champs Fleur Estate partly upon Lot Nos. 113, 114, 115, 116, 117, 118, 119 and 120 of Leonville Estate partly upon lands of Chatlal and partly upon Lot No. 157 of Leonville Estate or howsoever else the same may be butted or bounded save and except the several parcels sold and conveyed therefrom.

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4. The Ramkissoon lands were eventually sold by public auction pursuant to the order of

Bharath J made on 5th

October 1994 upon hearing that summons for sale. The said sale was

effected by deed of conveyance dated 9th

February 1995 (“the Registrar’s conveyance”)

executed by the Registrar of the Supreme Court3 to Mr. Richard Teelucksingh (as trustee for

East West Development Company Limited).4 In the Registrar’s conveyance Lot 9 was not

specifically excluded from the lands sold by public auction. The Escovalez conveyance was

only registered on 2nd

November 1994 after this order for sale by public auction had been

made.

5. On the other hand Mr. Torres purchased Lot 9 from the first four Ancillary Defendants who

had obtained a parcel out of the Ramkissoon lands sold at the public auction. Subsequent to

the Registrar’s conveyance, by deed of confirmation dated 13th

February 1996 Richard

Teelucksingh conveyed the Ramkissoon lands (“save and except the several parcels sold and

conveyed therefrom”) to East West Development Company Limited. Subsequently by deed

of conveyance dated 9th

September 2005 East West Development Company Limited

conveyed a portion of that land (parcels E and F) to the first four ancillary Defendants who

developed the land into the building scheme known as Elizabeth Park Phase 1. From this

scheme the land was subdivided into various lots from which Lot 9 was sold to Mr. Torres

and his wife with a dwelling house for a sum of $1.35m.

6. At the trial the principal issue to be resolved is whether the Escovalez or the Torres

conveyances was effectual to pass proper title to Lot 9. Ms. Ramkissoon was the beneficial

owner of Lot 9 when she conveyed it to Ms. Escovalez. Ms. Ramkissoon was also the

beneficial owner of Lot 9 at the date of the registration of the judgment on 7th

April 1994 and

when the summons for sale was issued and served on her. Ms. Escovalez contends however

that as at the date of the actual order for sale in October 1994, Ms. Ramkissoon was no

longer the beneficial owner of Lot 9 and therefore Lot 9 was not and could not have been

included as part of the Ramkissoon lands in the Registrar’s conveyance. Mr. Torres has not

only defended this claim but issued an ancillary claim against the four ancillary Defendants

3 The Registrar executed the deed pursuant to the provisions of the Remedies of Creditors Act.

4 As shown in the subsequent deed of confirmation dated 10

th October 1995 made between Richard Teelucksingh

and East West Development Company Limited.

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who sold him the land as well as the attorney at law, the fifth ancillary Defendant who

prepared the search on title for Lot 9 and drafted the conveyance. He is seeking an

indemnification and damages against the vendors and damages for negligence against the

attorney at law.

7. Critical to resolving this issue is whether the effect of registering the judgment against Lot 9

in April 1994 pursuant to the provisions of the Remedies of Creditors Act Chapter 9:03

(ROCA) had the effect of preserving the title in Lot 9 for an eventual conveyance in a sale

under a summons for sale. The simple answer to that issue is yes. The Registrar’s

conveyance nullified any purported sale of Lot 9 by the judgment debtor to any person which

took place after that judgment had been registered and before the order for sale.

8. The purpose of registration of a judgment under the provisions of the ROCA is to charge the

lands with the judgment as at the date of the judgment being registered pursuant to the

provisions of the ROCA. The judgment creditor is now protected under the ROCA to take

whatever steps necessary to enforce the judgment, and the eventual sale of the lands

completes the process of execution. The charge of course does not prevent the debtor from

conveying his beneficial or equitable interest in the land to a third party but significantly (a)

the third party takes notice of the charge (b) the charge runs with the land which may

crystallize with an eventual sale under section 37 of the ROCA (c) accordingly there is an

encumbrance on the debtors title and she cannot pass good title.

9. Ms. Escovalez then having acquired Lot 9 from Ms. Ramkissoon, the judgment debtor, after

the judgment was registered, took notice of the charge and the risk that it may be sold

pursuant to the provisions of the ROCA. The Registrar was therefore capable of passing good

title to Lot 9 pursuant to the provisions of section 39 of the ROCA in his conveyance as the

judgment debtor, Ms. Ramkissoon, was the beneficial owner of Lot 9 as at the date the

judgment was entered. As a consequence Ms. Escovalez has no right, nor title to Lot 9 after

the date of the Registrar’s conveyance.

10. The claim and ancillary claim would be dismissed with costs and there will be judgment for

the third ancillary Defendant against the ancillary Claimant on its counterclaim with costs as

explained in this judgment.

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The proceedings:

11. Ms. Escovalez sought the following relief: recovery of possession of Lot 9, alternatively an

order that the Defendant do purchase from the Claimant Lot 9 at its current market value and

damages for trespass. I confess that I was at a loss to understand the basis upon which the

Court can order the Defendant to purchase the premises at its current market value and no

authority was submitted to this Court to justify any such relief. Her claim essentially was one

for possession and damages for trespass. The facts as set out in its statement of case are quite

simple. The Claimant purchased Lot 9 by a deed of conveyance dated 29th

September 1994

and registered as No. 17690 of 1994. The said premises was at the time vacant. In 2005 she

noticed that the land was cleared and concrete drains were constructed to the front and

building materials were placed on the land. In 2008 the Claimant observed a modern well

built concrete dwelling house. She did not give anyone permission to occupy or construct any

buildings on the land. Her valuators Charles B Lawrence and Associates gave an opinion

dated 31st January 2012 that the market value of the said land was $600,000.00. She

commenced these proceedings on 28th

February 2012.

12. Ms. Escovalez was never in actual possession of the land and the claim is therefore premised

on her having a superior title to the property. Her case is simply that Mr. Torres had no right

to be there. This being the case, the onus is on the Claimant to strictly prove her title. On this

issue the Wooding CJ in Olga Charles v Singh Civ App. 50 of 1960 commented:

“The case for the respondents was that the appellant had no right to be there: in other

words that she was a trespasser. That being so they had to prove their title and to prove it

strictly. Merely putting in a certified copy of a deed whereby two or three months before

they purchased a lot of land from the alleged owner is not proof of title. It would be

necessary to show that the vendor of the lot had a right to sell, that is to say a title which

she could pass on. And in the absence of that proof of title of the respondents was not

proved.”

13. See also Ramnarine Ramdhan and anor v Nora Solomon HCA 522 of 1975. The

Claimant failed to prove her title in her statement of case and in her evidence. However the

Defendant has not taken issue with this defect and in fact has set out fully the title of the

Claimant in these proceedings and in his submissions.

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14. In his Defence, Mr. Torres defends the action on three main limbs:

(a) That the Claimant is not the registered owner of Lot 9. In support of this he contends

firstly that he had a superior title by tracing it to the Registrar’s conveyance and by making

reference to his attorneys at law deducing title for Lot 9 for the requisite period of 30 years.

Secondly, he also contends that the Claimant and the Defendant’s parcel was physically not

the same parcel of land.

(b) That the Claimant waived and abandoned her rights to bring a claim and is estopped from

maintaining the action or obtaining relief. Indeed the Claimant allowed a period of some 8

years to elapse before bringing the claim. This contention of the Defendant however goes

towards the quantum of damages and not necessarily debarring the Claimant from bringing

her claim within the limitation period. I had indicated quite early in these proceedings that

even if the Claimant was successful it is doubtful she would be entitled to any significant

sum in damages having regard to her delay.

(c) Assuming but not conceding that the Claimant had any right, interest or entitlement to the

Defendants’ land then that right or entitlement or interest does not exceed $25,000.00, the

purchase price in the 1994 Deed.

The report of Arnold Ramon Fortuné

15. At the first CMC the issue as to whether both parties were making reference physically to the

same parcel of land needed to be clarified. Sensibly the parties agreed to the appointment of a

surveyor to determine if in fact Lot 9 was the same lot described in the two deeds. It was also

asked of the surveyor to determine if Lot 9 was part of the parcel of land that was sold at the

auction. The Claimant agreed to withdraw the claim if in fact it was found that Lot 9 formed

part of the lands that was sold at the auction. The Court exercised its powers pursuant to rule

33.6(4) CPR to appoint a surveyor to answer these questions.

16. Ramon Fortuné was assigned the task and his report dated 12th

November 2012 was

submitted to the parties. It is accepted that his report is partially relevant and the relevant

findings are to be adopted for these proceedings. Mr. Fortuné has described Lot 9 as the same

parcel in both deeds with some minor discrepancies which can be explained in surveying

terms. All parties now accept based on that report that Lot 9 which is the subject of both

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deeds is in fact the same parcel of land. This therefore resolves one of the main issues in the

Defendant’s defence.

17. Matters were however complicated by Mr. Fortuné’s findings on whether Lot 9 formed part

of the Ramkissoon lands sold pursuant to Justice Bharath’s order. Mr. Fortuné concluded that

it was not and that therefore when the order was made it did not include Lot 9. Mr. Fortuné

concluded that when the Defendant, Mr. Torres, purchased Lot 9 it was already owned by

Ms. Escovalez. This was perhaps his attempt to reconcile the dates of the Escovalez purchase

and the Registrar’s conveyance. However it is a conclusion made without reference to the

law and the effect of the ROCA and falls outside Mr. Fortuné’s expertise. He clearly made

legal inferences in his report an area in which he is not an expert and falls outside the remit

of the order. It is by no means a conclusive view on the issue which must be determined by

this Court, as to which of the parties has proper title to Lot 9. It is also common ground by

the parties that this aspect of Mr. Fortuné’s report is to be disregarded for the purposes of

these proceedings.

18. In response to that report there were two developments. First, a report on title by one Mr.

Robin Ramcoomarsingh, who acted for the developers of Elizabeth Park, was submitted to

the Court and later formed part of the proceedings. It traced the title of Lot 9 which was sold

to Mr. Torres.

19. Second as it was the first time Mr. Torres was learning that his title may be in doubt he

issued an ancillary claim against the ancillary Defendants on 18th

February 2013. From the

ancillary claim it would appear that the Defendant was now prepared to take a back seat to

the litigation and that if there is any merit in the claim of the Claimant, then it was his

vendors and his attorney at law who is liable and not him. Mr. Torres in his ancillary claim

claimed the following reliefs:

“a. An order that this action do continue between the Claimant and the Ancillary

Defendants on the issue of title to the Defendant’s lands;

b. Alternatively;

i. A Declaration that the first four Ancillary Defendants are in breach of the

covenant implied by the Conveyancing and Law of Property Act in that they

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have failed to satisfy the covenant for title implied by the by section 27(1)(A.)

of the Act into the defendant’s Deed;

ii. As against the fifth Ancillary Defendant, damages for negligence.

c. In the event the Court finds against the Ancillary Defendants, an inquiry into the loss

and damage suffered by the Defendant/Ancillary Claimant as a consequence of the

said breach of covenant of the first four Ancillary Defendants and or the negligence of

the fifth Ancillary Defendant;

d. That the Ancillary Defendants do pay to the Defendant/Ancillary Claimant by way of

indemnity and damages the sum of six million dollars ($6,000,000.00) pursuant to

section 27(1)(A.) of the Conveyancing and Law of Property Act or such further or

other sum as the court may determine upon taking the necessary accounts and

inquires.”

20. The ancillary claim was premised on the Ramon Fortuné report and Mr. Torres asserted that

“the inference to be drawn from the said findings of Mr. Ramon Fortuné is that the first four

ancillary Defendants did not have title to the Defendant’s lands to convey it to the Defendant/

ancillary Claimant and his wife as they purported to do in the Defendant’s deed”. He alleged

that the first four ancillary Defendants were in breach of the covenant for title implied by

section 27 (1) (A) of Conveyancing and Law of Property Act Chap 56:01. In his claim

against the fifth Defendant he alleged that he proceeded with the purchase of Lot 9 on the

mistake created and brought about by the erroneous report on title made by the first ancillary

Defendant. The fifth ancillary Defendant was therefore negligent in breaching their duty of

care expected of a reasonable and competent attorney in carrying out investigations of title

and searches.

21. The third and fifth ancillary Defendants filed their respective defences by May 2013. The

first CMC for the ancillary claim was convened on 27th

May 2013.

22. The first, second and fourth ancillary Defendants responded by contending that they are not

proper parties to this action and applied to strike out the claim as against themselves on the

basis that they were not the vendors for Lot 9. They indicated to the Court that if this

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submission failed they would not lead any evidence and will rely on the third Defendant’s

evidence which essentially raised a defence that they conveyed proper title.

23. The third Defendant in its Defence deduced its root of title commencing from 1937 and

alleged that he passed good title to Mr. Torres. He also filed a counter claim for:

“(a) A declaration that the third ancillary defendant herein deed dated the 16th

day of

August, 2007 and registered as Deed No. DE200702247953 conveying to the Ancillary

claimant/defendant the property and land described therein is valid and effectual in

passing to the Ancillary claimant/defendant the property and land described therein is

valid and effectual in passing to the Ancillary claimant/defendant a valid, effective, and

marketable title.

(b) A declaration that the deed dated the 29th

day of September, 1994 and registered as

Deed No. 17690 of 1994 conveying to the original claimant herein the land described

therein by Usha Halkhoree Ramkissoon as Legal Personal Representative of Wilfred

Joognoon Ramkissoon, also called Ram Krishna Ramkissoon Halkhoree, deceased is

invalid, ineffectual, null and void, and incapable of passing to the original claimant a

valid, effective, and marketable title to the land described therein.

(c) A declaration that the deed dated the 29th


Deed No. 17690 of 1994 conveying to the original claimant herein the land described

therein is subject to the Judgment registered on the 7th

day of April, 1994, in High Court

Action No. 675 of 1994 between Asha Sankar as Plaintiff and Usha Ramkissoon, as (the

Legal Personal Representative of Wilfred Joognoon Ramkissoon, deceased).

(d) That the Ancillary claimant/defendant and/or the original claimant and/or both do pay

to the third ancillary defendant’s costs of and incidental to this action.”

24. The fifth Defendant raised a spirited defence on the basis that it deduced proper title and was

not negligent. It also set out the root of title to Lot 9, alleged that the Ramon Fortuné report is

erroneous and misconceived, that the action is statute barred, discloses no reasonable cause

of action and is an abuse of process.

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25. At the CMC in managing both claims, I questioned the need for the claim in negligence

against the attorneys at law and the parties agreed to place that claim on the “back burner” so

to speak while the other claims were managed further. I ordered the claim and the ancillary

claim against the third Defendant to be tried first. It was after the stage of discovery and

filing of the witness statements when it became apparent that the Defendant was joining with

the Claimant’s view of the defective title, I then revisited my order and directed that all the

claims are to be ventilated at the same time so as to give the fifth Defendant the opportunity

to defend any allegations being made as to the title to Lot 9. The fifth Defendant eventually

filed its witness statement of its conveyancer Mr. Michael Kallicharran.

26. As the proceedings progressed however, it appeared that the Defendant increasingly favoured

the view that his title was bad and that the Claim against him was a good one. This was a

significant event for as the litigation progressed, there was a synergy in the submissions

being made by both the Claimant and the Defendant on the alleged defects in the title of Mr.

Torres and he began to assert forcefully as against the ancillary Defendants that he purchased

a defective title to Lot 9.

27. At the pre trial review the Fifth Defendant also filed an application to strike. However as the

proceedings were at an advanced stage with the trial set for a few days later, I decided to treat

with the grounds for all the applications to strike as issues for determination at the trial.

Those issues would be whether the first, second and fourth Defendants are proper parties to

the action, whether Mr. Torres has priority in title over Ms. Escovalez and whether the claim

is statute barred.

28. At the trial the Claimant led evidence. Significantly under cross examination there is no

reasonable nor credible explanation for the delay in commencing her claim. The Claimant sat

on her rights while an entire house and building scheme was developed. She noticed first a

concrete drain being built in 2005 and building material and made absolutely no enquiry nor

attempt to stop the construction. Her next visit was three years later in 2008 when she saw a

house built on her land and again made no enquiry nor complaint until commencing the

action in 2012. Her explanation that it was in the hands of her first attorney at law who did

nothing is rejected. She made no mention of this in her witness statement and it is a vague

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and uncorroborated statement and I got the distinct impression in her cross examination that

it was manufactured evidence to fill the gaping void that was her inactivity.

29. The Defendant testified on his behalf. He was quite hostile to the Ancillary Defendants.

According to him they did him a gross disservice in leading him to believe that they were in

fact the owners and could sell the property. Indeed he confessed that he cannot contest the

Claimant’s claim. He was very emotional over the fact that his home is now in jeopardy due

to the defect in title. This Defendant also issued two witness summons: one to the Assistant

Registrar Ms. Shabiki Cazabon who produced into evidence the proceedings in HCA 675 of

1994. This was quite useful to understand the context and chronology of those proceedings. It

also gave an insight into the report on title which was before the Court on making the order

for sale. Also giving evidence was Whitney Charles, Legal Officer of the Registrar General’s

Department who tendered the deeds for all the parcels of land extracted from the Ramkissoon

lands.

30. The third Ancillary Defendant gave evidence. There was no significant challenge to his

evidence save that where he purported to give his opinion on the title it was observed that it

will be a matter for this Court to determine. Finally Mr. Michael Kallicharran attorney at law

and conveyancer of the fifth Defendant gave evidence on behalf of the fifth Defendant

adducing the report on title. It was his evidence, which was not contested, that the original

report on title was among some items that was stolen from the attorney’s vehicle. There is no

real issue and none was made of it under cross examination that the report on title would not

have been the same as the one which Mr. Kallicharran produced. There are three important

aspects of his cross examination. First that as a conveyancer he was tracing the title to Lot 9.

Second upon seeing the conveyance to Ms. Escovalez he would not have alerted the

purchaser Mr. Torres as in his opinion the effect of the ROCA would give the Registrar’s

conveyance priority over the Escovalez conveyance. Third that the Registrar’s conveyance

would have the effect of conveying the Ramkissoon lands save those lots that were extracted,

but Lot 9 would have been conveyed by the Registrar’s conveyance on the basis that Lot 9

was still owned by the debtor on the date of the registration of the judgment.

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31. Mr. Ramon Fortuné was not cross examined and his report with the caveat mentioned above

was accepted.

32. At the conclusion of the trial at the stage of closing submissions, the Claimant formally

indicated that it would not pursue its claim for possession. It certainly could not in light of

her evidence of sleeping on her rights for a period of eight years. The ancillary Claimant

therefore abandoned his claim for damages for negligence leaving however the issue of an

indemnification against all five Defendants in the event that it was ordered to pay to the

Claimant any damages or costs.

The Title to Lot 9

33. Both the Defendant and the Ancillary Defendants set out their title to the property. It is not

important for the purposes of this judgment to set out in detail the respective chain of title for

Lot 9 commencing in 1937. Their chain in title has not been challenged save to the extent of

the ability of the Registrar to give good title for Lot 9. The Registrar General attended Court

and produced all the relevant deeds in relation to the Ramkissoon lands and those extracted

therefrom spanning a period of 1937 to 2004.

34. From this evidence the following facts are important and are not in dispute:

(a) The main parcel of land from which Lot 9 was extracted since 1937 was always

described in the manner set out in the Registrar’s conveyance.

(b) Eventually that parcel of land was vested in Wilfred Joognoon Ramkissoon by the

principle of survivorship. He departed this life on 23rd

December 1983.

(c) Ms. Ramkissoon was named as the executrix of the deceased.

(d) Ms. Ramkissoon since being appointed the executrix of the estate of the last surviving

owner of the said land sold a number of lots from those lands some of which were

Lots 86, 90, 106, 20, 117, 4, 5, 889m, 650ms, Lot 86, Lot 113, Lot 112, Lot 105, Lot

114, Lot 41, 26, 99, 100, 116, 39, 38, 83, 19, 87, 106, 111, 118, 119, 101, 103, 18A,

104, 35, 78, 7, 84, 110, 46, 70, 108, 81, 80, 9.

(e) Lot 9 was only described in the Escovalez and Torres conveyances.

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(f) The Escovalez conveyance for Lot 9 was registered after the order was made on the

summons for sale and would not have formed part of the report on title before the

Court.

(g) Lot 9 was described in the two deeds to Ms. Escovalez and Mr. Torres. The first

before the sale and the second after the sale. However both were deeds executed after

the judgment was registered.

(h) There is no other lot sold by the debtor, Ms. Ramkissoon, after the judgment was

registered save for Lot 9.

The ROCA proceedings in HCA675/94

35. The order for sale made by Bharath J in HCA 675 of 1994 was as follows:

“Upon reading the Summons filed herein on the 22nd

day of April, 1994, and the affidavit

of Raymond Sowley sworn to and filed herein on the 22nd

day of April, 1994, in support

thereof and upon hearing Attorney at Law for the Plaintiff/Execution Creditor, the

Defendant not appearing. It is hereby ordered that there shall be put up for sale all and

singular the whole of the unsurveyed portion” of the Ramkissoon lands.”

36. This was the order made on a summons for sale filed pursuant to the ROCA. In that claim

Asha Sankar obtained judgment against Ms. Ramkissoon. Ironically that action was a claim

for specific performance of an agreement of sale of Lot 96 from the Ramkissoon lands or the

return of the deposit of $10,000.00. On 29th

March 1994 the judgment creditor obtained

judgment for the sum of $7,500.00 and costs to be taxed. The judgment was registered on 7th

April 1994 and a summons for sale was issued on 22nd

April 1994. Interestingly in paragraph

3 of the affidavit in support of the summons for sale it is deposed that as at the date of the

judgment 7th

April 1994 the Defendant was and still is the beneficial owner of an interest in

the parcel of land described in the application on the Ramkissoon lands. There is no dispute

that as at the date of that affidavit Lot 9 was part of those lands.

37. A report on title was prepared by P. Dindyal which was filed on 16th

September 1994. At

paragraph 6 of that report the attorney listed a number of lots as having been sold from the

Ramkissoon lands. It was clear to the Court hearing that application that the parcel of land

described in the judgment debtor’s deed would have been subject to the sale of several lots

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which were registered prior to the date of judgment. There is no reference at all to any

conveyance after the date of judgment.

38. Subsequently, Ms. Ramkissoon, the judgment debtor filed two summons one to set aside the

judgment which was dismissed and the second to set aside the order for sale. In the

application to set aside the order, the debtor deposed to having sold 45 lots prior to the

Registrar’s conveyance and that her presence would have been necessary to fix a proper

reserve price and to provide a more accurate report on title as the report on title missed some

parcels that were sold. That application was adjourned generally and would have stood

dismissed pursuant to Order 3 r 6 RSC (1975) as amended.

The conveyances after the order:

39. The first significant conveyance is of course the Registrar’s conveyance. The Registrar’s

conveyance describes the land sold in keeping faith with the parcel described in the summons

for sale. In the recital and habendum the deed stated:

“1. The Vendor was at the date of the Court Order hereinafter recited the owner in fee

simple of all and singular the piece or parcel of land more particularly described in

the Schedule hereto (hereinafter referred to as “the said parcel of land”).

2. By a Writ of Summons issued out of the High Court of Justice of Trinidad and

Tobago on the 25th

day of February, 1994, one Asha Sankar (hereinafter called “the

Plaintiff”) commenced High Court Action No. 675 of 1984 (hereinafter referred to as

“the said High Court Action”) with herself as Plaintiff and the Vendor as Defendant

and whereby the Plaintiff claimed against the Vendor the relief set out in the said

Writ of Summons.

3. On the 29th

day of March, 1994, the Plaintiff entered judgment against the Vendor for

the sum of $7,500.00 together with interest thereon at the rate of 6% from the 17th

day

of March, 1993, until the date of payment and costs to be taxed.

4. The Defendant having defaulted in the payment of the said Judgment Debt, on the

22nd

day of April, 1994, the Plaintiff issued a summons in the said High Court Action

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pursuant to the provisions of the Remedies of Creditors Act Chapter 8:09 for the sale

of the Beneficial Interest of the Vendor in the said parcel of land.

5. By the Order of Mr. Justice Bharath dated the 5th

day of October, 1994, (hereinafter

referred to as “the said order”) it was ordered that the said Beneficial Interest of the

Vendor in the said parcel of land be sold. A true copy of the said Order of the 5th

day

of October, 1994, is hereto annexed and marked “A”.

6. On the 12th

day of January, 1995, the Purchaser attended the Public Auction of the

said parcel of land and was the highest bidder thereat and the purchased the said

parcel of land for ten thousand dollars ($10,000.00).

7. The Registrar has joined in these presents for the purpose of transferring the

Beneficial Interest of the Vendor in the said parcel of land to the Purchaser pursuant

to the Provisions of the Remedies of Creditors Act, Chapter 8:09.

Now this deed witnesseth as follows:

That pursuant to the said Order and in consideration of the sum of $10,000.00

paid into Court by the Purchaser pursuant to the terms of sale at the said Public

Auction of the said parcel of land and pursuant to the Provisions of the Remedies

of Creditors Act Chapter 8:09, the Vendor as Beneficial Owner hereby Conveys

under the Purchaser all and singular the said parcel of land to hold the same unto

and the use of the Purchaser in fee Simple subject to all outstanding rates, taxes

and other charges that may have been due at the date of the said date.”

40. Mr. Teelucksingh had purchased as a trustee on behalf of a beneficiary, East West

Development Company Limited and his conveyance to East West Development Company

Limited was done by a deed of confirmation. The land that was described in that deed is the

same as in the court’s order save the additions of the words “save and except the several

parcels sold and conveyed therefrom”.

41. By deed dated 9th

September 2005 East West Development Company Limited sold to the

Ancillary Defendants two parcels of lands which formed part of the larger parcel.

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42. In the conveyance between East West Development Company Limited and the ancillary

Defendants is a survey plan setting out a diagram of 16 parcels of land originally owned by

Ms. Ramkissoon being the remainder after several prior transfers of other portions of land.

43. The recitals in the Torres conveyance refers to the fact that the Ancillary Defendants laid out

the pieces of land into 22 lots and one plot for multi family use as a building scheme known

as Elizabeth Park Phase 1. They constructed roads and other infrastructures. The lots are

shown in a survey plan prepared by Peter Goodridge. The third ancillary Defendant by an

agreement in writing dated 17th

December 2005 made between the landowners and vendor

agreed for Mr. Soopaya to carry out engineering works and enter into contracts and that they

will convey to him or to whomsoever he directs.

44. Lot 9 was sold by Mr. Soopaya entering into an agreement for sale with the Torres’ and the

first four ancillary Defendants as the beneficial owners of Lot 9 conveying it on the direction

of Mr. Soopaya to the Torres’.

45. The Torres’ also entered into a deed of mortgage with Trinidad and Tobago Mortgage

Finance (TTMF) to raise the finance to purchase the said property.

The main issue

46. The main issue for determination is in whom does title Lot 9 reside? Is it the Claimant or the

Defendant? In answering this question it is critical to appreciate the effect of the registration

of the judgment against the lands owned by the judgment debtor in April 1994. In

determining that matter it will determine whether Lot No. 9 was subject to the order of the

late Mr. Justice Bharath and included in the Ramkissoon lands sold by public auction. The

main issue also calls into question the meaning of the words “save and except the several

parcels sold and extracted therefrom”5 referred to in the deed of confirmation.

47. There were a number of subsidiary issues which were raised in these proceedings whether the

claim and ancillary claim discloses a reasonable ground for bring the claim, whether the

5 By whom? And when? Could only mean by the debtor and at the date of judgment.

(a) in law could only mean as at the date of judgment (b)could not vary the court order (c) the conveyance by Teelucksingh does not exclude Lot 9 no evidence that Teelucksingh sold Lot 9.

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claim is barred for laches whether the claim is commenced outside of the limitation period,

which I will deal with later in this judgment. My analysis of the main issue however

effectively disposes of both the claim and ancillary claim.

Submissions

48. The Claimant and Defendant argues forcefully that it did not have a proper title to Lot 9, that

Lot 9 was extracted from the lands that were sold in the Registrar’s conveyance. The

Defendant further contended that the Registrar’s conveyance was rectified by using the

words “save and except the lots extracted therefrom” in the deed to East West Development

Company Limited. As a result therefore Lot 9 having been sold or extracted before the order

for sale was made, East West Development Company Limited did not get title at all to Lot 9.

The third and fifth ancillary Defendants submitted that the effective date for determining

priorities is 7th

April 1994, the date of the judgment. They submitted that so long as Ms.

Ramkissoon (in her capacity as executrix), the judgment debtor was the beneficial owner of

Lot 9 as at that date, the Registrar was competent to convey it to the purchaser at the auction.

They also argued that the Claimant failed to prove and establish a good chain of title.

The law

49. A resolution of this issue lies with a proper interpretation of the legislative framework of the

ROCA for the sale of land. In the Privy Council decision of Trinidad Home Developers Ltd

v IMH Investments Ltd (No. 3) 63 of WIR 413 the Law Lords provided a brief historical

background to the ROCA with its origins in the UK 1838 Act.

“20. Their lordships will consider first the origins of ss5, 7 and 8 of ROCA. They are

derived from s 13 of the English Judgments Act 1838, and first became part of the law of

Trinidad and Tobago in 1845; see ss3 and 5 of Ordinance 19 of 1845. But there have

always been important differences between the English and Trinidad and Tobago

legislation. Section 13 of the 1838 Act made the judgment charge subject to provisos:

first, that the creditor could not take proceedings to enforce the charge until a year after

the judgment had been entered; and, secondly, that the charge was to give no preference

in bankruptcy if the debtor became bankrupt within the same period. Neither of these

provisos, which contain a code for the protection of creditors in bankruptcy, was

incorporated into the 1845 Ordinance or subsequent Trinidad and Tobago legislation...

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24. In Trinidad and Tobago, on the other hand, the judgment charge continued (subject to

the modifications already noted) as under the original English Act of 1838. No doubt the

single register kept by the Registrar of Deeds (under section 5 of the 1845 Ordinance)

and afterwards by the Registrar General under ROCA made the process of searching less

burdensome. But other relevant changes occurred. In the English legislation, no special

procedure for executing the judgment charge was provided. The judgment creditor was

simply given the ordinary remedies which the holder of an equitable charge would have

under the general law. Part II of ROCA, on the other hand, includes a detailed code of

execution. A judgment creditor can proceed to execution in two ways. He can obtain an

“order for execution” under section 18, which is enforced by the Marshal, in the first

instance against the “personal goods and chattels and effects” of the debtor: section 22. If

the Marshal’s return discloses insufficient personal goods to satisfy the judgment, the

creditor is entitled to an “order for sale” of any beneficial interest of “the execution

debtor” in any lands: section 28. Alternatively, under section 37, a judgment creditor

whose judgment has been registered may proceed directly to execution against the

debtor’s land by filing an affidavit giving particulars of land to which the debtor is

beneficially entitled.”

50. In this case the judgment creditor pursued his remedy by utilising the procedure of a

summons for sale set out in section 37 of the ROCA. The Escovalez conveyance was done

after the judgment was registered against Ms. Ramkissoon. The Torres conveyance was done

as a consequence of and following upon the order for sale and the Registrar’s conveyance. At

the date of the order for sale, Ms. Ramkissoon was still the beneficial owner of Lot 9 and the

charge on that interest crystallised and came into being upon the sale of that interest under

the summons for sale. The fact that there was no documentation of a screening and

confirmation pursuant to sections 55 and 56 of the ROCA would not have made any

difference to the legal effect of the registration of the judgment as a charge on the land. The

fact is that Ms. Ramkissoon had conveyed to Ms. Escovalez a defective title, a title

encumbered by the charge of the judgment where Lot 9 was liable to be seized and sold

under the provisions of the ROCA.

51. There are four key features of this legislation relevant to determining the main issues.

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A. The judgment as a charge on land:

52. The judgment entered against a judgment debtor operates as a charge upon all the lands to

which he is entitled, seized or possessed and against all persons claiming under him after the

judgment.6 For the judgment to operate as a charge it must be registered.

7At the time of

entering the judgment it will affect the legal estate in the judgment debtor.8 Therefore if at

that time when the judgment was registered, the legal estate was vested in a purchaser or

mortgagee it would not be liable to execution under the provisions of the ROCA. Importantly

such judgments expire after three years from the date of entry.9 The land will therefore

become free from this encumbrance upon the expiry of the three year period unless of course

it is re-registered within the three year period. In doing so the judgment “binds purchasers,

mortgagees and creditors and secures the preference”. Again section 9 of the ROCA

highlights the importance of the date of the entry of the minute of the judgment or its re-

registration.

53. The date of the judgment is therefore of particular importance indeed it is one of the

particulars which must be left with the Registrar General to enter in the minute book which is

open to inspection by “members of the public upon paying a fee”. A matter which their Law

Lords in Trinidad Home Developers Limited observed in the practical aspect of conducting

searches of title in conveyancing.

54. The effect of such a judgment registered pursuant to section 7 of the ROCA entitles the

creditor “to the same remedies in equity against the lands charged by virtue of this Act.” The

charge is not against the debtor personally, it affects and encumbers his estate in his lands

6 See section 5 of the ROCA “5. Every judgment or decree to be entered up against any person in the Court shall

operate as a charge upon all lands and rents of or to which that person shall at the time of entering up the judgment or decree, or at any time afterwards, be seized, possessed or entitled for any estate or interest whatever, whether in possession, reversion, remainder or expectancy, or over which that person shall at the time of entering up the judgment or decree, or at any time afterwards, have any disposing power which he might without the assent of any other person exercise for his own benefit, and shall be binding as against the person against whom the judgment or decree shall be entered up, and against all persons claiming under him after the judgment or decree, and shall be also binding as against his next of kin, and all other persons whom he might without the assent of any other person cut off and debar from any remainder, reversion or other interest in or out of any of the said lands and rents.” 7 See section 7 of the ROCA

8 See section 11 of the ROCA.

9 See Section 9(1).

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upon the registration of that judgment pursuant to section 710

. Section 38 underscores the

point that the Registrar is empowered to step in the shoes of the judgment debtor and effect

the conveyance of the land, regardless in whom the property is vested, if at the date of

judgment the charge was duly registered in relation to that property.

55. In examining these provisions in Tinto v Thompson CV 548 of 2005 Stollmeyer J usefully

made the following observations of the effect of registration of a judgment:

“In Trinidad and Tobago the effect of registration of a judgment is dealt with

solely by the provisions of the Remedies of Creditors Act. In summary, Section 5

creates a blanket equitable charge upon every estate or interest, legal or equitable,

in land to which the judgment debtor is beneficially entitled when judgment is

entered, and this charge is binding on him and on any person claiming under him

after that judgment is registered. By Section 7, however, that judgment does not

affect “… lands as to purchasers, mortgagees or creditors or have any preference

against heirs, executors or administrators, in the administration of their ancestors’,

testators’ or intestates’ estate …” unless and until the judgment is registered.

Section 8 gives to the judgment creditor the same remedies in equity against the

lands in question as the judgment debtor had power to charge those lands and had

done so in writing... The consequence of registration under Section 7 of the

Remedies of Creditors Ordinance is effectively to give notice to the world, since

the Register is available for public inspection, although no statute so provides. By

Section 5, however, the charge created is as against any interest or estate held by

the judgment debtor at the time of entering up the judgment, or at any time after

that, or over which he might exercise any power of disposal for his own benefit

without the agreement of any other person. The charge is binding against all

persons claiming under the judgment debtor after the judgment... It does not,

10

There can be no doubt and there is no evidence to the contrary in these proceedings that as at 27th

April 1994 the debtor, Ms. Ramkissoon was entitled to the sole immediate unconditional beneficial interest, legal and equitable of Lot 9.

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therefore, affect or bind any person who at the date of entry of the judgment had

already acquired an interest in the land, to the extent of that interest.”

56. The Claimant’s reliance on the authority of Persad v RBTT [2003] UKPC 21 is of no

assistance to her claim. It in fact confirms the view that in a sale of land under a summons for

sale the key inquiry is what was the debtor seized of at the time of the registration of the

judgment. In that case at the time of registration of the judgment the debtor did not have the

legal estate and so although the order for sale rightly referred to the beneficial interest of the

debtor, the order “had not content” as the legal and equitable estates had been already

conveyed before the judgment was entered.

B. The debtor’s title in land subject to the charge:

57. There is no evidence in this case of the contract made between the debtor and Ms. Escovalez

however the vendor in an open contract is incapable of giving good title so long as the land is

encumbered with such a charge. A registered judgment is indeed a process of execution. See

Tinto (ibid) and ACC Bank plc v Markham and Anor [2005] EWHC 437. Therefore any

purchaser of land that is subject to such a charge takes the risk of litigation and a process of

execution under the ROCA. The vendor’s obligation to show good title is an implied term

and an “immutable part of the scenery”11

in the open contract for the sale of land and the

vendor in these circumstances will be incapable of giving a title free from encumbrances. See

Timmins v Moreland Street Property Co Ltd [1958] Ch 10. Re Stirrups Contract [1961]

1 WLR 449.

C. Remedies available under the ROCA:

58. Sections 28 to 64 of the ROCA sets out the procedure for the enforcement of judgments

against lands. These sections set out different forms of execution against a debtor’s lands.

One remedy is the sale of lands after an execution on the debtor’s personal chattels is shown

to be insufficient to satisfy the order for execution. Secondly section 28 provides for a seizure

of lands by a Marshal on the request of the creditor. If the debtor is not in possession a

summons for sale can be issued. Thirdly sections 37 to 44 describe the procedure on a

11

Contract and Conveyance, Farrand pg 81

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summons for sale for the sale of the debtor’s lands which is relevant to these proceedings.

Finally section 45 sets out a procedure for a summons to be issued for the sale of a debtor’s

land in which she is in actual or constructive possession.

59. As explained earlier, critical in the enforcement of any of these remedies is the interest of the

debtor in the subject lands at the date of the registration of the judgment. This key ingredient

runs throughout these provisions providing for these modes of execution. It is only those

lands in which the debtor has a beneficial interest or is in actual or constructive possession of

which will be the subject of the process of execution and importantly as at the date of

registering the judgment.

60. This is particularly the case with the summons for sale procedure as set out in section 37 to

39 of the ROCA. These sections sets out the relevant legislative framework for the sale of

Ms. Ramkissoon’s lands as a result of the registration of the judgment and the issue of the

summons for sale in April 1994:

“37. Any order for execution by any judgment creditor whose judgment is registered and

the registration of which is in force and effective, on the filing of an affidavit showing, to

the best of the knowledge of the applicant or other deponent, the lands to which it is

alleged the debtor was beneficially entitled at the time of registration of the judgment, or

at any time after the registration and before the issue of the summons for sale, and the

nature of the beneficial interest, and referring by their registered numbers to the material

deeds and assurances affecting the lands, and giving the names and addresses of the

persons to be served with the summons.

38. If at the return of the summons for sale it is proved to the satisfaction of the Judge

that the debtor was at the time of the registration of the judgment, or at any time after the

registration and before the issue of the summons for sale, entitled to the sole immediate

unconditional beneficial interest, legal or equitable, in the lands sought to be affected, or

in any several and ascertained portion thereof, there shall be a declaration accordingly,

and the same shall be ordered to be sold on such conditions as to advertisement, date,

conditions of sale, description, reserved price, if any, and otherwise, as the Judge shall by

his order direct, and the Registrar shall, after the sale has been confirmed as hereinafter

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provided, execute and deliver to the purchaser thereof, without further order, a

conveyance thereof in fee, to be prepared by the purchaser and which shall (subject as to

land under the Real Property Act to the provisions of that Act) have the same effect as if

the execution debtor had conveyed the same to the purchaser for all his estate and interest

therein.

39. If at the hearing of the summons it appears that the debtor was at the time of the

registration of the judgment, or at any time after the registration and before the issue of

the summons for sale, entitled to any several beneficial legal or equitable estate or

interest in the lands sought to be affected, other than the sole immediate unconditional

beneficial interest, legal or equitable, or is solely entitled to any present chattel interest

therein, the Judge shall by his order declare the nature and extent of the beneficial

interest, and the declaration shall be binding on all persons duly summoned either in

person or by service thereof on some person as representing a class, and all persons

claiming under them respectively, and the same may in like manner be sold, and a

conveyance thereof given by the Registrar by the description so declared, and the effect

of the conveyance shall be the same as if the debtor had executed the same.”

61. Sections 41 to 44 of the ROCA deal with various scenarios in relation to the different nature

of the beneficial interests of the debtor. None of which is applicable in this case.

62. The procedure for the report on title is also premised on the date of registration of the

judgment. See section 47 where the Court may direct counsel to report to him as to the title

of the debtor “at the time of the registration of the judgment”.

63. If there was any doubt of the debtor’s interest then section 39 empowers the court to make a

declaration as to the nature of the debtor’s interest. A classic example of the exercise of such

powers is shown in the judgment of Narine J in the AG v Jamaat Al Muslimeen HCA 2292

of 1994. If there was any issue or dispute as at that date as to who is entitled to the ownership

of Lot 9 it would have to be decided by the judge directing an issue pursuant to section 48

ROCA. However there is no such dispute in this case and the exercise of this discretion by

the Court was not called for and unnecessary as it is accepted by the parties that Ms.

Ramkissoon was the beneficial owner of Lot 9 at the date of the registration of the judgment.

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64. Section 49 of the ROCA importantly sets out the effect of the Registrar’s conveyance on the

debtor and any purchaser claiming through him.

D. Conjoint effect of section 38 and section 63:

65. A literal reading of section 38 of the ROCA as set out above in its application to the facts of

this case would demonstrate that Ms. Escovalez simply has no title to Lot 9. Section 38

provides that if as at the return of the summons for sale (the 5th

October 1994) it is proved to

the satisfaction of the judge, (Justice Bharath), that the debtor, (Ms. Ramkissoon) was on the

date of registration of the judgment (7th

April 1994), or at any time after the registration but

before the issue for the summons for sale (21st April 1994), entitled to the sole immediate

unconditional beneficial interest legal or equitable in the lands sought to be affected (Lot 9)

the same shall be ordered to be sold and the Registrar shall execute and deliver to the

purchaser (Mr. Teelucksingh) without further order a conveyance in fee and which shall have

the same effect as if the execution debtor (Ms. Ramkissoon) has conveyed the same to the

purchaser (Mr. Teelucksingh) for all her estate and interest therein.

66. Section 63 of the ROCA sounds the death knell on any argument that Ms. Escovalez has any

title to Lot 9. It provides for the remedy of an order for possession by a purchaser under an

order for sale. The section gives that purchaser the right to issue a summons for possession

against any person wrongly retaining possession claiming to be entitled to possession by

virtue of any act executed after the registration of the judgment with the sanction that if he

refuses to deliver up possession he shall be deemed “guilty of contempt of Court, and an

order of possession may be issued directing the Marshal, with such assistance as in such writ

shall be directed, to enter upon the lands and deliver possession thereof to the purchaser, and

any person obstructing or resisting the Marshal or any assistant of the Marshal in the

execution of the order shall be guilty of contempt of Court”. 12

12

63. If any party to the summons for sale, or any one claiming through or under the party by any act or assurance happening or executed after the registration of the judgment, or, in the case of a sale ordered in an action or other proceeding under section 62, after the date of the judgment or order, retains and refuses to deliver possession of the property sold or any part thereof, the purchaser may issue a summons to the party so retaining possession to show cause why an order to deliver up possession should not be made against the party in favour of the purchaser, and the summons shall be made returnable not less than six days from the date of the issuing thereof, and on the hearing the Judge may, upon proof that the purchaser is entitled to immediate possession, order the party served

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67. The submission of the Claimant and the Defendant that the effective date to determine

whether title to Lot 9 passed under the Registrar’s conveyance is the date of the order and not

the date of registering the judgment, is with the greatest respect to Counsel unfounded in

principle and in law. The purpose of the registration of the judgment is to charge the land and

preserve it to the creditor for a process of execution. There is no doubt that the debtor can

still convey the property and the purchaser takes the risk that the land will be the subject of a

process of execution available under the ROCA. Of course the registration can lapse after

three years in which case in the absence of re-registration, the charge is extinguished. But so

long as the charge is in force, the land is liable to the process of execution no matter in whose

hands it may be vested. To give the provisions of the ROCA any other but its literal

interpretation as was sought by the Claimant and Defendant in this case, that is to say that the

debtor is free to convey before the order for sale, would make a nonsense of the provisions of

the ROCA and the protection it seeks to afford judgment creditors. Such a contention would

simply allow for a judgment debtor to dispose of all his land after being served with a

summons for sale rendering the entire process an exercise in futility.

Defect in procedure/absence of screening:

68. The only reply given to this Court by the Claimant and the Defendant in response to the

interpretation and application of section 38 of the ROCA as outlined above is that the

provisions of the ROCA was not strictly observed and that the sale by auction itself was not

properly conducted as there was no screening and confirmation pursuant to section 55 of the

ROCA.13

I have had no submission or authority on whether the absence of a screening would

with the summons to deliver up immediate possession of the lands so sold, and may make such order in respect to the costs of the summons as may be just; and any person failing to obey the order forthwith on being served with the same shall be deemed guilty of contempt of Court, and an order of possession may be issued directing the Marshal, with such assistance as in such writ shall be directed, to enter upon the lands and deliver possession thereof to the purchaser, and any person obstructing or resisting the Marshal or any assistant of the Marshal in the execution of the order shall be guilty of contempt of Court. 13

55. Forthwith after any sale, the auctioneer or other person conducting the sale shall return to the Registrar, and the Registrar shall screen and, if the Judge so directs, advertise a report of the result of the sale, stating the price obtained and the name and address of the highest bidder. And if the reserve price, if any, fixed by the Judge has been reached, the report, unless in the meantime objected to by or on behalf of any party to the summons, or by or on behalf of the purchaser or some other bidder at the sale, shall, at the expiration of ten days from the date of the same first having been screened, be deemed confirmed without any application for the purpose, and the contract of sale may at any time thereafter be enforced on the application of the party having conduct of the sale,

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nullify a Registrar’s conveyance. In any event I have no evidence that it was not done. In any

event its absence in my view would not make a difference unless there is an allegation now

being made years after the fact that the sale was not to the highest bidder or otherwise

irregular. It appears that the purpose of the process of screening is to give the purchaser the

right of enforcement of the sale within 10 days of the screening. There could be no challenge

to the fact that there was a sale.

69. It also cannot be challenged that Lot 9 was not extracted from the parcel of land at the date of

the registration of the judgment. One cannot convey an interest which she does not have. See

Colonial Homes v Kassinath Persad and ors Civ App 47 of 2007 per Mendonca JA para

33 and 34. The converse is also true. The Registrar’s conveyance at best can only convey

what was in the beneficial ownership of the debtor at the date of judgment. This was

certainly Lot 9. In my view therefore, the words “save and except the several parcels sold and

extracted therefrom” adds no value to the conveyance, as in law the lands that were sold

would be those lands subject to the charge under section 5 of the ROCA.

Subsidiary issues

70. I agree with the fifth Defendant’s submission that the contention of the Claimant and the

Defendant in effect is mounting a collateral attack to effectively set aside Bharath’s J order

and nullify the Registrar’s conveyance.

71. The Ancillary Defendants claim that there is no claim against them as they are not the

vendors nor the persons who conveyed the property to the Defendant. This submission is

made with reference to the recitals of the Torres conveyance. However those recitals made it

clear that these Ancillary Defendants were landowners in whom the beneficial ownership of

Lot 9 was vested and who had to join in the conveyance and on the direction of the third

Ancillary Defendant conveyed Lot 9 to the Defendant. They cannot therefore be struck out

on the grounds advanced by these Defendants.

72. The fifth Defendant submitted that the Claimant failed to properly plead and prove his title.

This has already been observed above as a defect in procedure and would have been fatal to

or of the highest bidder, as the case may be, by order of the Judge, either for the payment of the purchase money, or for the execution of a deed of conveyance, or for a transfer under the Real Property Act, as the case may be.

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the action especially in a claim of competing titles. However, it appears that this defect was

cured by the evidence and the submissions of the Defendant who took no issue with the

Claimants title and in fact went further to prove that the Claimant had a superior title to his

own.

73. The Limitation period does not arise for determination as the Negligence claim was

withdrawn although I had considerable doubts that this claim would have succeeded at all.

Conclusion

74. The claim will be dismissed. The Registrar’s conveyance properly conveyed Lot 9 to the

Defendants successors in title and the first four Ancillary Defendants had a good title to Lot 9

which was conveyed to Mr. Torres. It stands therefore that there will be judgment for the

third ancillary Defendant on his counter claim as follows:

“The Court declares that the deed dated the 16th

day of August, 2007 and registered as

Deed No. DE200702247953 conveying to the Ancillary Claimant/Defendant the property

and land described therein is valid and effectual in passing to the Ancillary

Claimant/Defendant the property and land described therein.

The Court declares that the deed dated the 29th


Deed No. 17690 of 1994 conveying to the Claimant herein the land described therein by

Usha Halkhoree Ramkissoon as Legal Personal Representative of Wilfred Joognoon

Ramkissoon, also called Ram Krishna Ramkissoon Halkhoree, deceased is invalid,

ineffectual, null and void, and incapable of passing to the Claimant a valid, effective, and

marketable title to the land described therein.

The Court declares that the deed dated the 29th


Deed No. 17690 of 1994 conveying to the claimant herein the land described therein is

subject to the Judgment registered on the 7th

day of April, 1994, in High Court Action

No. 675 of 1994 between Asha Sankar as Plaintiff and Usha Ramkissoon, as (the Legal

Personal Representative of Wilfred Joognoon Ramkissoon, deceased).”

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Costs on the Claim and Ancillary Claim

75. This is a troubling aspect in this case having regard to the manner in which the Defendant’s

“defence” evolved. It became apparent upon the filing of the witness statement of Mr. Torres

and upon reading his attorney’s written propositions of law and submissions that it was being

accepted that he did not have proper title to Lot 9. At one stage the Defendant overshadowed

the Claimant in making this submission. Indeed Counsel for the Claimant did not cross

examine Mr. Torres and why should he when Mr. Torres flatly acknowledged in cross

examination by the third Defendant that he does not have good title. I must take this into

account in exercising my discretion on costs both on the claim and the ancillary claim.

76. Costs are in the discretion of the Court and is to be exercised consistent with rule 66.6 CPR

and to give effect to the overriding objective. Normally the costs will follow the event where

the successful party will be entitled to his/her costs. However in this claim firstly one is in

doubt as to whether there was a successful party and secondly the successful party has no

absolute right to his costs. It is a matter of discretion. Some of the applicable principles that

will govern the exercise of this discretion are:

(a) The normal rule is that costs follow the event. The party who turns out to have

unjustifiably either brought another party before the court, or given another party

cause to have recourse to the court to obtain his rights, is required to recompense that

other party in costs; but

(b) However the first question is which party has been successful. To determine this, the

judge will have to consider the underlying realities of the litigation. Onay v Brown

[2009] EWCA Civ 775.

(c) The judge has, an unlimited discretion to make what order as to costs he considers

that the justice of the case requires.

(d) Consequently a successful party has a reasonable expectation of obtaining an order

for his costs to be paid by the opposing party, but has no right to such an order, for it

depends upon the exercise of the court’s discretion.

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(e) If there is no overall winner the Court can make an order that there be no order as to

costs. Cantor Gaming Ltd v Gameaccount Global Ltd [2007] EWHC 2381.

(f) This discretion is not one to be exercised arbitrarily; it must be exercised judicially,

that is to say, in accordance with established principles and in relation to the facts of

the case.

(g) The discretion cannot be well exercised unless there are relevant grounds for its

exercise, for its exercise without grounds cannot be a proper exercise of the judge’s

function.

(h) The grounds must be connected with the case. This may extend to any matter relating

to the litigation, but no further. In relation to an interim application, ‘the case’ is

restricted to the application, and does not extend to the whole of the proceedings (see

Hall v Rover Financial Services (GB) Ltd [2002 EWCA Civ 1514, The Times, 8

November 2002).

(i) If a party invokes the jurisdiction of the court to grant him some discretionary relief

and establishes the basic grounds therefore, but the relief sought is denied in the

exercise of discretion, as in Dutton v Spink and Beeching (Sales) Ltd [1977] 1 All

ER 287 and Ottway v Jones [1955] 1 WLR 706, the opposing party may properly be

ordered to pay his costs. But where the party who invokes the court’s jurisdiction

wholly fails to establish one or more of the ingredients necessary to entitle him to the

relief claimed, whether discretionary or not, it is difficult to envisage a ground on

which the opposing party could properly be ordered to pay his costs.

(j) The courts are likely to concentrate on whether a party was successful on an issue not

the reasonableness of raising the issue in the first place (AEI Rediffusion Music Ltd

v Phonographic Performance Ltd [1999] 1 WLR 1507; Stocznia Gdanska SA v

Lativan Shipping Co. (No.2) [1999] 3 All ER 822).

(k) A party which abandons issues, either prior to, or during, a trial, may be taken to have

lost on those issues, which may be reflected in the order as to costs (English v Emery

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Reimbold and Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409; Carver v

Hammersmith and Queen Charlotte’s Health Authority (2000) LTL 7/3/2001).

(l) There will often be an overlap in the evidence relating to issues upon which a party is

successful and those upon which it fails. This has to be taken into account. In such

circumstances it may be appropriate to award the successful party a proportion of its

costs taking into account the fact that the paying party will have to pay its lawyers for

the entire costs of the proceedings (Liverpool City Council v Rosemary Chavasse

Ltd [1999] LTL 19/8/99, in which the court discounted the successful party’s costs to

75 per cent).

(m) The award of costs to the successful party may be tempered by the manner in which it

took the points, hence late amendment may lead to the loss of some or all of the costs

up to the point of amendment and, in extreme cases, the award of the costs of the

claim up to amendment against the successful party (for example, Antonelli v Aleen

(2000) The Times, 8 December 2000).

(n) Whether the issues on which the successful party lost materially contributed to the

costs of the proceedings. If they had a negligible impact on overall costs, it may be

appropriate to award the successful party all its costs (Fleming v Chief Constable of

Sussex [2004] EWCA Civ 643, LTL 5/5/2004).

(o) Where it is clear there has been partial success, but there is inadequate material on

which to decide on an apportionment, no order as to costs may be the appropriate

order (Hackney London Borough Council v Campbell [2005] EWCA Civ 613,

LTL 28/4/2005).

See Blackstones Civil Practice 2014, Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC

965, Islam v Ali [2003] EWCA Civ 612, LE Cattan Ltd v A Michaelides & Co [1958] 2

All ER 125, Chapman v Alfred HCA No. CV2006-274 per Stollmeyer J and Caribbean

Civil Court Practice 2011 note 29.9. These really represent a general compass to guide the

Court in exercising its discretion. It is not meant to be a straight jacket and the Court will

exercise a wide degree of flexibility in ultimately giving effect to the overriding objective. As

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Lightman J observed in Bank of Credit and Commerce International SA v Ali (No.4)

[1999] 149 NLJ 1734, the Court’s task is to take an overview of the case as a whole and

reach a conclusion on two questions: who succeeded in the action and “what order for costs

justice requires”.

77. In deciding who should be liable to pay costs some of the circumstances I must have regard

to are: the conduct of the parties, whether the party has succeeded on particular issues,

whether it was reasonable to pursue an allegation or raise an issue and the manner in which a

party has pursued a particular issue. See rule 66.6 CPR. I have taken the following

circumstances into account. (a) Were it not for the late applications to strike out this claim,

which due to no fault of the fifth named Defendant its full participation came late in the

proceedings, this Court would have struck out the claim as disclosing no ground for bringing

the claim having regard to the undisputed critical facts and the effect of the provisions of the

ROCA explained above. (b) The Defendant did not seek to defend his title but embraced the

flawed logic of the Claimant and as it turned out failed in the pursuit of all its allegations on

the questionable or bad title in Lot 9. (c) With regard to the joint issues for determination

both the Claimant and the Defendant failed in pursuing those allegations. In these

circumstances, I have grave misgivings in awarding the Defendant its full or any costs. In

fairness to him however I will also take into account the late abandonment of the claim for

possession which it seems may have caused the Defendant the greatest amount of anxiety in

this litigation. In these circumstances I would award the Defendant one third of its prescribed

costs.

78. In quantifying these costs I have viewed this claim as principally a claim for damages for

trespass. The Claimant suggested, and the Defendant did not submit to the contrary, that the

stipulated value for the purpose of prescribed costs be the value of Lot 9 as determined by the

Claimant’s valuator in the sum of $600,000.00. Pursuant to CPR rule 67.5 (2) (b) (ii) this

Court stipulates the sum of $600,000.00 as the value of the claim. The prescribed costs will

be one third of $79,000.0014

which is $26,333.33.

14

Value of claim Percentage Total

$30,000.00 30% $9,000.00

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79. With regard to the Ancillary claim, Mr. Torres, the Defendant/Ancillary Claimant was the

clear loser and there is no reason nor justifiable circumstances to deprive the fifth Ancillary

Defendant of its costs. The ancillary claim was a mixed claim for damages and an

indemnification. The appropriate rule in quantifying the prescribed costs will be to stipulate a

value of the claim r 67.5 (2) (b) (ii). Essentially the ancillary claim was for a monetary sum

either to pay damages or to indemnify and pay to the Defendant what it would have to pay

the Claimant. The ancillary claim was as high as six million dollars but essentially in closing

submissions it became a claim for an indemnification to pay $600,000.00. Bearing in mind

the principle of proportionality and equality exercising my discretion the stipulated sum that

is appropriate will be $600,000.00. Therefore costs will be awarded in the sum of $79,000.00

to the fifth Ancillary Defendant.

80. With regard to the third Defendant it was successful in its defence to the claim and in the

pursuit of its counterclaim I would award him his costs of both claim and counterclaim. In

quantifying the costs however I will take into account the fact that there should be no

duplication in the award of costs for the same work. Essentially the pursuit of the

counterclaim and the defence to the ancillary claim articulated the main issue discussed

above on the title to Lot 9. There will be one set of costs. Prescribed costs is quantified in the

sum of $79,000.00.

81. The first second and fourth ancillary Defendants led no evidence and was not successful in

striking out the claim on the grounds it advanced, I would award them one third of their

prescribed costs in the sum of $26,333.33.

Vasheist Kokaram

Judge

$20,000.00 25% $5,000.00

$50,000.00 20% $10,000.00

$150,000.00 15% $22,500.00

$250,000.00 10% $25,000.00

$100,000.00 7.5% $7,500.00

$600,000.00 $79,000.00

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