THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE …webopac.ttlawcourts.org/LibraryJud/Judgments/HC/rlee/...Page 1 of 55 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE

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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV 2006-00075

BETWEEN

SONALAL RAMROOP

In his capacity as Administrator ad Litem of the estate Ramdeen Ramroop, deceased, Pursuant to

the Order of Madame Justice Rajnauth Lee dated 25th

January, 2006 in proceedings CV 2006-

00075

Claimant

AND

Seeta Ganeias (1)

Adam Ojar (2)

Narendra Ojar Maharaj (3)

George Ojar (4)

Delip Comar Ganeais (5)

Sati Ganeais (6)

Pooran Baldah (7)

Jennifer Baldah (8)

Ronald Siewlal (9)

Roland Siewlal (10)

Kaloutee Singh (11)

and Sindy Singh (12) Defendants

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Before the Honourable Madame Justice Rajnauth-Lee

Appearances

Mr. Stanley Marcus S.C. leading Mr. Anand Singh instructed by Mr. Stephen Salandy for the

Claimant.

Mr. Kelvin Ramkissoon for the First Defendant.

Mr. Haresh Ramnath for the Second and Third Defendants.

Mr. Hendrickson Seunath S.C. leading Mr. Kelvin Ramkissoon for the Fourth Defendant.

Ms. Hayma Ramdhanie-Seemungal for the Seventh and Eighth Defendants.

Ms. Reah Sookhai for the Ninth, Tenth, Eleventh and Twelfth Defendants.

DATED: the 12th

December, 2011

*********************

JUDGMENT

THE CLAIM

1. This claim was commenced by the Claimant in his capacity as Administrator ad Litem of

the estate of Ramdeen Ramroop, deceased, pursuant to the Court’s order dated the 25th

January,

2006. By his Claim Form filed on the 6th

February, 2006, the Claimant sought the following

reliefs:

(1) A declaration that the following Deeds are void and of no effect:-

-Deed of Conveyance dated the 25th

March, 2003 and registered as DE

2003 015840 53D001 (“the Deed of Conveyance”) purportedly made

between Ramdeen Ramroop, deceased, (“Ramdeen”) and the Adam Ojar,

the Second Defendant (“Adam Ojar”).

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-Power of Attorney dated the 19th

March 2003 and registered as DE

200301436685D001 (“the Power of Attorney”) purportedly made by

Ramdeen in favour of the Seeta Ganeais, the First Defendant (“Seeta”).

-Deed of Gift dated the 3rd

April, 2003 and registered as DE 2003 020191

58D001 (“the Deed of Gift”) purportedly made by Ramdeen in favour of

Seeta.

-Deed of Conveyance dated the 10th

May, 2005 made between Adam Ojar

of the one part and Narendra Ojar Maharaj, the Third Defendant

(“Narendra Ojar Maharaj”) of the other part and registered on the 13th

June, 2005 as DE 2005 014552 74D001.

-Deed of Conveyance dated the 6th

June, 2005 made between Adam Ojar

of the one part and George Ojar, the 4th

Fourth Defendant (“Mr. Ojar”) of

the other part and registered on the 13th

July, 2005 as DE 2005 017375

40D001.

-Deed of Gift dated the 27th

June, 2005 made between Adam Ojar of the

one part and Delip Comar Ganeais and Sati Ganeais, the Fifth and Sixth

Defendants of the other part and registered on the 5th

July, 2005 as DE

2005 016595 93D001.

-Deed of Conveyance dated the 12th

July, 2005 made between Adam Ojar

of the one part and Pooran Baldah and Jennifer Baldah, the Seventh and

Eighth Defendants of the other part and registered on the 19th

July, 2005

as DE 2005 017839 85D001.

-Deed of Conveyance dated the 19th

July, 2005 made between Adam Ojar

of the one part and Ronald Siewlal and Roland Siewlal, the Ninth and

Tenth Defendants of the other part and registered on the 26th

July, 2005 as

DE2005 018606 68D001.

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-Deed of Conveyance dated the 19th

July, 2005 made between Adam Ojar

of the one part and Kaloutee Singh and Sindy Singh, the Eleventh and

Twelfth Defendants of the other part and registered on the 26th

July, 2005

as DE2005 018608 D001.

on the basis of fraud (all the deeds are collectively referred to as “the said Deeds”).

(2) An order setting aside the said Deeds.

(3) Alternatively an order that the Defendants do reconvey the

respective portions of lands conveyed to them by the said Deeds to

the estate of Ramdeen.

(4) Damages for fraud.

(5) Damages for unjust enrichment.

(6) Costs.

(7) All further accounts directions and inquiries as may be necessary.

(8) Any further or other relief.

2. The Claimant is the brother of Ramdeen who died on the 19th

May, 2003. Ramdeen was

69 years of age at the date of his death. The death certificate of Ramdeen disclosed that the

cause of death was acute renal failure, diabetes and hypertension. Ramdeen died at his home at

No. 80 Mausica Road, D’Abadie. It is undisputed that Ramdeen never married and never had

children. Ramdeen was a pensioner for fourteen (14) years prior to his demise, having retired at

the age of fifty-four in 1989 as a male nurse attached to the St Ann’s Mental Hospital.

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THE STATEMENT OF CASE

3. By his Statement of Case also filed on the 6th

February, 2006, the Claimant alleged at

paragraph 6 that at all natural times Ramdeen was entitled to and possessed of three parcels of

land in Mausica:

a. All and Singular that certain piece or parcel of land situate at Mausica Road,

D’Abadie, in the ward of Tacarigua, in the Island of Trinidad, comprising 0.5438

hectares more or less which said piece or parcel of land is delineated and shown

coloured pink as plot “B” on the survey plan marked “X” annexed to Deed No.

12993 of 1988 [“Mausica Parcel No. 1”]. The following particulars of title for the

Mausica Parcel No. 1 were set out.

Particulars of Title

i. Deed of Conveyance dated the 11th

June, 1988 made between Ramroop

(Ramdeen’s father) of the one part and Ramdeen of the other part and

registered as 12993 of 1988.

ii. Deed of Conveyance dated the 21st

June, 1966 made between Rampersad

of the one part and Rampersad, Ramroop and Sankal Ramroop of the other

part and registered as 6512 of 1966.

iii. The aforesaid Rampersad was Ramdeen’s uncle and the aforesaid Sankal

Ramroop was the Ramdeen’s mother. Rampersad died on the 1st July,

1981 and Sankal Ramroop died on the 18th

February, 1972 without

severing the joint tenancy created by the Deed of Conveyance registered

as 6512 of 1966.

b. All and Singular that certain piece or parcel of land situate at Mausica Road,

D’Abadie, in the Ward of Tacarigua, in the Island of Trinidad, comprising 2.4084

hectares which said piece or parcel of land is delineated and shown coloured pink

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as plot “A” on the survey plan marked “X” annexed to Deed No. 12993 of 1998

[“Mausica Parcel No. 2”]. The above particulars of title are relied on.

c. All and Singular that certain piece or parcel of land together with the buildings

thereon and the appurtenances thereto belonging situate at Mausica Road,

D’Abadie, in the Ward of Tacarigua, in the Island of Trinidad, comprising one

quarry more or less (more particularly described in the schedule to deed registered

as No. 1825 of 1990 [“Mausica Parcel No. 3”]. The following particulars of title

were relied on.

Particulars of Title

i. Deed of Conveyance dated the 24th

January, 1990 made between Ramdeen

of the one part and Ramdeen and Vera Ramroop (Ramdeen’s sister) of the

other part and registered as 1825 of 1990.

ii. Further particulars of title are unavailable at this date.

[In the Statement of Case, Mausica Parcel No. 1, Mausica Parcel No. 2 and Mausica

Parcel No. 3 were collectively referred to as “the said parcels of lands”].

4. At paragraph 7 of the Statement of Case, the Claimant alleged that Mausica Parcel No. 1

and Mausica Parcel No. 2 were purportedly conveyed firstly to Adam Ojar and Mausica Parcel

No. 3 was purportedly conveyed to Seeta.

5. The following Particulars of Conveyance were set out at paragraph 7 of the Statement of

Case:

Particulars of Conveyance

Mausica Parcels Nos. 1 and 2 were purportedly conveyed by Ramdeen to Adam Ojar by

the Deed of Conveyance. The Deed of Conveyance was purportedly executed by

Ramdeen through Seeta, by virtue of the Power of Attorney. Mausica Parcel No. 3 was

purportedly conveyed by Ramdeen to Seeta by the Deed of Gift.

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6. At paragraph 8 of the Statement of Case, the Claimant alleged that the Deed of

Conveyance and the Deed of Gift were procured by the fraud of Seeta, Adam Ojar and Mr. Ojar.

Mr. Ojar is an Attorney-at-Law practising in Trinidad and Tobago. The following particulars of

fraud are set out at paragraph 8:

Particulars of Fraud

In relation to the Deed of Conveyance

a. The Deed of Conveyance was executed by and pursuant to a fraudulent Power of

Attorney.

b. The purported thumbprint on the Power of Attorney is not a voluntary thumbprint

of Ramdeen whilst he was alive or otherwise or a thumbprint of Ramdeen at all.

c. The purported thumbprint on the Power of Attorney is a forgery.

d. The thumbprint on the Power of Attorney was affixed deliberately to prevent

proper identification.

e. Ramdeen did not by his own volition or at all execute the Power of Attorney.

f. There is no evidence from the Attorney who prepared the Power of Attorney (Mr.

Ojar) that he had any or any written instructions at all from Ramdeen to prepare

the Power of Attorney. Annexed to the Statement of Case as “S.R. “7” was a

copy of a letter dated the 18th

October, 2005 from the Claimant’s Attorney to Mr.

Ojar requesting instructions for the same and to which no response was ever

received.

g. There is neither evidence that the Power of Attorney was brought to the attention

of Ramdeen nor that the same was acquiesced or ratified by him.

h. Further and/or in the alternative, the Claimant will aver that Adam Ojar to whom

the Deed of Conveyance was in favour, had knowledge of the fraud. The

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knowledge of the aforesaid fraud is imputed and to be inferred by virtue from the

following:-

(i) Mr. Ojar and Adam Ojar are father and son respectively;

(ii) Adam Ojar had at all material times close relations to Mr. Ojar and his

offices; Adam Ojar, as will be shown below, appointed Mr. Ojar’s

employee as his attorney by virtue of a Power of Attorney dated 16th

August, 2004 and registered as DE 200402511388 which was used to deal

with lands forming part of Mausica Parcels Nos. 1 and 2;

(iii) All of the aforesaid transactions in (ii) above were dealt with by Mr. Ojar

and his offices;

(iv) Mr. Ojar and his offices acted at all material times as the agent of Adam

Ojar;

(v) The Claimant will also rely on inferences to be drawn from the aforesaid

subsequent conveyances of lands forming part of Mausica Parcels Nos. 1

and 2 to his brother, father and a Deed of Gift dated the 27th

June, 2005

and registered as DE 2005016595 93 D001 to the relations of Seeta as

evidence of collusion and the knowledge of the fraud to be inferred

therefrom.

i. There is no evidence of any consideration being received by Ramdeen or in fact

paid and that has been inferred from a request made to Adam Ojar’s Attorney to

provide the same in the letter annexed to the Statement of Case as “S.R. 7” and to

which no response has been given.

j. The Claimant will also rely on the particulars given below under the heading “The

Claimant will rely on the following facts as inferences of the allegation of fraud”

below as further particulars of fraud hereunder.

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In relation to the Deed of Gift

k. The thumbprint in relation to the Deed of Gift is not a voluntary thumbprint of

Ramdeen whilst he was alive or otherwise and/or thumbprint of Ramdeen at all;

the aforesaid thumbprint was made by a cadaver.

l. There is no evidence from the Attorney who prepared the Deed of Gift that he had

any or any written instructions at all from Ramdeen to prepare the Deed of Gift as

requested in the letter annexed at “S.R. “7” and to which no response has been

received.

m. The Claimant on the morning of Ramdeen’s death and following Ramdeen’s

death saw the attorney, Mr. Ojar, who prepared and witnessed the Deed of Gift

leaving Ramdeen’s premises with a large brown envelope with white pages

protruding from the same in the hands of Mr. Ojar.

n. The registration of the Deed of Gift being that of the 19th

May, 2003 and the date

of Ramdeen’s death suspiciously coincides.

o. The Claimant will also rely on the particulars given below under the heading “The

Claimant will rely on the following facts as inferences of the allegation of fraud”

below as further particulars of fraud hereunder.

The Claimant will rely on the following facts as inferences of the allegation of fraud

p. The purported thumbprint on the said Will is not the voluntary thumbprint of

Ramdeen whilst he was alive or otherwise or Ramdeen’s thumbprint at all.

q. The attorney who prepared the said Will, the Power of Attorney, the Deed of

Conveyance and the Deed of Gift is the same and is the attorney of Seeta and

Adam Ojar.

r. The quality of the thumbprints on all the documents compared with that on the

application for the firearm licence is vastly different.

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s. The manner of the affixation of the thumbprints rendered the same difficult for

proper identification.

t. Ramdeen was at all material times literate and used and was capable of using his

handwritten signature to execute and issue documents. Annexed to the Statement

of Case as “S.R. 6” were copies of an application for a firearm licence dated the

20th

May, 1997, a letter dated the 21st October, 1997, receipts for rent dated the 1

st

May 2000, the 1st February, 2001 and 2

nd January, 2002 and a life certificate dated

the 6th

October, 2002 for pensioners all signed by Ramdeen.

u. That Ramdeen during the period of the purported execution of the Power of

Attorney, Deed of Conveyance and Deed of Gift executed and issued receipts for

rent dated the 2nd

January, 2003 and the 29th

January, 2003 and signed his life

certificate dated the 3rd

April, 2003 for pensioners using his handwritten

signature.

v. The affidavits of due execution of the Power of Attorney and the Deed of Gift are

shams and were done to further the fraud.

w. Seeta’s Attorney is Mr. Ojar and all the documents were prepared by him and

were in favour of Seeta and Adam Ojar, the son of Mr. Ojar.

x. All the questioned documents form part of a series of close transactions all in

favour of Seeta and Adam Ojar and which are inconsistent with other transactions

of Ramdeen.

y. All the documents are in favour of Seeta and Adam Ojar.

z. That Seeta purported to claim fraudulently from a former employer Jai

Ramkisoon severance pay for the sum of $30,000. for ten (10) years’ service

when she only worked for two (2) years shows a propensity for fraud to achieve

her ends.

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7. At paragraph 9 of the Statement of Case, the Claimant alleged that subsequent to the

Deed of Conveyance, Adam Ojar purported to convey several portions of the Mausica Parcels

Nos. 1 and 2 to the Third to Twelfth Defendant amongst other persons.

8. At paragraphs 10, 11, 12, and 13, the Claimant alleged as follows:

10. All these conveyances were executed by Adam Ojar pursuant to a Power of

Attorney dated the 16th

August, 2004 and registered as DE 200402511388 in favour of

Davi Kissoon, who is an employee of Mr. Ojar.

11. The Deeds of Conveyance and Deed of Gift averred to in paragraph 9 above

followed an unbroken chain of fraud and the titles from the same were derived from a

vendor whose title was neither that of a bona fide purchaser for value without notice of a

fraud nor free from taint of fraud and/or was derived from a forged instrument.

12. Further or in the alternative the Claimant will aver that Narendra Ojar Maharaj

is imputed with notice of the fraud by reason of the fact that the attorney-at-law acting

for him, being his agent in his conveyancing transaction, had full knowledge of the fraud.

13. Further or in the alternative the Claimant will aver that Mr. Ojar, by reason of

the matters above, had actual knowledge of the fraud.

9. In addition, as to Fifth to Twelfth Defendants, the Claimant alleged that they would have

had notice of the claims of the estate of Ramdeen by virtue of lis pendens which had been filed

by the Claimant.

DEFENCES

10. A Defence and Counterclaim was filed on behalf of Seeta on the 10th

October, 2006.

She described herself as the common law wife of Ramdeen and alleged that in or around 1986

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she and Ramdeen commenced a meaningful bona fide sharing relationship with genuine love

between them both as man and wife and since then to the date of his death, they exercised

conjugal rights with each other. It was further contended that at all material times Ramdeen held

himself out to be Seeta’s husband and Seeta held herself out to be Ramdeen’s wife [paragraph 3].

11. It was further alleged that Ramdeen and the Claimant throughout the course of their adult

life had a strained and acrimonious relationship stemming primarily, and inter alia, from issues

over the distribution of the estate of their late father, Ramroop (“Ramroop”) [paragraph 5].

12. At paragraph 12 of Seeta’s Defence and Counterclaim, it was contended that the

conveyances and transactions averred to in paragraph 7 of the Statement of Case were arm’s

length transactions for valuable consideration with terms and conditions of contract that were

within the parameters of law.

13, In essence, Seeta denied all particulars of fraud. As to the allegations of fraud in relation

to the Deed of Conveyance, it was contended on behalf of Seeta [paragraph 13 particulars a – l]:

a. The Power of Attorney was at all material times validly executed by Ramdeen at a

time when he was corpus mentis and had full control of all mental faculties. It

was prepared by his Attorney, Mr. Ojar, on the express instructions of Ramdeen

in Seeta’s presence.

b. The thumbprint affixed on the Power of Attorney was voluntarily and

conscientiously affixed by Ramdeen as and for his act and deed in the presence of

Davi Kissoon, Mr. Ojar and Ramdeen’s common law wife, Seeta. The document

represented the product of the expressed instructions by the maker thereof to

prepare such documents.

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c. The Claimant was put to strict proof as to the matters deposed to in sub-

paragraphs a, b, c, d, and e of paragraph 8. It was denied that the thumbprint on

the Power of Attorney was not Ramdeen’s thumbprint or that the same was a

forgery or was affixed deliberately to prevent proper identification or that

Ramdeen did not by his own volition execute the Power of Attorney.

d. In specific answer to paragraph 8 sub-paragraph f of the Statement of Case, it was

averred on behalf of Seeta that the Attorney who prepared the Power of Attorney

took instructions from Ramdeen for the preparation of the Power of Attorney,

which said instructions were reduced into writing by the Attorney. In further

response, it was alleged that at all material times correspondence and instructions

passing between Attorney-at-Law and client remain privileged and such attorney

could not receive instructions from a deceased client to waive such privilege.

e. In answer to paragraph 8, sub-paragraph g, it was alleged that Ramdeen agreed to

ratify and did ratify the contents as contained in the Power of Attorney as

evidenced by the following:-

“I George Ojar, Attorney at Law, having first audibly and

distinctly read over and explained the contents of the within document to

the Within Named RAMDEEN RAMROOP and he appeared to fully

understand and approved of same before affixing his right Thumb Print on

the within document”.

f. Paragraph 8, sub-paragraphs h, (i) to (v), were denied. Seeta denied the

imputation of fraud and knowledge to Adam Ojar, but it was admitted that Adam

Ojar and Mr. Ojar were son and father respectively.

g. In so far as it was stated that Adam Ojar had a close relation with Mr. Ojar and his

offices, it was contended that Adam Ojar had no close relation with Mr. Ojar’s

offices and that Adam Ojar at all materials times was domiciled out of the

jurisdiction in the United States of America. Seeta gave notice of her intention to

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rely upon extracts from Adam Ojar’s passport to attest to his domicility out of the

jurisdiction.

h. In further answer to sub-paragraphs (i) and (ii) of sub-paragraph h of paragraph 8,

it was alleged that Mr. Ojar’s employee held power of attorney over and in

respect of all lands and hereditaments vested in Adam Ojar’s name under and by

virtue of Powers of Attorney for more than fifteen (15) years with the power, inter

alia, to sign, execute, deliver and perfect all such acts, deeds, conveyances,

mortgages and assurances as may be deemed necessary or expedient for the

disposition or alienation of lands belonging to Adam Ojar.

i. In specific answer to sub-paragraphs (iii) and (iv) of sub-paragraph h of paragraph

8, it was averred that Mr. Ojar acted in his professional capacity and that all

transactions in relation thereto were done with full knowledge of Adam Ojar.

j. Paragraph (iv) of sub-paragraph h of paragraph 8 was denied. It was alleged that

Mr. Ojar acted for Adam Ojar on instructions in his professional capacity.

k. The Claimant was put to strict proof to the matters alleged in sub-paragraph (v) to

sub-paragraph h of paragraph 8 and it was contended that the inferences of

collusion and fraud were untenable.

l. In relation to sub-paragraph i of paragraph 8, Seeta denied that there was no

evidence of consideration received by the deceased and averred that payments by

cash and cheque in the amount of $120,000.00 constituted evidence of payments.

14. As to the allegations of fraud alleged by the Claimant in relation to the Deed of Gift, it

was contended on behalf of Seeta as follows:

m. In answer to sub-paragraphs k and l of paragraph 8, paragraph c above repeated.

n. It was contended that Seeta was a stranger to the averments in sub-paragraph m of

paragraph 8 of the Statement of Case and that on the date of Ramdeen’s death,

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Mr. Ojar was not present at the place or time of the death. It was further alleged

that Seeta was present at the house where Ramdeen died for the entirety of the

duration of the mourning period, including the cremation, since Hindu wives were

forbidden from attending the cremation of their husbands in local culture.

o. (i) In response to sub-paragraph n of paragraph 8, it was averred that the

Deed of Gift was prepared and executed on the 3rd

day April, 2003, one

month and two weeks prior to Ramdeen’s death and in so far as

the Deed of Gift was registered on the 19th

day of May, 2003, which was

the date of Ramdeen’s death, the same was purely coincidental and in

any event did not legally invalidate the efficacy of the Deed of Gift

which was executed prior to Ramdeen’s death.

(ii) In further answer to sub-paragraph n of paragraph 8, it was alleged that

fees and disbursements including stamp duty due and owing to Mr. Ojar

for legal services rendered in the preparation of the Deed of Gift were paid

two (2) days before Ramdeen’s death, that is on Saturday the 17th

May,

2003. The original receipt would be produced at the trial.

p. In response to sub-paragraph p of paragraph 8, it was contended that the thumbprint

on the said Will of Ramdeen was voluntarily affixed while he was alive and he had

the animus testandi and was in full control of all mental faculties at the time of

affixing his thumbprint. Further, Seeta gave notice of her intention to adduce into

evidence expert evidence.

q. Sub-paragraph q of paragraph 8 was admitted but it was alleged that the Attorney

who prepared the said Will and Power of Attorney had been the long-standing

family Attorney for Ramdeen and Seeta, that the Attorney at all material times

acted with due professional conduct, and that there was no conflict of interest or

other prohibition which militated against his capacity to act and to provide

professional service for any of the Defendants. Further, evidence was to be

adduced at the trial of this action to show that Mr. Ojar provided legal services to

Ramdeen since in or around 1996.

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r. No admission was made with respect to sub-paragraph r of paragraph 8 and Seeta

gave notice of her intention to rely on forensic evidence at the trial of this action to

prove that the thumbprints affixed on the relevant documents were indeed that of

Ramdeen.

s. The averments contained in sub-paragraph r of paragraph 8 were repeated.

t. It was admitted that Ramdeen was literate but it was contended that his continuing

deteriorating health from January, 2003 prevented him from writing.

PARTICULARS OF HEALTH CONDITION

(i) End Stage Renal disease secondary to Diabetes Nephropathy.

(ii) Diabetes Mellitus.

(iii) Swelling of both feet associated with pain, extreme weakness and

shortness of breath.

(iv) Diabetic foot ulcer.

(v) Leg ulcer and foot callus.

(vi) Cardiomegaly and bluntness of the right costovertebral angle with peri

hilar haziness.

(vii) Anemia secondary to Chronic Renal failure and Congestive cardiac failure

and Uraenic Encephoalapathy.

(viii) Joint space narrowing of bilateral hips with mild scoliosis.

[Seeta gave notice of her intention to produce all original medical

certificates at the trial of the action.]

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u. In response to sub-paragraph u of paragraph 8, it was averred that even before the

period of the execution of the Will, Power of Attorney and Deed of Gift, that is to

say, between the 1st January, 2003 and the 3

rd April, 2003, Ramdeen was unable

to write due to medical complications. It was alleged that the purported Life

Certificate exhibited as “S.R. 7” to the Statement of Case was not a genuine

document and that the same was false and fraudulent in every material respects.

Several particulars of fraud were alleged and these will be dealt with in detail

during the Court’s consideration of the evidence.

v. Seeta gave notice of her intention to adduce expert evidence at the trial of this

action to show that the signature on the rent receipt dated the 29th

January, 2003

exhibited as “S.R.7” to the Statement of Case was not Ramdeen’s signature.

w. Seeta denied that the affidavits of due execution of the Power of Attorney and

Deed of Gift were shams and/or that they were done in furtherance of any fraud.

y. Seeta also denied and contended that she was a stranger to the averments made in

sub-paragraphs x and y of paragraph 8 of the Statement of Case.

z. In response to sub-paragraph z of paragraph 8, Seeta denied the allegation stated

therein and averred that the said matters were scandalous and irrelevant and ought

to be struck out.

15. Seeta counterclaimed inter alia that she was the surviving cohabitant of Ramdeen and

was lawfully entitled to the benefit of his estate.

16. A Defence was filed on behalf of Adam Ojar on the 10th

October, 2006. In essence,

Adam Ojar denied the allegations of fraud made against him. Adam Ojar admitted that he was

the son of Mr. Ojar and the brother of Narendra Ojar Maharaj. He alleged that he was resident

and a citizen of the United States of America for the past twenty-four (24) years. He alleged that

he visited Trinidad and Tobago periodically.

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17. In addition, at paragraph 2 of his Defence, Adam Ojar contended that he was the Donor

of a Power of Attorney dated the 16th

August, 2004 in favour of Davi Kissoon.

18. Despite the Defence, Adam Ojar did not file any witness statements and played no further

part in the trial. Indeed, no evidence was advanced on his behalf at the trial.

19. A Defence was also filed on behalf of Narendra Ojar Maharaj on the 28th

July, 2006. He

denied any allegation of fraud made against him and contended that he lived in the United States

of America for almost twenty (20) years [paragraph 6] and that by virtue of his domicility out of

the jurisdiction, he could not reasonably be expected to have had any knowledge of any

impropriety or purported impropriety in the conduct of any transaction or transactions pertaining

to the lands in dispute [paragraph 7].

20. In addition, Narendra Ojar Maharaj alleged that he conducted the transaction of the

purchase of the parcel of land at arm’s length and had no knowledge of the existence of any

encumbrances which could have prevented such sale or affected the validity of title thereof

[paragraph 8].

21. The witness statement of Narendra Ojar Maharaj was filed on the 1st April, 2010, but he

was never presented as a witness at the trial and no evidence was advanced on his behalf.

22. A Defence and Counterclaim was filed on the 27th

July, 2006 on behalf of Mr. Ojar.

With respect to the allegations of fraud made against him, the Defence was basically in the same

terms as the Defence of Seeta referred to earlier in this judgment.

Page 19 of 55

23. A Defence was also filed on behalf of the Seventh and Eighth Defendants, Pooran Baldah

and Jennifer Baldah. According to the Defence, these Defendants alleged that they relied on the

professional advice of Mr. Ojar and were at no times advised of the lis pendens. In addition,

these Defendants alleged that they had been in continuous and undisputed occupation and

possession of the subject parcel of land for more than sixteen (16) years since on or about 1981,

both lot 51 and the subject parcel of land being treated and used as a single unit over the years.

A joint witness statement was filed on behalf of these Defendants, but they were not presented as

witnesses at the trial and no evidence was tendered on their behalf at the trial.

24. By their Defence filed on the 31st October, 2006, the Ninth, Tenth, Eleventh and Twelfth

Defendants namely, Ronald Siewlal, Roland Siewlal, Kaloutee Singh and Sindy Singh, these

Defendants alleged that they have been living at No. 51 Calis Trace, Mausica Road, D’Abadie

for over thirty (38) years. Mr. Samaroo Siewlal, father of the Ninth and Tenth Defendants, was

on the 21st October, 1997 given written permission to cultivate a parcel of land known as Lot No.

7A Calis Trace, Mausica Road, D’Abadie by Ramdeen [paragraph 4].

25. In or around August 2005, Mr. Ojar approached them and informed them that he had

acquired Lot. No. 7A and was giving them first preference to purchase. On the 22nd

July, 2005,

these Defendants entered into an agreement to purchase a portion of Lot 7A from Mr. Ojar

[paragraph 5].

26. At paragraph 6 of the Defence, these Defendants contended that they had no notice of the

lis pendens, that they relied on the professional advice of Mr. Ojar and that they were never

advised about their option to seek independent legal advice.

Page 20 of 55

27. The Claimant filed no Reply to these Defences.

THE ISSUES

28. Although there are many issues of law and fact in dispute in this claim, there is one

central issue which falls to be determined by the Court:

Whether in all the circumstances of the case and having regard to the evidence and the

law, the said Deeds ought to be set aside on the ground that they were procured by the

fraud of Seeta and/or Adam Ojar and/or Mr. Ojar.

29. I propose to determine this issue in the light of certain other issues which have been

raised by the parties:

(i) Whether the Claimant has made out a prime facie case of fraud against Seeta,

Adam Ojar and Mr. Ojar.

(ii) The effect, if any, on the failure of Mr. Ojar and of Adam Ojar to give evidence at

the trial.

PRIMA FACIE CASE OF FRAUD [Where material witnesses are not called]

30. On the last day of the trial while evidence was being led, Mr. Seunath S.C. acting for Mr.

Ojar, announced to the Court that he was not calling any further evidence. Mr. Seunath

submitted that serious allegations had been made against his client and as Counsel he considered

it his duty to act in Mr. Ojar’s interest. In the written submissions filed on behalf of Mr. Ojar on

the 17th

September, 2010, Mr. Seunath contended that there was nothing for Mr. Ojar to answer

Page 21 of 55

and to prove and it was not open to the Court where nothing has been proved which was inimical

to Mr. Ojar’s conduct to conclude any impropriety on his part by his failure to give evidence. He

further submitted that Mr. Ojar’s choice not to give evidence at the trial should not be held

against him in the peculiar circumstances of this case where there was no evidence against him to

prove that he had perpetrated a fraud and the highest evidence against him was that he was with a

brown envelope on the morning of Ramdeen’s death. In the circumstances, therefore, although

Mr. Ojar had signed a witness statement and his case was also supported by the witness

statement of Ms. Davi Kissoon, neither of them was called as witnesses. Accordingly, their

witness statements cannot be relied on.

31. Having regard to this turn of events, Mr. Marcus S.C. acting for the Claimant, has

submitted that subject to a prime facie case being established by the Claimant, there arises the

necessity to displace that prima facie case by Adam Ojar and Mr. Ojar. In the event that these

Defendants or other persons with the knowledge to provide the material evidence are not called

as witnesses, and no acceptable explanation is given for their absence from the witness box, the

Court may draw the inference that the material evidence is being suppressed for fear that the

withheld evidence may prove helpful to their opponent’s case [page 4 paragraph 3(a) of the

Claimant’s written submissions filed on the 1st October, 2010].

32. The Claimant placed reliance on the case of Donovan Crawford and Others v

Financial Institutions Services Limited [Privy Council Appeal No. 34 of 2004]. In paragraph

7 of the reasons delivered by their Lordships, the Board in considering two points in regard to the

proceedings as a whole, stated as follows:

The first relates to the oral evidence, or rather the lack of oral evidence, at trial.

Despite the variety of serious allegations made in the pleadings against Mr.

Crawford, and the matters deposed to by the investigating accountants as calling

for explanation, neither Mr. Crawford nor any member of his family gave

evidence before the Chief Justice. It is well settled that in civil proceedings the

Page 22 of 55

court may draw adverse inferences from a defendant’s decision not to give or call

evidence as to matters within the knowledge of himself or his employees. In

Herrington v British Railways Board [1972] AC 877, 930, Lord Diplock said of

such a decision,

“This is a legitimate tactical move under our adversarial system of

litigation. But a defendant who adopts it cannot complain if the court

draws from the facts which have been disclosed all reasonable inferences

as to what are the facts which the defendant has chosen to withhold.”

And at paragraph 12, it is said:

The weight to be attached to a defendant’s failure to testify varies with the

circumstances of the case. It is plain that in this case the Chief Justice and the

Court of Appeal attached a good deal of weight to Mr. Crawford’s silence, and

their Lordships are satisfied that they were right to do so. Mr. Crawford was the

chairman and chief executive of the Bank, the Building Society and the Merchant

Bank. It is an irresistible inference that he was the directing mind behind

Regardless, Holdings and the rest of the group. The consolidated proceedings

raised many grave issues as to his stewardship of the whole group of companies.

His failure to testify was a strong indication that he had no satisfactory answer to

what was alleged against him.

33. The case of Wisniewski v Central Manchester Health Authority [1998] P.l.Q.R.

Volume 7 p. 324 was considered by this Court in the unreported case of Ian Sieunarine v Doc’s

Engineering Works (1992) Limited H.C.A. No. 2387 of 2000. In Wisniewski, the plaintiff

who was born at St. Mary’s Hospital, Manchester on the 15th

January 1988 suffered from

athetoid cerebral palsy from birth. It was contended inter alia on behalf of the plaintiff that the

defendant’s breach of duty was the effective cause of the irreversible brain damage suffered by

the plaintiff in the minutes immediately prior to his birth. At the time of the plaintiff’s birth, the

only medical staff involved in the care of the plaintiff’s mother was a midwife sister and the

Page 23 of 55

resident senior House Officer. The senior House Officer declined to return from Australia,

where he was training as a specialist, to give evidence at the trial. A short written statement in

which he stated that he had no independent recollection of his involvement in the case was

tendered and admitted into evidence under the Civil Evidence Act 1968. The statement made no

reference as to what he might have done if summoned by the midwife. The trial judge placed

considerable weight on the House Officer’s non-attendance, the absence of justifiable reason for

non-attendance and the failure to make any other arrangement to allow for his cross-examination

and inferred that the House Officer, if he had been summoned by the midwife, would have

proceeded to rupture the membrane and then to do a caesarean, thus preventing the catastrophe

which befell the plaintiff.

34. The Court of Appeal in Wisniewski examined the line of authorities which showed that if

a party does not call a witness who is not known to be unavailable and/or who has no good

reason for not attending, and if the other side has adduced some evidence on a relevant matter,

then in the absence of that witness, the trial judge is entitled to draw an inference adverse to that

party and to find that matter proved. The party seeking to rely on such an inference must

however establish a prima facie case on the matter in question. One of the cases considered was

Mc Queen v. Great Western Railway Company (1875) L. R. 10 Q. B. 569, where Cockburn C.J.

made the point [at page 574] that if a prima facie case is made out, capable of being displaced,

and if the party against whom it is established might by calling particular witnesses and

producing particular evidence displace that prima facie case, and he omits to adduce that

evidence, then the inference fairly arises, as a matter of inference for the jury and not a matter of

legal presumption, that the absence of that evidence is to be accounted for by the fact that even if

it were adduced, it would not displace the prima facie case. According to the Chief Justice, that

always presupposes that a prima facie case has been established; and unless we can see our way

clearly to the conclusion that a prima facie case has been established, the omission to call

witnesses who might have been called on the part of the defendant amounts to nothing.

Page 24 of 55

35. The Court of Appeal also cited the Australian case of O’Donnell v. Reichard (1975] V.

R. 916. In that case Gillard J. had conducted a review of earlier English and Australian cases

and concluded at page 920 that there must be some limitation imposed upon the application of

the rule. For example, any party upon whom the burden of proof on any issue is imposed must

always adduce a prima facie case on such issue to go to the jury, and the failure of the other

party to the litigation to call witnesses who may be expected to elucidate the matter cannot fill in

any gaps in the proof required.

36. Having examined several authorities, Brooke L. J. in delivering the judgment of the Court

of Appeal, set out the following principles in the context of the facts in Wisniewski:

(1) In certain circumstances a court may be entitled to draw adverse

inferences from the absence of silence of a witness who might be expected

to have material evidence to give on an issue in an action.

(2) If a court is willing to draw such inferences, they may go to strengthen the

evidence adduced on that issue by the other party or to weaken the

evidence, if any adduced by the party who might reasonably have been

expected at call the witness.

(3) There must, however, have been some evidence, however weak, adduced

by the former on the matter in question before the court if entitled to draw

the desired inference; in other words, there must be a case to answer on

that issue. [emphasis mine]

(4) If the reason for the witnesses’ absence or silence satisfies the court, then

no such adverse inference may be drawn. If, on the other hand, there is

such credible explanation given, even if it is not wholly satisfactory, the

potentially detrimental effect of his/her absence or silence may be reduced

or nullified.

Page 25 of 55

37. Both parties cited the case of Jones v Dunkel (1959) 101 CLR 298 - a decision of the

High Court of Australia. In that case, the cause of action was negligence causing the death of the

plaintiff’s husband, a truck driver. The defendants’ counsel at the conclusion of the plaintiff’s

case announced that he would not call evidence. Dixon C.J. said that he could not see how a jury

might reasonably infer that the plaintiff’s husband was killed by the negligence of the

defendants; the accident was simply left unexplained; and the all important question of the cause

of the vehicles hitting one another was left unresolved by the circumstantial evidence.

38. Citing from an unreported judgment of the High Court of Australia in the case of

Bradshaw v McEwans Pty Ltd (delivered on the 27th

April, 1951)1, Dixon C.J. made it clear

that all that is necessary was that according to the course of common experience the more

probable inference from the circumstances that sufficiently appeared by evidence or admission,

left unexplained, should be that the injury arose from the defendant’s negligence. By more

probable was meant no more than that upon a balance of probabilities such an inference might

reasonably be considered to have some greater degree of likelihood. But the law which this

passage attempted to explain did not authorise a court to choose between guesses, where the

possibilities were not unlimited, on the ground that one guess seemed more likely than another or

the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively

drawn of the truth of which the tribunal of fact might reasonably be satisfied.

39. The Court will return to other submissions advanced on behalf of the parties on this issue

later in the judgment and will determine whether a prima facie case of fraud has been made out

by the Claimant which required Mr. Ojar, Adam Ojar and Ms. Davi Kissoon to go into the

witness box.

1 Referred to in Holloway v. McFeeters (1956) 94 CLR 470.

Page 26 of 55

STANDARD OF PROOF IN CIVIL FRAUD

40. In the case of In re B (Children)(Care Proceedings: Standard of Proof) (CAFCASS

Intervening) [2009] 1 A.C. 11, Lord Hoffmann took the opportunity to consider the standard of

proof in certain cases. According to him [paragraph 4] the question which appeared to have

given rise to some practical difficulty was the standard of proof, that is, the degree of persuasion

which a tribunal must feel before it decides that the fact in issue did happen. Citing In re H

(Minors) (Sexual Abuse: Standard of Proof) [1996] A. C. 563, Lord Hoffmann said, that that

case made it clear that the ordinary civil standard of proof must be applied. The court must be

satisfied that the occurrence of the fact in question was more likely than not.

41. At paragraph 5, Lord Hoffmann went on to observe that some confusion had however

been caused by dicta which suggested that the standard of proof might vary with the gravity of

the misconduct alleged or even the seriousness of the consequences for the person concerned.

He pointed out that the cases in which such statements had been made fell into three categories.

First, there were cases in which the court had for one purpose classified the proceedings as civil

(for example, for the purposes of article 6 of the European Convention for the Protection of

Human Rights and Fundamental Freedoms) but nevertheless thought that, because of the serious

consequences of he proceedings, the criminal standard of proof or something like it should have

been applied. Secondly, there were cases in which it had been observed that when some event

was inherently improbable, strong evidence might be needed to persuade a tribunal that it more

probably happened than not. Thirdly, there were cases in which judges were simply confused

about whether they were talking about the standard of proof or about the role of inherent

probabilities in deciding whether the burden of proving a fact to a given standard had been

discharged.

42. Lord Hoffman considered the case of Hornal v Neuberger Products Limited [1957] 1

Q.B 247 (cited by the parties to this Court), which he described as a case in the second category.

Page 27 of 55

In Hornal, Holdson L.J. cited Lord Denning’s judgment in Bater v Bater [1951] P. 35, 36, 37.

Lord Denning was of the view that the difference of opinion which had been evoked about the

standard of proof in recent cases might well turn out to be more a matter of words than anything

else. Lord Denning further stated that in civil cases, the case might be proved by a preponderance

of probability, but there might be degrees of probability within that standard. The degree

depended on the subject matter. According to Lord Denning, a civil court, when considering a

charge of fraud, would naturally require for itself a higher degree of probability than that which

it would require when asking if negligence was established. It did not adopt so high a degree as

a criminal court, even when it was considering a charge of a criminal nature but still it did

require a degree of probability which was commensurate with the occasion.

43. The case of In re Dellow’s Will Trusts [1964] 1 W.L.R. 451 was also cited to the Court.

In that case, Ungoed-Thomas J. observed that in civil cases it is not so much that a different

standard of proof is required in different circumstances varying according to the gravity of the

issue; the gravity of the issue becomes part of the circumstances which the court has to take into

consideration in deciding whether or not the burden of proof has been discharged. The more

serious the allegation the more cogent is the evidence required to overcome the unlikelihood of

what is alleged and thus prove it.

EXPERT EVIDENCE OF RAMDEEN’S THUMBPRINT

44. Although in his pleaded case the Claimant had alleged that the thumbprints on the

impugned documents were not Ramdeen’s, at the trial, the Claimant did not present any witness

to support that contention.

45. In fact, Mr. Marcus conceded that the experts’ evidence did not advance the case one way

or the other and was inconclusive, and that he did not propose to cross-examine them. Mr.

Page 28 of 55

Ramkissoon had filed the witness statement of Mr. Patrick Sealy on the 1st April, 2010, but he

was never tendered as a witness at the trial. On the other hand, the witness statement of Mr. Joel

Williams (“Mr. Williams”) had been filed on the 1st April, 2010 and he was tendered as a witness

for Mr. Ojar and he was cross-examined.

46. By consent, the Report of Mr. Williams and the exhibits were admitted into evidence,

save and except for one document - Exhibit “B” to Report marked “B” annexed to Mr. Williams’

witness statement. That document purported to be an authorisation from Ramdeen to Mr. Ojar

and dated the 4th

January, 2003. With the agreement of the parties, it was admitted de bene esse

and Mr. Marcus cross-examined Mr. Williams on it.

47. In addition, Mr. Williams met with Mr. Louis D. Andrews fingerprint expert who acted

for the Claimant and they produced a Joint Report, which joint report read as follows:

MEETING BETWEEN LOUIS ANDREWS AND JOEL WILLIAMS ON 2008-04-16

FINDINGS

1. There are FRICTION RIDGES IN THE PATTERN GIVEN.

2. There are Characteristics in the print, which might make it difficult to make a

positive identification.

3. There are a few Characteristics in the print, which might make it difficult to make

a positive identification.

4. Mr. Louis Andrews made a conclusion based on the fingerprints he received that

the print was made by a Cadaver. He now agrees that it is unsafe to make such a

conclusion. He made that conclusion because the print he was given was too

poor because of the medium (pad and ink) used to take the impression. He cannot

now SAFELY say that the print was that of a Cadaver.

Page 29 of 55

5. We concur that the patterns can be interpreted and that the ones on the firearm

application are LOOPS and WHORLS and that the other prints are that of

LOOPS. We also concur that the Thumbprints on the other documents are not

any of the fingerprints on the finger print form.

48. By his Expert report (marked B), Mr. Williams described in detail how he examined the

original document purporting to be the Last Will and Testament of Ramdeen (“the Will”) which

was extracted from estate proceedings No. L-1783 of 2003 [an application for a grant of probate

of the Will of Ramdeen].2

49. Mr. Williams also examined the original documents purporting to be the Power of

Attorney and the Deed of Gift. Having examined the fingerprints on the Will, the Deed of Gift

and the Power of Attorney, Mr. Williams concluded that the fingerprints appeared to have been

made by one and the same person [page 6 of his Report]. He also came to the conclusion that

the thumbprint affixed to the Deed of Gift was affixed by a living human being and not that of a

cadaver [page 6 of his Report].

50. Mr. Williams went on to recount the circumstances in which he examined the fingerprint

slip purportedly that of Ramdeen and issued and made by the Trinidad and Tobago Police

Service and taken by P.C. Kissoon No. 13424 on the 20th

May, 1997. According to page 7 of his

Report:

I went to the Police Headquarters, Police Administration Building Sackville Street, Port

of Spain, at the Firearm Section. There I met one Cpl Peters who was the officer in

charge of that Department. In my presence, Mr. Ojar detailed to Cpl Peters the reason

for his visit, which concerned an examination of the application including the finger print

2 Contentious proceedings have been commenced by Seeta against the Claimant in H.C.A. 198 of 2004 converted

to CV2007-03646, which is pending before the Court.

Page 30 of 55

slip for a firearm users licence on behalf of Ramdeen Ramroop deceased. I showed Cpl

Peters a copy of the form and finger print slip exhibited as “S.R.6” in the statement of

case and inquired from him whether it was possible to view the original of the document

for the purpose of comparing it with other finger print impressions of the deceased, the

said Ramdeen Ramroop.

Cpl. Peters after conducting a search, informed us that there was no finger slip with

Ramdeen Ramroop’s fingerprints in his department. These documents were kept at the

Finger Print Department at the second floor of the said building. I then proceeded to the

fingerprint Department in the said building with Mr. Ojar and met one Cpl Junior

Benjamin to whom I detailed the purpose of the visit. Cpl Benjamin told me and I verily

believe that there was no application made by Ramdeen Ramroop and there was no

fingerprint slip of Ramdeen Ramroop in that Department. I did not get to see any

fingerprint document relative to Ramdeen Ramroop at the said Department.

51. Mr. Williams nevertheless examined the copy he had received from Mr. Ramkissoon and

conducted an analysis of the document which had been exhibited as “S.R.6” to the Claimant’s

Statement of case purporting to be a fingerprint slip made by Ramdeen. He compared what

purported to be the right thumbprint of Ramdeen on the fingerprint slip with the Will, the Power

of Attorney and the Deed of Gift and concluded that it was different in style, character and other

features. He therefore came to the conclusion that the thumbprint impression on the fingerprint

slip was not the same as on the Will, the Power of Attorney and the Deed of Gift.

52. What was made clear from the cross-examination of Mr. Williams was that he had never

seen the undisputed thumbprint of Ramdeen. All that he had done was to compare the

thumbprints which were shown to him. In addition, Mr. Williams said that he could not, as an

expert, discern whether the thumbprints which were examined were of a person whose thumb

was swollen.

Page 31 of 55

53. As to the objection taken by Mr. Marcus as to the admissibility of Exhibit B to Report

marked B, purporting to be an authorisation from Ramdeen to Mr. Ojar and dated the 4th

January,

2003, the Court upholds that objection. As pointed out earlier, Mr. Ojar did not give evidence;

the authorisation which was purportedly given to him by Ramdeen ought to have been put into

evidence through Mr. Ojar. Accordingly, that document remained a disputed document and is

inadmissible.

THE EVIDENCE

The Claimant’s Witness Statement

54. The Claimant is a Retired Supervisor with the Ministry of Agriculture, who lived at L.P.

47 Back Street, D’Abadie about three-quarter of a mile from Ramdeen’s home. According to the

Claimant’s witness statement filed on the 1st April, 2010, the Claimant also owned a house

approximately fifty (50) feet to the south of Ramdeen’s home. That house was the subject of a

legal action between Ramdeen and the Claimant and as a result of that legal action Ramdeen and

the Claimant were not on speaking terms. The Claimant said that Ramdeen was a pensioner for

fourteen (14) years prior to his death. Ramdeen retired at the early age of fifty-four (54) years in

1989 as a male nurse attached to the St. Ann’s Mental Hospital. At the time of his retirement,

Ramdeen was afflicted with diabetes.

55. According to the Claimant’s witness statement, Seeta lived at Ramdeen’s address for

some years prior to his death. After Ramdeen’s sister, Vera Ramroop, left Trinidad in or about

1991 – 1992, Seeta stayed there until Ramdeen’s death in 2003. According to the Claimant,

from the time Seeta came to Ramdeen’s premises in 1990, he did not visit Ramdeen’s home.

Page 32 of 55

56. The Claimant went onto say that on Monday the 19th

May, 2003, after receiving a

telephone call from his niece at about 4.30 in the morning he visited Ramdeen’s home. He

sounded his horn and went towards the gate which was locked. The lights were on in the house

but when he called out at the gate for about 5 – 10 minutes, the lights in the house went off and

no one answered. He left and went to his home.

57. At paragraphs 15 – 17 of the Claimant’s witness statement, he gave the following

evidence:

15. Later on the morning of 19th

May 2003 at about 6:45 to 7:00 I went to a house

which I own approx 50 in the house for security purposes since it is not continuously

occupied on the southern side of Ramdeen’s house to ensure it was secure and generally

look around. I visit the house very often and sometimes may stay a night there to give the

impression of a presence.

16. The house referred to in the preceding paragraph is an upstairs house and from

the gallery of that house I could see the gallery of the deceased’s house.

17. Whilst at my house at about 6:45 to 7:00 on 19th

May 2003 I saw George Ojar in

a dark coloured suit standing in the Gallery of the deceased’s home with a large brown

envelope in his hand., He was speaking to Seeta Ganeais and then they walked into the

living.

58. By his witness statement, the Claimant also said that subsequent to Ramdeen’s death he

discovered that Ramdeen had executed a Power of Attorney in favour of Seeta, that Seeta had

conveyed to Adam Ojar a parcel of land pursuant to the Power of Attorney and that another

parcel of land was conveyed to Seeta. The Claimant also said that the Attorney who prepared

and took execution of all the deeds was Mr. Ojar and that Adam Ojar was Mr. Ojar’s son to

whom two parcels of land were conveyed. In addition, searches revealed that Adam Ojar,

Page 33 of 55

through his duly constituted Attorney Ms. Davi Kissoon, a Law Clerk in Mr. Ojar’s office, sold

several parcels of the Mausica lands to some of the Defendants.3

59. Further, the Claimant gave evidence as to the firearm users license (“FUL”) for which he

alleged Ramdeen had applied. At paragraphs 28-29 of the Claimant’s witness statement, he

stated how the FUL came into his possession. Prior to the commencement of this action he had

advised his previous Attorney, Mr. Gurley of Messrs J.D. Sellier & Co. that Ramdeen had

applied for a FUL. The Claimant had obtained that information from one Sgt. Anand Madoo of

Arima who had since died. The Claimant received advice from Mr. Gurley and that very day, he

went to Police Headquarters at the corner of Sackville Street and Edward Street and requested

Ramdeen’s FUL. He showed the officer who attended to him and whose name he did not know

a copy of the newspaper publication of the application for Ramdeen’s estate and his death

certificate. After thirty (30) minutes, the officer returned and handed to him a FUL application

signed by Ramdeen. According to the Claimant, as soon as he left Police Headquarters, he went

directly to Mr. Gurley and gave him the FUL application form. Thereafter, the Claimant

changed Attorneys and according to him, his entire file, including the FUL application, was

given to him and he handed same over to his present Attorney.

The Cross-Examination of the Claimant

60. During cross-examination, the Claimant agreed that he had not spoken to Ramdeen for

twenty (20) years and that he was not pleased that Ramdeen was in a relationship with Seeta. He

denied that Seeta helped with the care of his ailing father Ramroop who died in 1990 and that

Seeta was living permanently with Ramdeen as man and wife. He also agreed that as a brother

he did not volunteer to perform the rituals at Ramdeen’s funeral according to the Hindu tradition,

because according to him, the wife or children of the deceased could do so; although he admitted

3 Paragraphs 23, 24 and 25.

Page 34 of 55

that at a Hindu funeral males carry out those traditions of circumambulating the pier and shaving

the hair. The Claimant later said that he was not asked to perform the rituals and also that he

wanted no part of the Kali tradition practised by Seeta and her family. “He backed off”, he said.

He further admitted that Seeta’s son, Delip, performed the Hindu rituals at Ramdeen’s funeral.

61. The Claimant again agreed that his relationship with Ramdeen was not a good one

because the Claimant had tremendous objections to Ramdeen’s relationship with Seeta. The

Claimant also agreed that Ramdeen was very ill in the last few years of his life and suffered from

diabetes and renal failure and was weak for several months.

62. The Claimant was also cross-examined on the FUL which he produced to the Court.

Whilst admitting that Ramdeen had retired in 1989 as being medically unfit and began to get

very ill around 1994 – 1995, he saw nothing strange about a man coming down in age and

suffering from such afflictions, applying for a FUL.

63. The Claimant was also cross-examined about a medical report of Dr. Clyde Tilluckdharry

dated the 21st February, 2006. According to Dr. Tilluckdharry, Ramdeen visited Auzonville

Clinic on the 20th

May, 1997 and had insertion of pack in his right ear. In other words, on the

same date that is the 20th

May, 1997, that Ramdeen was alleged to have made the FUL

application, he had visited Dr. Tilluckdharry for a medical procedure.

64. The Claimant also conceded that the Commissioner of Police by letter dated the 18th

July,

2006, had stated that Ramdeen did not at any time apply for a FUL. As a result, the

Commissioner of Police indicated that no fingerprint impression or slip in favour of Ramdeen

could be furnished.

Page 35 of 55

65. In addition, the Claimant was cross-examined on certain life certificates of Ramdeen

which had been tendered to the Court. He agreed that life certificate dated the 8th April. 2003

and Pension Notice (document bearing No. 8) both bore the same pension number (0051-)9-

020696. He acknowledged on the other hand that life certificates dated the 6th

October, 2002 and

the 3rd

April, 2003 carried a different pension number 23228 and were incomplete, the bottom

halves of both these documents not being filled out. The Claimant also admitted that these last

two (2) documents were provided by him to his Attorneys.

66. The Claimant agreed that by a letter dated the 20th

July, 2006, the Comptroller of

Accounts had responded to Mr. Ojar’s letter and indicated inter alia that life certificates are

destroyed after noting and that Ramdeen’s pension number was 9-020696.

67. The Claimant was also cross-examined by Mr. Seunath. The cross-examination revealed

inter alia that the lion’s share of Ramroop’s lands was left to Ramdeen, and in 1990 Vera and

Ramdeen took the Claimant to court over a property on which his house was located. The

Claimant conceded that when that case was filed against him, he was not getting along with

Ramdeen. Indeed, the Claimant described Ramdeen as his enemy and admitted that Seeta and

her children looked after Ramdeen who was a sick man, while he a blood brother, did not go to

visit him. The Claimant also said that Ramdeen and Seeta could not be man and wife since

Ramdeen was a sick man.

68. In addition, the Claimant admitted that although his case was premised (partly) on his

allegation that the Deed of Gift prepared by Mr. Ojar was a fraud or forgery because Ramdeen

could sign his name, he had not seen Ramdeen face to face for more than ten (10) years. In

addition, the Claimant also conceded that he could not say from his own personal knowledge

from the 3rd

April, 2003, whether Ramdeen was able to write.

Page 36 of 55

The Evidence of Sayeed Reeyad Ali

69. The witness, Sayeed Reeyad Ali (“Mr. Ali”) signed a witness statement on behalf of the

Claimant [dated the 31st March, 2010]. According to Mr. Ali, for some 30 years his family had

operated a poultry shop at 147 Aranguez Main Road, Aranguez on a property owned by

Ramdeen. He took over operations of the poultry shop in 1998 and he knew Ramdeen and could

recognise his signature. According to his witness statement, over the years he had heard his

uncle and his father [both of whom who previously operated the poultry shop] expressing their

desire to purchase the property at 147 Aranguez Main Road, Aranguez (“the Aranguez

property”).

70. According to Mr. Ali’s witness statement, in November, 2002, Ramdeen telephoned him

and said that he wanted to meet him. Ramdeen indicated that he did not want Mr. Ali to come to

his home because he did not want Seeta to be part of or to hear their discussions. According to

Mr. Ali’s witness statement, Ramdeen came to him and told him that he was ready to sell the

Aranguez property to him. Mr. Ali further stated that on many other occasions whilst speaking

to him Ramdeen said that he did not want Seeta or her family who were living in the same house

with him to get anything. Mr. Ali said in his witness statement that Ramdeen indicated to him

that Seeta and her family were after his property.4

71. According to Mr. Ali’s witness statement, he and Ramdeen negotiated the price and

arrived at a figure. He obtained a valuation on the Aranguez property on the 16th

December,

2002. He was $100,000.00 short of what Ramdeen required and Ramdeen took him to Mr. Ojar

to make out a paper whereby he would pay the sum of $100,000.00 by installments. Mr. Ali

stated that although he went to Mr. Ojar’s office to sign a document for the payment of the sum

of $100,000.00 by installments, and an agreement for sale, he never received either of the

4 Paragraphs 8 and 9 of the witness statement

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documents. According to Mr. Ali’s witness statement, after he received a letter of offer dated the

20th

February, 2003, the bank itself gave him a document which they requested that Ramdeen

sign agreeing to sell the Aranguez property to him. Mr. Ali further said in his witness statement,

that he gave the document to Ramdeen in early March, 2003 but by that time he was bedridden

and too weak to sign and appeared delirious.5

72. Mr. Ali also gave evidence in his witness statement of rent receipts received from

Ramdeen. According to him, the last rent receipt he received from Ramdeen was for the month

of December, 2002. That was the last time Ramdeen had come to his business to collect rent. In

January, 2003 when rent became due he went to Ramdeen’s home since he had communicated

with him by telephone. He was moving about the house. According to Mr. Ali, he did not

collect a receipt but he could not remember why he did not collect it. Further, he said that he

attended his home and paid him money. Again he did not receive a receipt from him. On that

occasion though he was obviously unwell, yet he was walking around and speaking to him.6

73. According to Mr. Ali’s witness statement, he went to Ramdeen to pay him rent for May,

2003. Ramdeen appeared very weak and was lying on his bed and was groaning as though in

pain. He further stated that having paid the rent for May, 2003, he received receipts for the

months of January, 2003 to May, 2003 from either Seeta or her daughter in law although he

could not remember from whom. According to him, the receipts were signed Ramdeen

Ramroop, but he did not recognise it as Ramdeen’s signature [paragraph 18].

74. On the 7th

May, 2010, an amplified witness statement of Mr. Ali was filed. Paragraphs 2

and 3 of this amplified witness statements are set out hereunder:

5 Paragraphs 10-14 of the witness statement

6 Paragraphs 15-17

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2 At paragraph 6 of my principal witness statement I stated that I still have many

receipts signed by Mr. Ramroop in my possession. These receipts were for rent

for the months of January, 2001 and November and December, 2002. Mr.

Ramroop would sign these receipts in my presence. I can recognise these receipts

mentioned if I see them. All of the receipts were from a general standard receipt

book, the name of my businesses (being either Reeyad Poultry Depot for the 2002

receipts or Poultry and Party Ice Ltd for the 2001 receipts) being the recipient

are stated on them, it states the rent received as $1500.00 and they have the

signature of Mr. Ramdeen Ramroop. These receipts are shown to me forming

part of what I am told is a bundle of documents and I also shown the originals

which I had in my possession and passed to Mr. Stephen Salandy and they are the

same receipts that I have indicated at paragraph 6 of my principal witness

statement and in this paragraph and are hereto annexed and marked SRA “1”.

3 At paragraph 18 of my principal witness statement I also stated that in the month

of May 2003 I received receipts for the months of January, 2003 to May 2003

from either Seeta Ganeais or her daughter in law. I can recognise these receipts

mentioned if I see them. All of the receipts were also from a general standard

receipt book, the name of my business being the recipient are stated on them, it

states the rent received as $1500.00. These receipts are shown to me forming

part of what I am told is a bundle of documents and I also shown the originals

which I had in my possession and passed to Mr. Stephen Salandy and they are the

same receipts that I have indicated at paragraph 18 of my principal witness

statement and in this paragraph and are hereto annexed as a bundle and marked

SRA “2”.

75. Mr. Ali was cross-examined. He said that Ramdeen personally issued receipts for rent

until he became sick and was unable to write. During the cross-examination of this witness, the

original rent receipts were tendered into evidence. The documents were tendered in two (2)

bundles:

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(1) Eleven (11) rent receipts starting February, 2002 and ending December, 2002

were marked “S.R.A.3” [the originals of S.R.A.1].

(2) Five (5) rent receipts starting 1st January, 2003 and ending 1

st May, 2003 were

marked “S.R.A.4” [the originals of S.R.A.2].

76. Mr. Ali was also cross-examined on the following receipts which were tendered into

evidence without objection:

(i) Receipt dated the 27th

January, 2003 for the sum of $4,500.00. [rent for the

months of February, 2003, March, 2003 and April, 2003 Paid in Advance] -

“S.R.A.5”.

(ii) Receipt dated the 2nd

January, 2003 for the sum of $1,500.00 [rent for the month

of January, 2003] – “S.R.A.6”.

(iii) Receipt dated the 2nd

January, 2003 for the sum of $1,500.00 [rent for the month

of January, 2003] – “S.R.A.7”.

(iv) Receipt dated the 29th

January, 2003 for the sum of $4,500.00 [rent for the months

of February, 2003, March, 2003 and April, 2003 Paid in Advance] – “S.R.A.8”.

77. According to Mr. Ali’s evidence in cross-examination, the receipts marked S.R.A.2

[copies] annexed to his amplified witness statements and also marked S.R.A.4 [originals] were

given to him either by Seeta or her daughter-in-law. Mr. Ali said they were signed by Ramdeen

but he did not recognise Ramdeen’s signature.

78. Surprisingly, Mr. Ali denied that he had given to the lawyers the receipts dated the 2nd

January, 2003 and the 29th

January, 2003 respectively [Exhibits S.R.A.7 and S.R.A.8]. He

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further denied that he had given to the lawyers receipts dated the 2nd

January, 2003 and the 27th

January, 2003 [Exhibits S.R.A. 6 and S.R.A.5].

79. In addition to those receipts, Mr. Ali was cross-examined on the exhibits to his amplified

witness statement filed on 7th

May, 2010 [Exhibit S.R.A.2] and the first document purporting to

be a receipt dated the 1st January, 2003 for the sum of $1,500.00 [rent for January, 2003]. Mr.

Ali, however, did not agree that there were in fact three (3) receipts identified by him for rent

paid for January, 2003.

80. The Court has also noted that there appeared to be a further duplication of receipts.

According to Mr. Ali, Seeta or her daughter in law handed him the receipts marked as S.R.A. 2

representing rent paid for the months of January, February, March, April and May, 2003. There

has been no explanation, however, as to the circumstances in which the following documents

were produced:

(i) Exhibit S.R.A.5 (dated 27th

May, 2003); and

(ii) Exhibit S.R.A.8 (dated the 29th

May, 2003).

It is clear that Mr. Ali provided no explanation for such duplication and took no responsibility

for producing same to the lawyers.

Seeta’s Witness Statement

81. Seeta signed a witness statement which was filed on the 1st April, 2010. The thrust of

Seeta’s evidence was that she and Ramdeen began a relationship from the 23rd

September, 1985

and in December, 1985, she moved in with her three (3) children to live with Ramdeen at No. 80

Mausica Road, D’Abadie. According to Seeta, they went to beaches throughout the country,

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shopped in Chaguanas and Arima, bought groceries together and did all activities which a family

did. Vera and Ramroop lived with them. According to Seeta, she helped to take care of

Ramroop as he was old and very ill. She was never paid and never expected payment. She was

accepted in the home as Ramdeen’s wife and did everything a wife was supposed to do in the

house. She stated that after she and Ramdeen began to live together, he dropped her children to

school and picked them up after school. At that time Ramdeen was working as a male nurse at

the St. Ann’s Hospital.

82. Seeta painted a grim picture of the Claimant, whom she claimed never came to look for

Ramroop and who stood opposite to the house and cursed and harassed him. According to her

evidence, on one occasion, the Claimant punched Ramroop in the face and he fell to the ground

when the Claimant began to kick him.

83. Seeta further said that after Ramroop died, the Claimant came on several occasions in

front of their house and cursed and verbally abused Ramdeen and threatened to beat him. The

abuse was always about the property, that is to say, No. 80 Mausica Road, D’Abadie, which had

been transferred by Ramroop to Ramdeen sometime in 1988.

84. Seeta also gave evidence of Ramdeen’s illnesses. According to her, Ramdeen suffered

with an ear infection in 1997 which required two (2) surgeries, one on the 16th

January, 1997 and

the other on the 23rd

January, 1997. Both surgeries were done at Medical Associates. She relied

on the Medical report of Dr. Tilluckdharry dated the 21st February, 2006 and annexed as “D” to

her witness statement. By his Medical Report Dr. Tilluckdharry stated:

This is to certify that Mr. Ramdeen Ramroop was under my care both privately

and at the Port of Spain General Hospital.

I say him on 14/01/97 with chronic right otitis media with complications involving

mastoid necessitating minor surgery on 16/01/97 and major ear surgery on

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23/01/97. He attended Out Patients Clinic monthly until 21/12/02. During that

period he was always accompanied by his common law wife Ms. Seeta Ganeais

who paid all medical bills.

Mr. Ramroop visited Auzoville Clinic on 20/05/97 and had insertion of pack in

right ear.

Mr. Ramroop was also diabetic who had neurological, opthalmological and

eventually renal complications. He could not walk properly and had decreased

hearing in both ears and was unable to do things for himself.

He eventually died on 19/05/03 as a result of renal complications.

85. Seeta further testified that Ramdeen was warded at the Port of Spain General Hospital on

the 20th

August, 1997 and again in January, 1998 where he collapsed due to a low blood count.

He was given a blood transfusion. His health began to deteriorate rapidly thereafter and he was

forced to sell the taxi car. According to Seeta’s witness statement, during the time of Ramdeen’s

illness she took care of him and attended to all his needs like a wife. She had to stop working to

take care of him.

86. Seeta also said in her witness statement that when her daughter Andria got married in

June, 1997, Ramdeen performed the role of the father at the marriage ceremony. He also paid all

expenses for the wedding and purchased the wedding ring which Andria gave to her husband to

be.

87. Seeta also gave evidence in her witness statement of Ramdeen’s deteriorating health from

January, 2003. According to her, Ramdeen became ill on the 16th

January, 2003 and was

admitted to the Mount Hope Medical Hospital, where she took the responsibility as guarantor on

the admission forms. He needed dialysis treatment. He told her to contact Mr. Ojar and let him

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know that he wanted to see him. She contacted Mr. Ojar by telephone that same evening at his

home.

88. At paragraph 32 of her witness statement, Seeta said that she visited Ramdeen the

following afternoon. The room had been paid for and so visiting was allowed at anytime of the

day. When she arrived at Ramdeen’s bedside, he told her that Mr. Ojar and his secretary Davi

had visited him earlier that day and that he had made a Will and that she should contact Mr. Ojar.

Ramdeen was discharged on the 27th

January, 2003, and Seeta signed all the documents at Mount

Hope as Ramdeen’s common law wife. One such document was annexed to her witness

statement.

89. According to Seeta’s witness statement, at that time, Ramdeen was weak and could not

walk properly. Ramdeen told her that he wanted to demolish the old house and build a new

house for her. He was supposed to be on dialysis but he complained that it was too painful and

he never wanted to go back to hospital. Seeta then called the family doctor, Dr. Heira Murlin

Leelah, to visit the home. Dr. Leelah used to come to the home at Mausica once or twice a week

and gave Ramdeen injections and tablets. The Medical Report of Dr. Leelah was annexed to

Seeta’s witness statement and tendered into evidence without objection.

90. I will set out in full paragraphs 36 – 46 of Seeta’s witness statement:

36. The deceased’s health continued to deteriorate and he was unable to move

around to do anything for himself. His hand, fingers and feet were always swollen

causing him pain. I had to do everything for him including bank transactions and

changing his pension cheques. At the deceased’s request I called Mr. Ojar to our home

to see the deceased. Mr. Ojar came to our house and spoke to the deceased in my

presence about a Power of Attorney. Mr. Ojar took certain information from the

deceased and from me and left.

37. On the 19th

March, 2003 Mr. Ojar came with his secretary Davi Kissoon to our

house. Mr. Ojar showed us the Power of Attorney and read it aloud to the deceased in

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my presence. We were all sitting in the gallery at the time. The deceased then took his

left hand and raised his right hand, put his thumb in the ink pad and then placed his

thumb print on the said Power of Attorney. I then saw Mr. Ojar and Miss Kissoon sign

the document.

38. The deceased continued to speak to Mr. Ojar in my presence and in the presence

of his secretary, Davi Kissoon, informing him about his medical bills which were very

high and cost of medication which he said was exorbitant. It was difficult to meet the

mortgage payment and pay the utility bills for the property in San Juan. The deceased

then told Mr. Ojar that he want to sell the agriculture parcel of land in Caliste Trace to

raise some moneys.

39. On the evening of the 21st day of March, 2003 Mr. Ojar came to visit the deceased

and all three of us discussed the sale of the land.

40. The Deed for the sale of the land to Adam Ojar, Mr. Ojar’s son, was made on the

25th

March, 2003. However, all payments for the land were not in one payment. The

deceased and I agreed to accept instalment payments as we were in dire need of funds to

take care of the deceased and his medical bills. I received about five installment

payment. The last payment for the lands was given directly to Dass funeral home for the

funeral expenses of the deceased.

41. As time passed the deceased told me that he wanted to make sure that I have a

‘shelter to stay in’. At the end of March, 2003 the deceased told me that he wanted to

give me a sign in the property that we are living in at 80, Mausica Road, D’Abadie and

that I should call the lawyer and tell him to come. I did call Mr. Ojar and again the three

of us held discussions about the transfer of the deceased’s share in the property at 80,

Mausica Road, to me.

42. On the 3rd

day of April, 2003 Mr. Ojar and his secretary came to our home in the

evening with a document. The deceased was sitting in the gallery and Mr. Ojar, his

secretary Davi Kissoon and I joined him. Mr. Ojar then read the document to the

deceased and he explained to both of us that it was a Deed of gift transferring the

deceased share in the property to my name. Mr. Ojar further told us that a valuation

needs to be done and we needed to provide him with the Up to date Land Tax receipt and

WASA Bills.

43. It took some time for me to get the receipt and WASA Bill and bring it up to date.

Also we did not have the money at the time to do the valuation. The deceased told Mr.

Ojar that he should hold on to the deed until we get the money for the legal fees and

valuation. The legal fees were in the sum of $3,500.00 and the cost of the valuation was

$1,500.00 which was done by Prince Romeo.

Page 45 of 55

44. On the evening of the 8th

day of April 2003 Mr. Ojar and his secretary came to

our house. The deceased was required to fill out the Life Certificate for the Pension

Office. I gave Mr. Ojar the said form and he discussed it with the deceased. The

deceased then told me to give Mr. Ojar his National Insurance Card which I did. The

secretary, Davi, filled out both sections of the form and the deceased placed his Right

Thumb Print on the form. Mr. Ojar then signed the form and put his stamp on the form in

my presence.

45. Subsequently, I took the said form to the National Insurance Company on behalf

of the deceased.

46. On the morning of the 17th

day of May, 2003, which was a Saturday, I went to Mr.

Ojar office at Mission Road, Freeport, and paid him in full for the legal fees for the

Deed.

91. According to Seeta’s witness statement, Ramdeen died on Monday 19th

May, 2003 at

about 1.30 a.m. Dr. Leelah came and pronounced him dead. The Police also came from the

Maloney Police Station, saw the body and gave permission to take the body away. According to

her, the undertakers from Dass Funeral Home removed the body from the home at around 4.15

a.m. A neighbour Donna Burnett stayed with her and her children and consoled then until about

7.30 a.m. when she left.

Seeta’s Cross-Examination

92. Seeta was cross-examined on her relationship with Ramdeen and was really unshaken in

cross-examination on this issue. She was also cross-examined on the last months of Ramdeen’s

life. According to her from the time Ramdeen went to the hospital on the 16th

January, 2003, he

could not walk properly. By March and April, 2003 he was bedridden. They had to help him all

the time.

93. Seeta was also cross examined in detail as to the events surrounding the signing of the

Power of Attorney. She conceded that it was only after she called Mr. Ojar that she started to do

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bank transactions on Ramdeen’s behalf and it was only after she got the Power of Attorney that

she began changing Ramdeen’s pension cheques and started to do his business. According to

Seeta’s evidence, Mr. Ojar came in the second week of March and Ramdeen told Mr. Ojar that

he wanted to give her a Power of Attorney. Mr. Ojar asked Ramdeen if he was sure and

Ramdeen answered in the affirmative. Mr. Ojar asked Seeta for the correct spelling of her name

and took notes, but she did not see what notes Mr. Ojar was taking. Mr. Ojar returned on the 19th

March, 2003, with the Power of Attorney. Seeta was cross-examined as to the reason she

remembered that date so easily although she agreed that that date was not special to her. She

merely said that it was the date when Ramdeen put his thumbprint. Her evidence was “I asked

the question myself and I answer it when I feel to answer it”.

94. According to Seeta’s evidence in cross-examination, on the date when Ramdeen placed

his thumbprint she put him in the wheelchair (which he had when he wanted to move around in

the house) and put him in the gallery. Mr. Ojar came in the evening. Mr. Ojar, his secretary,

Davi Kissoon, Ramdeen and Seeta were all sitting in the gallery. Mr. Ojar took out a document

which he described as the Power of Attorney which Ramdeen had instructed him to prepare for

Seeta. Mr. Ojar read it and then he took Ramdeen’s thumbprint and put it on the document.

95. Seeta was also cross-examined as to the details with respect to the affixing of Ramdeen’s

thumbprint. This was what she said during cross-examination:

“He [Ramdeen] also read it too because he could read. He took his hand and put it in the ink.

Then he took the left hand and he hold the right and he put it on the Power of Attorney”.

96. She further said:

“The ink was right in front of him. I have a stand and a book, little bigger than the holy book in

Court; it was on his lap; I put everything on him”.

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97. Seeta was also cross-examined as to the sale of the lands at Caliste Trace. According to

her on the said 19th

March, 2003 Ramdeen told Mr. Ojar that he wanted to sell a parcel of land

because of his expenses. Her evidence was that Mr. Ojar returned on the 21st March, 2003 and

told Ramdeen that he was going to “ask his son to buy it. They were going to buy it.” Ramdeen

agreed and Mr. Ojar said he that would pay a deposit one time.

98. Seeta’s further evidence in cross examination was that Ramdeen told Mr. Ojar that he

would sell the land at a low price and that Mr. Ojar would have to give Seeta’s son a lot with the

three (3) bedroom house. Ramdeen told Mr. Ojar that the price was $120,000.00 because it was

agricultural land. Seeta also testified that she received the sum of $120,000.00 by five (5)

payments: there was a payment of $35,000.00 which was in cash and two (2) payments were by

cheque – one for $20,000.00 and the last payment of $10,000.00 the cheque was made out to

Dass Funeral Home. According to her, the cash received was not placed in the bank but kept at

home.

99. In addition, during cross-examination, Seeta denied that she ever gave to Mr. Ali any

receipts. She also testified that she did not call Mr. Ojar at 1.30 in the morning on the death of

Ramdeen because she had no time. According to her evidence she called Mr. Ojar that day in the

evening.

Seeta’s witnesses

100. Seeta’s son, Delip Comar Ganeais, gave evidence on Seeta’s behalf and supported his

mother’s case that she and Ramdeen lived as man and wife.

101. Arjoon Dhanow also gave evidence on her behalf of Seeta and supported her case that

she and Ramdeen lived as man and wife. He was a tenant of Ramdeen at Caliste Trace, Mausica

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Road, D’Abadie and had occupied two (2) lots of land since 1975. Dhanow said that he paid a

yearly rental of $24.00 for the one lot of land to Ramdeen. According to his witness statement,

in December, 1985, Ramdeen brought Seeta to his home and introduced her as his common law

wife, saying that she would come sometimes to collect the rent. He gave evidence that whenever

Ramdeen came to his home he brought Seeta with him and whenever he visited Ramdeen for

Hindu prayers, Ramdeen and Seeta sat together and performed the prayers.

102. In addition, Donna Bernnett, a teacher at Malick Secondary School, gave evidence on

behalf of Seeta. She was a neighbour of Ramdeen and Seeta and supported Seeta’s case that

Ramdeen and Seeta lived as man and wife. According to Mrs. Bennett, she visited them for

Hindu prayers when Ramdeen and Seeta would sit together and perform the prayers. Seeta

performed the Hindu ritual known as “arti” for Ramdeen. In addition, she testified that she was

present when Seeta’s son, Delip, got married and that Ramdeen had performed the rites of the

father in the Hindu marriage ceremony which took place at Ramdeen’s home at No. 80 Mausica

Road, D’Abadie.

103. Mrs. Bennett also gave evidence that she was present at Ramdeen’s home on the morning

of Ramdeen’s death. She had heard screams coming from the home and saw Seeta and her

children gathered in the gallery. According to her, she saw a white hearse parked in front of the

house at about 4.00 a.m. and did not go back to sleep because of the screams which could still be

heard. She went across to Ramdeen’s home at around 5.30 a.m.

104. The Court notes that these witnesses were unshaken in cross-examination. As to Mrs.

Bennett, the Court was particularly impressed with her evidence and accepts her as a witness of

truth.

105. In addition, a witness statement of Dr. Heira Murlin Leelah was filed on behalf of Seeta.

Mr. Marcus did not propose to cross-examine Dr. Leelah and by consent his witness statement

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was tendered into evidence. Dr. Leelah had been Ramdeen’s attending physician since 1985.

According to his witness statement, Ramdeen was ill for a long time, suffering with end state

renal disease, diabetes, congestive heart failure and anaemia. Dr. Leelah said that from

November, 2002, Ramdeen could not walk properly and was in need of assistance. His fingers,

hands and feet were always swollen. According to Dr. Leelah’s witness statement, during the

period the 16th

February, 2003 to the 16th

May, 2003, he attended to Ramdeen at Ramdeen’s

home. Ramdeen was bedridden at that time. According to Dr. Leelah, because of the severe

diabetes and kidney problems which afflicted Ramdeen, his hands and feet were swollen causing

him much pain and disability. He was unable to hold things properly, but he was always of

sound mind, alert and aware of what was happening around him.

The Evidence of the Ninth, Tenth, Eleventh and Twelfth Defendants

106. Witness statements of the Ninth, Tenth, Eleventh and Twelfth Defendants were filed and

these witness statements were all tendered into evidence. These witnesses, however, were not

cross-examined. Their evidence basically supported the allegations contained in their Defence.

CONCLUSIONS

107. It has been argued on behalf of the Claimant that a prima facie case has been made

calling for answers, response and explanatory evidence in rebuttal. The Claimant made the

following contentions in his written submissions filed on the 1st October, 2010.

(i) All the documents of significance, the Power of Attorney in favour of Seeta and the Deed

of Gift from Ramdeen to Seeta were witnessed by Mr. Ojar and his secretary, Ms. Davi Kissoon.

(ii) These documents recite that they were executed at the offices of Mr. Ojar, 123 Mission

Road, Freeport while Seeta’s evidence was that they were executed at Ramdeen’s home. The

deeds purport and were alleged to have been executed on different dates.

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(iii) The viva voce evidence of Seeta in relation to the Power of Attorney and surrounding

the other documents of which she claimed knowledge was very unsatisfactory and shaky. In

particular, her account of the execution of the Power of Attorney was incoherent. She could not

tell the Court where certain items were during the event.

(iv) The Claimant in both his witness statement and his oral testimony said that he saw Mr.

Ojar at Ramdeen’s premises at about 6.45 to 7.00 a.m. on the day of Ramdeen’s death with a

large brown envelope in his hand and speaking to Seeta. The coincidence of the Deed of Gift

being executed on the 3rd

April, 2003 and being registered only on the day of Ramdeen’s death

cries out for explanation from Mr. Ojar.

(v) The evidence has established that Ramdeen was able to write up to at least January, 2003

when he issued receipts to Mr. Ali. Seeta and Mr. Ojar have alleged that Ramdeen could not

write in March, 2003 and had to use his thumbprint, yet neither Mr. Ojar nor Ms. Davi Kissoon,

who both witnessed the documents, gave any oral testimony. Mr. Ojar offered no evidence.

(vi) Adam Ojar was the son of Mr. Ojar. In the circumstances of this case, the same

requirements that applied to an Attorney-at-Law for the protection of a client where concluding

transactions with his Attorney would apply to a transaction with the son or other close relative of

the Attorney. There was no evidence forthcoming from Mr. Ojar that the usual safeguards were

observed when dealing with a disabled client (Ramdeen) regarding the sale of the lands later

conveyed in the name of Adam Ojar and the obvious conflict of interest.

(vii) An inference may be drawn that the true purchaser of the lands sold for $120,000.00 was

Mr. Ojar and not Adam Ojar, since some of the other Defendants making sub-purchases stated in

their witness statements that Mr. Ojar described himself as the new owner of the land.

(viii) There was significance in Mr. Ojar not advising purchasers of the lites pendentes filed in

respect of the lands when selling to them. This warranted explanation.

(ix) When the circumstances of the execution of the Will and Deed of Gift were considered,

the question arose why did Mr. Ojar not seek to obtain written instructions from Ramdeen and, if

he did, why were they not produced on request.

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(x) No satisfactory evidence was led as to the payment of the consideration of $120,000.00

for the lands sold to Adam Ojar.

108. By the Claimant’s Further Submissions filed on the 17th

December, 2010, it was

submitted that there were diverse suspicious circumstances also referred to as “badges of fraud”

which called for an explanation and in the absence of such explanation the evidentiary burden

shifted to the Defendants.7 Some of these suspicious circumstances highlighted were certain

inconsistencies in the evidence and the medicals, that Adam Ojar did not file a witness statement,

and inaccuracies and inconsistencies on the face of the impugned documents.

109. On the other hand, it was submitted on behalf of Mr. Ojar that nothing had been proven

against him and that nothing arose in evidence in chief to suggest that he had perpetrated a fraud.

It was indeed submitted that the highest evidence was the allegation of Mr. Ojar with a brown

envelope on the morning of Ramdeen’s death. This was not sufficient to warrant a response.

[paragraph 4 of Mr. Ojar’s submissions filed on the 17th

September, 2010]. It was also submitted

that Mr. Ojar had nothing to answer and that the Claimant’s case lack the material evidential

requirements and failed to prove fraud both in terms of the evidence of experts and on the usual

or circumstantial evidence (supra). It was further contended that the absence of a witness or a

document could not be used to make up any deficiency in the Claimant’s evidence. The rule

could not be used to fill in gaps in the evidence or to convert conjecture and suspicion into

inference.

110. The Court has considered the evidence tendered on behalf of the Claimant. As a whole, I

do not accept the Claimant and his witness, Mr. Ali, as witnesses of truth. The Court agrees with

Mr. Ramkissoon that the Claimant’s evidence has been totally discredited. I do not accept the

Claimant’s evidence on a balance of probabilities that Ramdeen on the same day that he had a

7 Moody v Ashton 2004 CarswellSask 816; Kennedy v Green 58 E.R. 497 (1833).

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medical procedure on his right ear, would have made the FUL application. I also do not accept

on a balance of probabilities that a man so afflicted with illnesses and growing old with age

would apply for a FUL. The Court also treats with great suspicion the Claimant’s evidence as to

how the FUL application came into his possession. The Court notes that the Commissioner of

Police has confirmed that Ramdeen did not apply for a FUL at any time.

111. It is the Court’s view that the Claimant has fabricated not only the FUL application, but

also certain life certificates and rent receipts with a view to launching a claim of fraud against

these Defendants. The Court has already observed that life certificates dated the 6th

October,

2002 and the 3rd

April, 2003 carried a different pension number and were incomplete and that the

Claimant admitted that he had provided these documents to his Attorneys. He has given no

explanation for this.

112. In addition the Court has considered with much consternation Mr. Ali’s evidence and the

rent receipts for which Mr. Ali took no responsibility. Indeed, Mr. Ali denied that he had given

them to the Attorneys. No explanation has been forthcoming from the Claimant as to how these

rent receipts were made available to his Attorneys.

113. Having considered the above mentioned documents, it is the view of the Court that the

Claimant has fabricated several documents in an attempt firstly to disprove the thumbprints on

the Power of Attorney and the Deed of Gift, secondly to prove that Ramdeen was capable of

writing when the thumbprints were placed on the Power of Attorney and the Deed of Gift and

thirdly to prove that Ramdeen could have signed the Deed of Conveyance to Adam Ojar which

was signed by Seeta pursuant to the Power of Attorney.

114. In the circumstances, the Court places no reliance on Mr. Ali’s evidence. It was clearly

concocted to give the impression to the Court that Ramdeen did not regard Seeta as his wife, did

not trust her and wanted her and her children to get nothing from his estate. Indeed, the Court is

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of the view that Mr. Ali’s evidence that Seeta or her daughter in law gave him rent receipts in

May, 2003, for rent for the months of January – May, 2003, signed Ramdeen Ramroop but which

he did not recognise as Ramdeen’s signature, was fabricated to persuade the Court that Seeta and

her family were attempting to take over Ramdeen’s affairs and were even prepared to forge his

signature.

115. In addition, I do not accept the Claimant’s evidence that on the morning of Ramdeen’s

death, he saw Mr. Ojar with a brown envelope at Ramdeen’s home and speaking to Seeta. The

Court is of the view that this evidence was also fabricated in an attempt to build a case of fraud

against Seeta and Mr. Ojar and to place Mr. Ojar at the scene after Ramdeen’s death in support

of the Claimant’s case that the disputed thumbprints were really of a cadaver. Of course, the

allegation that the thumbprint was that of a cadaver more or less fell by the way after the findings

of the experts, Mr. Andrews and Mr. Williams and their joint report issued after their meeting on

the 16th

April, 2008.

116. I have considered the submissions advanced on behalf of the Claimant and referred to

earlier in this judgment. I do not agree with Mr. Marcus that a prima facie case of fraud has been

made out in all the circumstances of this case. In my judgment, having considered the evidence

and the submissions of the parties, a prima facie case of fraud has not been established against

Seeta, Mr. Ojar and Adam Ojar. Accordingly, the Court draws no adverse inferences from the

silence of Mr. Ojar, Adam Ojar and Ms. Davi Kissoon, there being no case for them to answer on

the issue of fraud.

117. On the other hand, the Court accepts the evidence of Seeta and her witnesses. I do not

agree with Mr. Marcus that Seeta’s viva voce evidence on the facts surrounding the execution of

the Power of Attorney and other documents was very unsatisfactory and shaky. The Court also

does not agree that the evidence as to the payment of $120,000.00 for the lands sold to Adam

Ojar was unsatisfactory. I have examined Seeta’s evidence and the evidence of her witnesses

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and I accept their evidence on a balance of probabilities. Indeed, I accept the evidence of Dr.

Leelah that Ramdeen suffered inter alia with swollen hands and feet and was unable to hold

things properly.

118. Mr. Marcus in his oral submissions argued on the Claimant’s behalf that the evidence

concerning the common law relationship between Ramdeen and Seeta had no probative value.

While I agree with Mr. Marcus’ contention that if Seeta were Ramdeen’s common law wife that

would be no justification for her forging documents, it is also true that if she were his common

law wife, it is more probable than not that Ramdeen would have willingly executed the Power of

Attorney and the Deed of Gift to her and there would be no need for her to forge them. Having

regard to all the evidence advanced on behalf of Seeta and in particular the evidence of Mrs.

Donna Bennett, which I have already considered, the Court accepts that Ramdeen and Seeta had

a common law relationship. As mentioned before, I accept the evidence of Mrs. Bennett, a

secondary school teacher, who was particularly impressive. I accept her evidence that she saw a

hearse parked outside of Ramdeen’s home at about 4.00 on the morning of his death and I

therefore find on a balance of probabilities that the body of Ramdeen was removed from his

home before the alleged sighting by the Claimant of Mr. Ojar holding a large brown envelope.

119. In all the circumstances of this case, I do not accept that the Claimant has established a

prima facie case of fraud or a case of fraud on a balance of probabilities bearing in mind the civil

standard of proof for fraud which I have already considered. The Claimant’s case is therefore

dismissed. Although a costs budget of $550,000.00 was fixed, I will hear submissions on the

issue of costs having regard to all the circumstances of the case, the number of parties before the

Court and their varying roles.

120. As to Seeta’s counterclaim, the Court agrees with Mr. Marcus’ contention that her

counterclaim cannot be sustained without evidence that she has complied with section 25 of the

Administration of Estates Act Chap. 9:01 and that she has filed with the Registrar of the

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Supreme Court the required notification of interest as the surviving cohabitant in accordance

with section 25(3) of that Act. Accordingly, Seeta’s counterclaim is also dismissed. The

counterclaim has not featured to any extent in this trial and I propose to make no order as to costs

of the counterclaim which I consider fair, just and appropriate.

ORDER:

(1) The Claimant’s claim is dismissed. The costs of the claim are reserved subject to the

submissions of the parties.

(2) The First Defendant’s counterclaim is dismissed with no order as to costs.

................................................

Maureen Rajnauth-Lee

Judge

‘