THE REPUBLIC OF TRINIDAD AND TOBAGO - …webopac.ttlawcourts.org/LibraryJud/Judgments/HC/seepersad/2008/cv... · THE REPUBLIC OF TRINIDAD AND TOBAGO ... the said lands between all

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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV2008-02860

Between

DOWAGA DANIEL

(Administrator Ad Litem in the Estate of Toyslin Daniel, deceased)

Claimant

AND

RUTHVEN DANIEL

(Executor of the estate of the deceased Leigh Hunt Daniel also known as

LeeHunt Daniel or Le Hunte Daniel)

Defendant

Before The Honourable Mr. Justice Frank Seepersad

Appearances:

1. Ms. R. Ramjit for the Claimant

2. Ms. D. Palackdharrysingh for the Defendant

Date of delivery: 11th

February, 2016

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Decision

1. This action concerns a parcel of land in which a Certificate of Title Volume 4488 Folio

159 was issued in the name of Leigh Hunte Daniel on the 18th

August 2003 pursuant to

the provisions of the Real Property Ordinance.

2. The land was previously occupied by Edward Ebenezer Daniel who was also called Lee

Hunt Daniel also called Lee Hunte Daniel, the father of Lee Hunte Daniel and the

Claimant. Edward Daniel however, did not have title to the said land and he died on or

about the 19th

day of July, 1957. A Deed of Assent registered as No. 2570 of 1970 was

executed by Eliza Elvira Daniel, his Widow and Administratrix and this Deed of Assent,

purported to transfer ownership of one-third of the land in question to Eliza Elvira Daniel

and a two-third interest in the said land to Lee Hunte Daniel, DeVerteuil Daniel, Viviette

Harry, Mitcheline Daniel, Theresa Daniel and Eloiza Daniel. This Deed however did not

effectively transfer of ownership of the land as same did not belong to the estate.

3. The land was in fact owned by Charles Henry Bradshaw, who in his Will, left a portion

of same to Maggie Percy, the mother of Edward Ebenezer Daniel. There is no evidence

that there was a transfer of ownership of this portion of the land to Maggie Percy or to

Edward Ebenezer Daniel.

4. Lee Hunt Daniel died on the 4th

day of February, 1997 and prior to his death he made an

application for the Certificate of Title with respect to the said land. The Defendant

Ruthven Daniel is Lee Hunt Daniel’s son and the Executor of his father’s estate.

The Claimant’s case

5. The Claimant’s case is that sometime around the year 1963 there was an agreement

between her and her other siblings with her deceased brother Lee Hunt Daniel, that he

would deal with all legal matters pertaining to their father’s estate and would distribute

the said lands between all the siblings in accordance with the well known wishes of their

father.

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6. The Claimant’s pleaded case was that in pursuance of the aforesaid agreement, certain

monies were given to Lee Hunt Daniel by the siblings and a family parcel of land in

Patience Hill Tobago was sold and a portion of the proceeds of the sale was given to Lee

Hunt for the purpose of sorting out the title to the said lands and for the distribution of

same.

7. The Claimant contends that on March 30, 2008, her siblings received information that the

Defendant had obtained a document which transferred the entire parcel of the said land to

Lee Hunt Daniel and on the same day her siblings also received information that the

Defendant was subdividing the land in preparation to sell parcels of same.

8. In April 2008 the Claimant’s Attorney caused a search to be done which revealed that

Lee Hunt Daniel had made an application to bring the lands under the RPO which was

granted. As a result of the search, the Claimant received documents which she alleged

contained fraudulent signatures of her and her four siblings.

9. The pivotal allegations of fraud pleaded by the Claimant are as follows:

a) That Lee Hunt Daniel lied in a statutory declaration when he swore that:

a. There were no other persons with a claim or interest in the said lands

b. All the siblings (including the Claimant) abandoned possession of the

land since attaining their ages of majority in the 1950’s.

c. That all the beneficiaries had acknowledged his right to possession of the

said lands and were not interested in the said lands.

b) That Lee Hunt Daniel tendered the following documents as evidence in his RPO

application which contained fraudulent signatures:

a. A document dated November 12, 1991 purportedly signed by five persons

including the Claimant the purport of which was to the effect that they

abandoned and renounced their rights to the said lands.

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b. A document dated August 27, 1990 purportedly signed by five persons

including the Claimant which indicated that they gave their consent to Lee

Hunt Daniel to apply to bring the lands under the RPO.

c. A document dated January 22, 1992 purportedly signed by five persons

including the Claimant, whereby they attested to the accuracy of the

document dated November 12, 1991.

10. The Claimant’s case is that she has been deprived of the use and enjoyment of her share

in the disputed land and her other siblings have also been so deprived.

11. Further the Claimant’s case is that in reliance of the representation made to her by her

brother Lee Hunt Daniel in 1995 regarding the disputed land being shared equally

between all the siblings, her son Donlyn Daniel with the consent of Lee Hunt Daniel built

a house on a portion of the said land which was identified by Lee Hunt Daniel and she

further contended that the true intention as well as the family agreement with her brother

Lee Hunt Daniel was reflected in his Last Will and Testament dated March 08, 1995.

The Defendant’s case

12. The Defendant admitted that there was a Deed of Assent registered as No. 2570 of 1970

but stated that Edward Ebenezer Daniel also known as Gurrie Daniel did not lawfully

own the parcel of land described therein and it did not lawfully comprise part of his estate

therefore, the Deed of Assent did not pass any title in the said land. The land according to

the Defendant was actually owned by Charles Henry Bradshaw and Louis Plageman

subsequently had control over the lands as executor of Henry Bradshaw’s estate and that

the land would not have been assented and conveyed by Eloiza Daniel.

13. The Defendant stated that he spoke to the Claimant since 2004 and informed her that he

was in possession of the Certificate Title and that it was in his father’s name only. The

Defendant said he was also in contact with Oslyn Harry, the son of Vivet Harry and

directly with Dowaga Daniel from time to time and he always told them about the

progress he had made with Town and Country Planning. This was done although the

land was in the name of Lee Hunt Daniel. The Defendant stated that the application to

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bring the lands under the RPO was published in 1993 in the daily newspapers and the

Claimant had proper notice of the application.

14. In relation to the allegations of fraud the Defendant pleaded that he was unable to admit

or deny the particulars of fraud as set out in the pleadings since it was impossible for him

to know the intentions of Lee Hunt Daniel however the Defendant advanced that to the

best of his knowledge, Lee Hunt Daniel at all material times acted honestly and believed

the representations he made. Further, the Defendant said that Lee Hunt Daniel had

reasonable grounds to believe and did believe up to the time of his death that the said

representations were true and he puts the Claimant to the strict proof of all the particulars

of fraud as detailed in the Amended Statement of Case.

15. The Defendant’s case therefore was that his father did not become the owner of the

disputed land by fraud as alleged

16. In addition the Defendant stated that the Claimant acquiesced to the title of the said land

being vested in Lee Hunt Daniel, by virtue of her inaction and she was not entitled to the

reliefs sought.

17. In the matter the Claimant sought the following orders:

a. A declaration that the said Certificate of Title issued on 18th

August 2003

under the provisions of the Real Property Ordinance Ch 27 No. 11 be

cancelled.

b. A declaration that the named Defendant holds on trust for the Claimant a

one-seventh share in the said lands described in the Certificate of Title

issued on 18th

August 2003.

c. An order that the named Defendant do transfer to the Claimant the one-

seventh share of the said lands.

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d. A declaration that the Claimant be declared the fee simple owner of that

portion of the said lands representing a one-seventh of the said portion of

lands.

e. An order for possession of that portion of the said lands which represents

as one-seventh share of the said portion of lands.

f. A quia timet injunction that the Defendant be hereby restrained from

selling or developing the said parcel of land which is represented as one-

seventh each of the said portion of lands rightfully belonging to the

Claimant.

g. An injunction prohibiting the Defendant or his servants or agents be

restrained from entering upon the said portion of lands rightfully owned

by the Claimant.

h. Specific performance of the contract.

i. Damages for breach of contract in lieu of or in addition to specific

performance.

j. In the alternative, an order compelling the Defendant to do the deed(s) of

assent vesting in the Claimant a one-seventh share or interest in the said

lands in accordance with the bequests in the Will of the deceased Lee

Hunt Daniel.

k. A declaration that at clause 5 of his Last Will and Testament the

deceased, Lee Hunt Daniel, intended to and did in fact carry out the family

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agreement thus entitling each of his siblings to one-seventh share in the

said lands.

l. Costs

m. Interest at such rate and for such period as to the Court seems fit.

n. Such other or further relief that the Court deems fit.

Issues to be determined

18. The issues to be determined are as follows:

i. Whether the issued certificate of title should be cancelled on the basis that same

was obtained by fraud.

ii. Whether there was a family agreement that Lee Hunt Daniel would act on behalf

of his siblings so as to ensure that they all received an equal share and interest in

the said lands.

iii. Whether the doctrine of laches should be applied so as to disentitle the Claimant

from pursuing any remedy before the Court.

Resolution of Issues

Issue 1: Whether the issued certificate of title should be cancelled on the basis that same was

obtained by fraud.

19. Sections 37, 45 and 142 of the Real Property Act Chp. 56.02 provides as follows:

- Section 37

Every certificate of title duly authenticated under the hand and seal of the

Registrar General shall be received, both at law and in equity, as evidence of the

particulars therein set forth, and of their being entered in the Register Book, and

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shall, except as hereinafter excepted, be conclusive evidence that the person

named in such certificate of title, or in any entry thereon, is seized of or possessed

of or entitled to such land for the estate or interest therein specified, and that the

property comprised in such certificate of title has been duly brought under the

provisions of this Act; and no certificate of title shall be impeached or defeasible

on the ground of want of notice or of insufficient notice of the application to bring

the land therein described under the provisions of this Act, or on account of any

error, omission, or informality in such application or in the proceedings pursuant

thereto by the Judge or by the Registrar General.

- Section 45

Notwithstanding the existence in any other person of any estate or interest,

whether derived by grant from the State or otherwise, which but for this Act

might be held to be paramount or to have priority, the proprietor of land or of any

estate or interest in land under the provisions of this Act shall, except in case of

fraud, hold the same subject to such mortgages, encumbrances, estates, or

interests as may be notified on the leaf of the Register Book constituted by the

grant or certificate of title of such land; but absolutely free from all other

encumbrances, liens, estates, or interests whatsoever, except the estate or interest

of a proprietor claiming the same land under a prior grant or certificate of title

registered under the provisions of this Act, and any rights subsisting under any

adverse possession of such land; and also, when the possession is not adverse, the

rights of any tenant of such land holding under a tenancy for any term not

exceeding three years, and except as regards the omission or misdescription of

any right of way or other easement created in or existing upon such land, and

except so far as regards any portion of land that may, by wrong description of

parcels or of boundaries, be included in the grant, certificate of title, lease, or

other instrument evidencing the title of such proprietor, not being a purchaser or

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mortgagee thereof for value, or deriving title from or through a purchaser or

mortgagee thereof for value.

- Section 142

Any grant or certificate of title registered under the provisions of this Act, so long

and so far as it remains uncancelled in the Register Book, and so far as no

discrepancy is shown to exist between it and the duplicate thereof, shall be

conclusive evidence of the matters thereon stated, or thereon endorsed by the

Registrar General, except as in this Act provided.

20. In Clarke v. Masterson HCA 2319 of 2004, Tiwary Reddy J explained at paragraph 33

the effect of the aforementioned sections as follows:

“33. It is a fundamental principle of the system of registered conveyancing that

the title of every proprietor registered thereunder is “absolute and indefeasible”

and cannot be impeached or affected by the existence of an estate or interest

which, but for the registration, might have had priority per Bereaux, J, as he then

was, in HCA 75 of 2000 Dillon v. Almandoz.

34. The Privy Council has said that “the sections making registered certificates

conclusive evidence of title are too clear to be got over”: Assets Co. v. Mere

Roihi [1905] AC 176 at 202 – “The cardinal principle of the Statute is that the

register is everything”: Waimiha Sawmilling Co. v. Waione Timber Co. [1926]

AC 101 at 106. Indefeasibility of title is subject to certain stated exceptions in the

Act.”

Further explanation of these sections was provided by Deyalsingh J in Crease .v. Voisin

(1980) High Court of Trinidad & Tobago No.1997 of 1971:

“The probable intention behind section 37 was to facilitate the proof of title in

Court. Judicial notice is to be taken of the seal of the Registrar General as the

authentication of the registered estate. When so sealed, a certificate of title has

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conclusiveness given to it by the section. The section is clear and “except as herein

excepted” the certificate of title herein put in by the defendant is conclusive

evidence that he is seized and possessed of or entitled to the lands described

therein in fee simple. Section 45 is also clear. It is the “key” section of the

ordinance and provides the quality known as indefeasibility of title to the

registered proprietor. Subject to certain exceptions, when a certificate of title has

become embodied in the register book, that title becomes indefeasible. There can

be no retrospective examination of the documents by which the person named

therein achieved the status of registered proprietor and no questioning of the

Registrar General to certify his title. Generally, there is to be “no going behind the

register in order to investigate the history of the title or to be satisfied as to its

validity.” Gibbs v. Messez [1891] AC 248. The title of the person is indefeasible.

It draws that quality from the words in section 45.”

21. The effect and purport of the aforementioned sections of the Real Property Act results in

a circumstance that a Certificate of Title stands as conclusive proof of ownership of the

said land, unless, the criteria as set out in the subsections of sec. 143 of the Act can be

satisfied.

22. Section 143 of the Real Property Act Chp. 56.02 provides as follows:

“No action of ejectment or other action for the recovery of any land shall lie or be

sustained against the person registered as proprietor thereof under the provisions

of this Act, except in any of the following cases:

(a) the case of a mortgagee or an annuitant or a lessor as against a mortgagor or a

grantor or a lessee in default;

(b) the case of a person deprived of any land by fraud, as against the person

registered as proprietor of such land through fraud; or as against a person

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deriving, otherwise than as a transferee bona fide for value, from or through a

person so registered through fraud;

(c) the case of a person deprived of or claiming any land included in any grant or

certificate of title of other land by misdescription of such other land or of its

boundaries, as against the proprietor of such other land not being a transferee

thereof bona fide for value;

(d) the case of a proprietor claiming under the instrument of title prior in date of

registration under the provisions of this Act, where two or more grants or two or

more certificates of title, or a grant and a certificate of title, may be registered

under the provisions of this Act in respect of the same land: And in any case other

than as aforesaid, the production of the original grant, certificate of title, or other

instrument shall be held, both at law and in equity, to be an absolute bar and

estoppel to any such action against the person named in such instrument as the

proprietor of the land therein described, any rule of law or equity to the contrary

notwithstanding: Provided that nothing herein contained shall prevent a plaintiff

from obtaining in an action judgment for specific performance of a contract for

the sale or lease of land under this Act, nor prevent a beneficiary entitled to call

for a transfer from a trustee from obtaining a decree for such transfer or such

vesting order as hereinbefore mentioned.”

23. The Claimant’s case, in relation to the cancellation of the Certificate of Title is premised

in fraud. In Roberts v. Toussaint (1963) 6WIR43, Wooding CJ at page 433 stated:

“Moreover, in actions in which a registered title is being impeached, fraud means

some dishonest act or omission, some trick or artifice, calculated and designed to

cheat some person of an unregistered right or interest: See Waimiha Sawmilling

Co v Waione Timber Co ([1926] A C 101, PC, 38 Digest (Repl) 893, *1183)

([1926] AC at pp 106‑107).”

24. When fraud is alleged pursuant to Sec. 143, the Court has to determine whether the

objective of the transfer was to cheat someone who had a known existing right or whether

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there was some deliberate stance or act of dishonesty that was employed, so as to cause

the non registration of an interest.

25. In Khan, Baby .v. Farouk, Khan Anors. Civ. App No. 101 of 1997, Hamel Smith JA

indicated that there must have been an intention to take away land from the owner by

means that involved some moral turpitude.

26. Section 142 (b) requires, that, the person who institutes an action to have a Certificate of

Title cancelled, must be a person who has been deprived of the disputed land. The

Claimant’s case is that she as well as her other siblings, each had an entitlement to the

disputed land as the entire portion of same was used and owned by their father.

27. The evidence clearly suggests that Edward Ebenezer Daniel controlled the subject lands

although same was legally vested in Charles Henry Bradshaw. Consequently any

entitlement of the said lands prior to the application to bring same under the RPO had to

be premised upon the possession of same.

28. The Claimant’s contention in relation to fraud is that the application that was filed to

obtain the Certificate of Title and in particular the documents annexed to the RPO

application as 6 b(i) to (iii) contained forged signatures of the Claimant and her siblings.

Those documents were consent documents that essentially purported to authorize Lee

Hunt Daniel to apply for a Certificate of Title to the said lands and they were prepared by

Mrs. Deborah Moore-Miggins Attorney at Law. During the management of this matter

before another Judge, it was ordered that Mr. Glen Parmassar was to be appointed to

determine the authenticity of the signatures on the documents. Subsequent to obtaining

the Parmassar report, Mrs. Moore Miggins caused the generation of another report from

Mr. Patrick Sealey in relation to the authenticity of the said signatures. Mr. Sealey

testified as an expert witness called on behalf of the Defendant at trial.

29. In Singh and Singh v. Singh and Tai Chew HCA 530 of 1991, Narine J (as he then

was) dealt with a scenario of fraud and said as follows:

“The burden of proving fraud lies on the person who alleges it. It must be

distinctly alleged and distinctly proved. The standard of proof is on a balance of

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probabilities. However, the standard is flexible, and requires a degree of

probability commensurate with the seriousness of the occasion. The more serious

the allegation the more cogent is the evidence required to overcome the likelihood

of what is alleged. The very gravity of an allegation of fraud is a circumstance

which has to be weighed in the scale in deciding as to the balance of

probabilities.”

30. In the circumstances of the instant case and having regard to the fact, that, any finding by

the Court that the signatures on documents 6b (i-iii) attached to the RPO application were

not that of the Claimant or her siblings, would necessarily impact upon the professional

reputation of Mrs. Moore-Miggins as she had signed some of the documents as an

attesting witness, the Court formed the view that the gravity of the allegations and the

possible impact on the professional standing of a senior legal practitioner necessitated the

need for cogent evidence and the gravity of the allegations had to be factored into the

scale when a determination of this issue, on a balance of probabilities, had to be

undertaken.

31. As a result the Court pursuant to the provisions of Part 40.6 of the CPR (1998 as

amended), summoned Mrs. Moore-Miggins to testify at the trial. Mrs. Miggins testified

that due to the passage of time she could not recall the actual event when the signatures

were appended but she said that it has never been her practice to append her signature as

an attesting witness unless she actually saw the persons whose signatures appear on a

legal document, sign same.

The Expert witness

32. Mr. Glen Parmassar, Forensic Document Examiner, prepared an expert report and he

examined the following questioned documents: an affidavit dated 12 November 1991

(Q1), an affidavit dated 22 January 1992 (Q2) and a consent document dated 27 August

1990 (Q3). Based on his examination of samples of Dowaga Daniel’s signature, he

concluded that it was highly probable that the questioned signatures in Q1 and Q3 were

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not executed by the writer of the sample signatures. With respect to Q2 he concluded that

the questioned signature was not executed by the writer of the samples.

33. In Sookram v Narine HCA 1881 of 1994 Mendonca J (as he then was) explained at

page 8 that the reason for an expert’s explanation of the basis for his opinion is to furnish

the Judge with necessary criteria for testing the accuracy of the expert’s conclusion so as

to enable the Judge to form his own independent judgment.

34. Although at page 5 of his report Mr. Parmassar stated that he found significant

differences between the known samples and the queried samples, there was no attempt to

demonstrate to the Court, using enlargement or magnification, the visual differences

between the known samples and the queried samples.

35. The Court formed the view that Mr. Parmassar did not provide sufficient information as

to the exact methodology that he adopted when he undertook the analysis which resulted

in the opinions that he expressed and the Court was left without the necessary criteria

with which it could properly test or attempt to gauge or measure the accuracy of the

conclusions expressed and so form its own independent judgment.

36. The Court was also not satisfied with the quality of the specimen signatures of Dowaga

Daniel that were provided to the experts. The Court, noted that the provided samples

were not taken from a time period that coincided with the time when the questioned

signatures were allegedly made.

37. The known samples provided for Dowaga Daniel, included a photocopy of a Trinidad and

Tobago Identification Card which was issued in 1998, a sheet of paper containing five

specimen signatures and a photocopy of an affidavit dated 9/3/79. The sheet of paper

containing the five specimen signatures was not dated. The questioned documents were

dated 12 November 1991, 22 January 1992 and 27 August 1990 respectively and five out

of the seven sample signatures were produced at least 18 years from the date of the

queried samples.

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38. In Sookram v. Narine (supra) the Court at page 15 pointed out that in order to determine

whether signatures are the same it is best if the signatures which are provided so as to

undertake the comparison, are contemporaneous with the disputed signatures.

39. In De Freitas v Alphonso Modern Record Store Ltd (1991) 45 WIR 239 the Court of

Appeal of Guyana refused to admit fresh evidence because the evidence of the

handwriting expert related to a comparison of the alleged signature of a person at age 69

with a signature at age 76. The Court also acknowledged that a person’s handwriting

changes more rapidly and usually deteriorates with age.

40. Mr. Parmassar acknowledged in cross examination, that the identification card of

Dowaga Daniel was not an ideal specimen sample given the nature of the card surface as

opposed to paper. The 18 year gap between the provided known samples and the

disputed signatures was viewed by the Court as significant and this inordinate length of

time created serious doubt in the Court’s mind as to the value of the findings of both

experts.

41. The Court also noted that in the case of Dowaga Daniel’s signature, two of the seven

samples provided, were photocopies. In relation to Mitcheline Daniel and Eloiza Daniel,

the only signatures provided were photocopies. The Court formed the view that in

arriving at his conclusion in relation to the signatures of Mitcheline Daniel and Eloiza

Daniel, Mr. Parmassar utilized samples which were less than ideal.

42. With respect to the signature of Eloiza Daniel, Mr. Parmassar opined that it was highly

probable that the same was not executed by the specimen written. The Court noted that

the signature in the questioned document was appended in capital letters but none of the

specimen samples which were provided for Eloiza Daniel were written with the use of

capital letters.

43. Mr. Sealey in his report made findings that were wholly inconsistent with Mr.

Parmassar’s report. The Court noted that Mr. Sealey’s report was generated after Mr.

Parmassar’s report and neither the Claimant nor her attorney had any input in the

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documents or the instructions that were sent to him. Mr. Sealey also had no original

documents at his disposal and the instructions that were sent to him were not disclosed.

44. In the circumstances and for the reasons outlined the Court found no assistance from

either expert witness. The Court, however, accepted Mrs. Moore-Miggins’ evidence.

The Court believed that she was a witness of truth and found on a balance of probabilities

that she would not have signed as a witness, unless, she had seen the persons whose

signatures appeared on the documents in question, actually sign same. Mrs. Moore-

Miggins is a practitioner of unquestioned integrity and she had no interest in these lands

and it is improbable that any circumstance existed which may have influenced her to act

in any dishonest or inappropriate manner.

45. The Court formed the view that the Claimant failed to discharge the burden imposed

upon her and the Court was unable to find that the signatures on the disputed documents

were not the signatures of the parties. The Claimant therefore failed to establish fraud in

accordance with section 143 of the Real Property Act Chp. 56.02.

Issues II: Whether there was a family agreement that Lee Hunt Daniel would act on behalf of his

siblings so as to ensure that they all received an equal share and interest in the said lands.

46. The resolution of this issue was fact dependant. The Claimant’s evidence on this issue

was found at paragraph 21 of the witness statement of De Verteuil Daniel. This witness

died prior to the trial and a hearsay notice was filed in respect of his evidence. At

paragraph 21, the witness who was the Claimant and Lee Hunte’s brother spoke of an

agreement and promise that the land would be transferred to all the children of his father

in equal shares.

47. The Court also considered the hand written instructions to Mr. Brian Busby dated January

17, 2009 which were annexed as “B” to the witness statement of Toyslin Daniel. In the

notes on the first page, Dowaga Daniel stated that “I signed as I was told that when he

got the land in his name and then it will be shared up amongst the siblings.”

48. The Court noted that Lee Hunt Daniel in his Last Will and Testament intended to give a

portion of the disputed land to the Claimant and her siblings. At Clause 5 the Testator

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stated, “I have already entrusted to my said Executor a draft outline of the manner that I

wish him to distribute the said lands subject to his obtaining approval from the Town and

Country Planning Division for his proposed sub-division”.

49. On this issue, as to whether there was a family agreement, the Defendant in his witness

statement simply stated that he did not know of any such agreement or arrangement.

50. The witness De Verteuil Daniel at paragraph 12 of his witness statement said he gave to

Lee Hunt Daniel the sum of $300.00 to defray administration expenses. The Court was

cognizant that this witness was not cross examined but had no reason to disbelieve the

evidence on this issue and no other evidence was led so as to dispute this assertion.

51. In the first statutory declaration of Lee Hunt Daniel dated October 29, 1984, the deponent

stated that the owner of the lands Charles Bradshaw was the reputed husband of his

grandmother Margie Percy and that they both lived together on the disputed land until

their respective deaths. He also said that his father, Gurrie Daniel was the son of Margie

and that he lived on the land from birth until he died in 1957. Daniel further stated that

he and all his brothers and sisters grew up on the land.

52. In his declaration sworn on June 04, 1988 Lee Hunt Daniel stated that all his brothers and

sisters to whom he referred to, had absolutely no interest in the said land as they each

abandoned possession of the said land since the attaining of their respective ages of

majority in the 1950’s.

53. Notwithstanding the aforementioned assertions the evidence of the Defendant is that up

to 2004 he continued to give updates to the Claimant and other siblings of Lee Hunt

Daniel relative to the land. The Court therefore asked itself why was there the need to

give updates to his father’s siblings if they had abandoned their interest in the land?

54. In another declaration which Lee Hunt Daniel made on February 25, 1993 he stated that

his mother’s share in his father’s estate merged with his brother and sisters and that “her

interest is now merged in the land with our share as we are the next of kin and the only

persons entitled to share in her estate”.

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55. Having reviewed the evidence, in its totality, the Court found as a fact that a family

arrangement did exist and that Lee Hunte Daniel led his siblings to believe that he acted

at all times for and on their behalf and that he did in, 1993, recognize that they

collectively had an interest in the said lands. The Court found that it was more likely than

not that there was an arrangement which transcended a moral obligation, that the land

would be shared and this is probably why Lee Hunte Daniel directed his Executor as to

the manner in which the land should be distributed among his beneficiaries which

included the Claimant and his other siblings. The Court also found that the application in

Lee Hunt Daniel’s name solely may have been done as a matter of convenience but that

the intention to share the land was always present.

56. The Court also found that it was significant that the Claimant’s son Donlyn Daniel has

since on/or about 1995 erected a house and has lived on a portion of the disputed land

and that his occupation was with Lee Hunt’s consent. The giving of consent to Donlyn

was in the view of the Court consistent with an acknowledgment that all children of the

deceased Edward Daniel had an interest in the lands.

Issues III: Whether the doctrine of laches should be applied so as to disentitle the Claimant from

pursuing any remedy before the Court.

57. In Mahabir v. Mohammed CV 2011-1574, Dean Armorer J, at page 17 stated

“Having considered the submissions and arguments of learned counsel, in these

proceedings, it is my view that the following principles are to be culled from the

authorities:

Specific performance is an equitable remedy. In granting this remedy

equity does not act concurrently with that of the law. Accordingly

limitation statues do not apply by analogy to the remedy of specific

performance. See Deryck Mahabir v. Courtnay Phillips.

The doctrine of laches may prevent the Court from granting specific

performance.

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Laches does not depend on delay alone. It is generally applicable where

one or both of two situations are present: Where the claimant has failed

to take action to enforce his rights in such a way that his inaction could

be construed as a waiver of his rights. The second situation arises where

the defendant experiences a change of position and there is consequent

prejudice which may attend the grant of specific performance. Where

either of these two situations is present, it is my view, that the Court

may refuse specific performance on the ground of laches

It is my view however that even where the two situations are present,

the Court may nonetheless grant specific performance if it is just so to

do. Conversely, even where the two situations are absent, the Court

may nonetheless apply the doctrine of Laches, if delay on the part of

the plaintiff has been so unreasonable as to be regarded as

unconscionable. Equity is embedded in conscience and the Court of

Equity, in my view, must consider whether in all the circumstances the

delay was unconscionable. The answer of this question does not depend

on a numerical quantity. Accordingly the span of almost 10 years did

not prevent the Court of Appeal from granting specific performance in

Sharif Fida Hosein v. Dassie Harrydath. In my view, the answer

depends on an assessment by the Court of all the circumstances and a

determination as to whether, having regard to the delay, it would be

unconscionable to grant specific performance.”

58. This Court formed the view that the length of time that was taken to institute the instant

action was not unreasonable and found that there were no circumstances so as to justify

the withholding of the grant of equitable relief.

59. In the circumstances and having found that there was a family arrangement to share the

lands the Court hereby orders as follows:

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a) The Court declares that a family arrangement existed and that the lands in

question has to be divided, equally between all the children of Edward Daniel.

b) The Court declares that a 1/7 share and interest in the lands as described in the

Certificate of Title Volume 4488 Folio 159 is held on trust for the Claimant and

the Defendant shall within 14 days of the presentation of a Memorandum of

Transfer to convey the said 1/7 share of the lands to the Claimant, execute same

and make available to the Claimant, the Certificate of Title for registration. In

default the Registrar of the Supreme Court shall be empowered to execute the said

Memorandum of Transfer. This cost for the preparation and registration of the

said Memorandum of Transfer is to be borne by the Claimant.

60. The parties shall be heard on the issue of costs.

..................................................

FRANK SEEPERSAD

JUDGE