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TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
Cv. 2009-4675
BETWEEN
IMTIAZ ALI Claimant
AND
STEVE GANEESINGH 1st
Defendant
HARRY PERSAD 2nd
Defendant
DHARMINDRA PERSAD 3rd
Defendant
BEFORE THE HONOURABLE MADAM JUSTICE M. DEAN-ARMORER
APPEARANCES
Mr. Samuel Saunders, Attorney-at-Law for the Claimants.
Mr. Asaf Hosein instructed by Ms. Nisha Persad, Attorneys-at-Law for the Defendants.
JUDGMENT
Introduction
1. This action was instituted pursuant to part 69 of the Civil Proceedings Rules (C.P.R.)
19981. The claimant, as mortgagee, sought orders for possession and repayment of the
outstanding debt. In the course of this decision, the Court considered the circumstances in
which an order for possession should be made.
Procedural History
2. On the 15th
December, 2009, the claimant filed a fixed date claim form seeking the
following relief:
1 Civil Proceedings Rules (CPR) 1998
Page 2 of 15
“(1) Possession of ALL AND SINGULAR that certain piece or parcel of
land situate in the Ward of Chaguanas…comprising NINE
THOUSAND AND THIRTY ONE SUPERFICIAL FEET…delineated
and coloured pink and shown as Lot No. 9 on the plan attached to and
registered as No. 17329 of 1964…2
(2) Repayment of the sum of $344,500.00”
3. The claimant experienced difficulty in effecting service on the defendants and obtained the
Court’s permission to effect service by placing an advertisement in a daily newspaper of
general circulation in the Republic of Trinidad and Tobago.
4. In May, 2011, when this action came up for case management there was an appearance for
the second and third defendants only. The Court granted permission to the second and
third defendants to file affidavits in opposition to the claim.
5. The Court subsequently directed that the filed affidavits be treated as pleadings, that is to
say that the affidavit of the claimant be treated as the statement of case and the affidavit of
Harry Persad, the second defendant be treated as a statement of defence. The Court then
proceeded to give standard pre-trial directions.
6. This matter was listed for trial on the 3rd
and 4th
February, 2014. On the second day of
trial, the second defendant, Harry Persad, after having taken the oath, began complaining
of pains in his chest. He became gravely ill and had to be taken to hospital. The
defendants subsequently filed a hearsay notice indicating their desire to have the witness
statement of the second defendant tendered in to evidence on the ground that he was
suffering from a myocardial infraction.
2 “The Subject Property”
Page 3 of 15
Evidence
7. The Court heard the evidence of four (4) witnesses: the claimant, Imtiaz Ali; attorney-at-
law, Nisha Allahar; the third defendant, Dharmindra Persad and the forensic examiner, Mr.
Glenn Parmessar. The evidence of the second defendant, Harry Persad was produced to
the Court by way of a hearsay notice.
8. The claimant Mr. Imtiaz Ali testified that in June, 2002, he had agreed to lend the sum of
two hundred and eighty thousand dollars ($280,000.00) to the first defendant, Steve
Ganeesingh, and that the second and third defendants agreed to secure the loan to the first
defendant by mortgaging the subject property.
9. The claimant testified that the deed of mortgage was executed on the 17th
July, 2002, at the
offices of R.C. Chadeesingh and Company, in the presence of attorney-at-law, Mrs. Nisha
Mathura Allahar. A copy of the deed of mortgage was produced in an “Agreed Bundle”,
which was tendered into evidence by consent and marked “N.M.A.2”.
10. The claimant testified that he had advanced the agreed sum of two hundred and eighty
thousand dollars ($280,000.00), but that the sum, had not been repaid by the date of the
filing of this claim.
11. Under cross-examination, the claimant insisted that the second and third defendants were
present at the offices of R.C. Chadeesingh and Company on the day in question and that
they executed the deed. The claimant also insisted that the sum of two hundred and eighty
thousand dollars ($280,000.00) was indeed transferred to the first defendant. The claimant
volunteered that the funds had been placed in his brother’s account, and that his brother
made a banker’s order, which was given to the first defendant.
Page 4 of 15
12. Mrs. Nisha Allahar, attorney-at-law testified in support of the claim. It was her evidence
that she was well acquainted with the second and third defendants, having prepared a deed
for their execution in July, 2001. Mrs. Allahar testified further that she saw the second
and the third defendants again in July, 2002. On this occasion, according to Mrs. Allahar
they instructed her to prepare a deed of mortgage in favour of the claimant in respect of
their share of the subject property. Mrs. Allahar told the Court that she prepared the deed
of mortgage pursuant to their instructions. It was Mrs. Allahar’s evidence that on the 17th
July, 2002, the claimant together with the three defendants attended her office at R.C.
Chadeesingh and Company. The defendants there executed the deed of mortgage in her
presence. Following execution by the defendants, Mrs. Allahar and her secretary also
signed the deed.
13. Mrs. Allahar testified that, in spite of her acquaintance with the defendants, she obtained
copies of their identification cards.
14. This witness stated further that prior to executing the mortgage, she ordered a title search
of the premises. The search revealed that on two earlier occasions, the second defendant
had mortgaged the property to secure loans for the first defendant. The first deed of
mortgage was dated the 7th
June, 1983 and the second was dated the 12th
February, 1988.
15. Mrs. Allahar was cross-examined by learned attorney-at-law, Mr. Hosein. This witness
confirmed that she was acquainted with the first defendant, Steve Ganeesingh, and stated
that before 2002, he had been a long-standing client of R.C. Chadeesingh and Company.
She also confirmed that Harry Persad, the second defendant had given her written
instructions.
Page 5 of 15
16. In the course of being cross-examination, Mrs. Allahar responded to questions as to the
number of deeds which she had executed as an associate of the firm of R.C. Chadeesingh
and Company and as to her ability to recall the one in question. Mrs. Allahar admitted that
by the year 2001, she would have executed hundreds of deeds. She referred to the “usual
execution” where parties attended to execute a deed based on an appointment, they would
have attended before to give instructions.
17. When asked whether the answers which she gave were based on memory, Mrs. Allahar
replied that she remembered some of it and remembered the parties attending the office.
Mrs. Allahar also indicated that when the second and third defendants attended her office
in 2002, she remembered them from the prior transaction.
18. The second defendant, Harry Persad testified in his witness statement dated the 24th
April,
2012, that the claimant was a stranger to him. He stated that the first defendant had been
his son-in-law, who had been married to his daughter, Indrani Gopee. The second
defendant deposed that he had no relationship with the first defendant since the breakdown
of the relationship between Indrani and the first defendant. Harry Persad was cross-
examined briefly before becoming ill and being rushed to the hospital. Under cross-
examination he admitted that he had mortgaged the subject property in 1983 in order to
secure a loan for the first defendant.
19. The second defendant, in his witness statement denied that he executed any mortgage and
denied that he agreed to secure any loan for the first defendant. The first defendant denied
that the signature appearing on the deed, next to the name, Harry Persad, was his signature.
20. Mr. Harry Persad fell ill just prior to his cross-examination. Accordingly his testimony had
not been fully tested in cross-examination.
Page 6 of 15
21. The evidence of the third defendant, Dharmindra Persad was identical to that of his
father’s, Harry Persad. Dharmindra, like his father Harry, denied all knowledge of the
alleged transaction and claimed that he had no interaction with the claimant since the mid-
90’s.
22. Dharmindra was cross-examined. He told the Court that he last saw the claimant in 1999.
This witness consistently denied that he signed the mortgage and claimed to be unaware of
all other issues.
23. Mr. Glenn Parmessar provided expert evidence on behalf of the second and third
defendants. It was his evidence that the signatures which appeared on the mortgage deed
were probably not those of the second and third defendants. According to his expert
evidence, there was no finding of absolute certainty. Mr. Parmessar also told the Court
that he had unsuccessfully requested further specimen signatures from the second and third
defendants.
24. Mr. Parmessar was cross-examined by learned attorney-at-law, Mr. Asaf Hosein. Under
cross-examination, Mr. Parmessar told the Court that he would normally study ten (10)
specimen signatures. Mr. Parmessar also indicated that his examination was limited
because he did not have “a sufficient number of specimen signatures to arrive at more
conclusive findings...”
25. In answer to learned counsel, Mr. Saunders, Mr. Parmessar admitted that he had
reservations and that he had asked for more specimens. He agreed that the specimens
which had been provided were less than desirable.
26. Mr. Parmessar told the Court that at the top of the scale of certainty is a finding of
“conclusive”, then “highly probable”, then “probable”.
Page 7 of 15
Facts
27. It has been admitted and established by evidence that the second and third defendants
together with Bindrawati Maharaj were co-owners of the subject property. They are all
related. Both Bindrawati Maharaj and the third defendant are children of the second
defendant. The first defendant, Steve Ganeesingh had been married to Indrani Gopee, also
a daughter of the second defendant. The single issue of fact which arises for the Courts
determination is whether the second and third defendants executed a deed of mortgage in
July, 2002 to secure a loan for the first defendant.
28. For reasons which are set out at paragraphs 54 and 55 below, it was my view that the
claimant has proved on a balance of probabilities that the second and third defendants in
fact executed the deed.
Submissions and Law
29. Parties relied on the submissions as filed by their attorneys-at-law.
30. Learned attorney-at-law for the second and third named defendants, by their submissions
filed on the 21st March, 2014, argued that the second and third defendants had not signed
the deed of mortgage. They argued further that the claimant could not obtain an order for
possession because Bindrawati Maharaj, one of the joint owners of the property, had not
been party to the mortgage and had not been brought before the Court.
31. Learned attorney-at-law cited and relied on Fisher and Lightwood’s Law of Mortgage
(11th
Edition) as stating:
“Any person other than the mortgagor who has an independent right to remain
in occupation should also be made a defendant…”
Page 8 of 15
32. Citing Section 17 (1) of the Conveyancing and Law of Property Act3, learned attorney-at-
law for the second and third defendants argued further that the second and third defendants
were only capable of conveying by way of mortgage, the shares which they actually held in
the subject property.
33. Mr. Hosein argued further that prior to obtaining an order for foreclosure, the claimant was
required first to obtain judgment against the first defendant as primary borrower.
34. Learned attorney-at-law, Mr. Hosein argued that attorney-at-law, Mrs. Allahar had failed to
advise the defendants of their need as sureties, to obtain independent legal advice. In this
regard, the Court has observed that the second and third defendants had not pleaded as a
defence that the second and third defendants lacked independent legal advice. Moreover,
Mr. Hosein had not explored this aspect of the defence with Mrs. Allahar in the course of
cross-examination.
35. Mr. Saunders, learned attorney-at-law for the claimant, contended in his written
submission filed on the 14th
May, 2014, that his claim had been instituted pursuant to Part
69 of the Civil Proceedings Rules (CPR) 1998 and that it is not a pre-requisite of such a
claim that judgment be obtained before the claimant can proceed against sureties.
36. Learned attorney-at-law argued further that the second and third defendants as parties to
the deed of mortgage are jointly and severally liable to the claimant for monies advanced to
the first defendant.4
37. Mr. Saunders argued further that the submission that the claimant had employed an
incorrect procedure was without merit. Mr. Saunders contended that the claimant’s action
3 Conveyancing and Law of Property Act. Ch. 56:01
4 See paragraph 12 of the Written Submissions filed on behalf of the claimant on the 14
th May, 2014.
Page 9 of 15
had been instituted pursuant to Part 69.1 (a) to (g) of the CPR5 and that an order for
possession was among the available items of relief.
38. Mr. Saunders agreed however that the second and third defendants held only two-thirds
(2/3) share of the property and that the claimant would be entitled to possession of two-
thirds (2/3) of the premises. Mr. Saunders did not identify the portion of the undivided
share to which the claimant was entitled.
Law
39. Part 69.1 of the CPR6 provides:
“This Part deals with claims by a mortgagor or mortgagee for any of the
following forms of relief:
(a) payment of moneys secured by a mortgage
(b) sale of a mortgaged property
(c) foreclosure
(d) possession of a mortgaged property
(e) delivery of possession by the mortgagee”
40. Part 69.2 requires that the mortgage claim ought to be made by issuing a fixed date claim7.
41. Part 69.4 prescribes the evidence which ought to accompany a claim for possession of
mortgaged property or payment of a mortgage debt. Part 69.4 is set out below:
“On a claim for possession of the mortgaged property or for payment of the
mortgaged debt the claimant must file with the claim form evidence –
(a) exhibiting a copy of the original mortgage
5 Civil Proceedings Rules (CPR) 1998
6 Civil Proceedings Rules (CPR) 1998
7 Ibid Part 69.3
Page 10 of 15
(b) exhibiting a copy of any other document which sets out the terms of the
mortgage
(c) giving particulars of
(i) the amount of the advance
(ii) interest payable under the mortgage
(iii) the amount of any periodic payments required to be made stating
whether or not such payments include interest
(iv) the amount of repayments that have been made
(v) the amount remaining due under the mortgage
(vi) where the claim includes a claim for interest to judgment, the daily
rate at which such interest accrues
(d) where the claimant seeks possession of the mortgaged property –
(i) stating the circumstances under which the right to possession
arises
(ii) giving details of any person other than the defendant and his family
who to the claimant’s knowledge is in occupation of the mortgaged
property.”8
42. Learned counsel, Mr. Hosein relied on the learning in Fisher and Lightwood’s Law of
Mortgage, where the learned authors had this to say a paragraph 19.32
“... A mortgagee’s application for an order for possession is simply an order
for recovery of land and is not proceedings for enforcing the mortgage...
8 Civil Proceedings Rules (CPR) 1998, Part 69 (4)
Page 11 of 15
...Any person other than the mortgagor who has an independent right to
remain in occupation should also be made a defendant. It will generally be
advisable to join every person who may assert a claim...”9
43. At page 402 of their textbook, the learned authors of Fisher and Lightwood’s Law of
Mortgage, set out the law concerning the mortgagee’s remedies for recovery of the debt.
The learned authors wrote:
“The purpose of the mortgage is to secure repayment of the mortgagor’s debt
at the time agreed between the parties...”10
44. At page 433, the authors of Fisher and Lightwood’s Law of Mortgage wrote:
“Every mortgage implies a loan and every loan implies a debt for which the
borrower is personally liable. There will usually be an express covenant to
repay...”11
45. At paragraph 17.4, the learned authors wrote:
“The claim on the covenant can be maintained against any covenantor
whether principal or surety...”12
Reasoning and Decision
46. In these proceedings, a copy of a deed made on the 17th
July, 2002, was tendered into
evidence as part of the Agreed Bundle. The deed was purportedly made between the first
defendant, Steve Ganeesingh, as borrower, Harry Persad and Dharmindra Persad as owners
and the claimant as lender.
9 Fisher and Lightwood’s Law of Mortgage (11
th Edition) Paragraph 19.32
10 Ibid at paragraph 16.9
11 Ibid at paragraph 17.1
12 Ibid at paragraph 17.4
Page 12 of 15
47. The first recital of the deed identified Harry and Dharmindra Persad of the owners in fee
simple of the subject property.
48. Then, at Clause 1 of the deed, the borrower and the owner made a covenant to pay the sum
of two hundred and eighty thousand dollars ($280,000.00) to the lender by the 15th
January, 2003, and a further sixty-four thousand and five hundred dollars ($64,500.00), if
the larger sum was not paid by the stipulated date.
49. The covenant to pay was stated to have been made in pursuance of the agreement by the
claimant to lend the first defendant the sum of two hundred and eighty thousand dollars
($280,000.00).
50. Paragraph 1 of the deed contained the following clause:
“In pursuance of the said agreement and in consideration of the sum of TWO
HUNDRED AND EIGHTY THOUSAND DOLLARS ($280,000.00) advanced
and paid by the lender to the borrower...the Borrower and the Owner hereby
covenant with the Lender to pay him on the 15th
day of January, 2003 the said
sum of $280,000.00…”
51. The claimant filed a fixed date claim form seeking to enforce the covenants witnessed by
the deed and sought an order for possession of the premises, or in the alternative, recovery
of the sum of three hundred and forty-four thousand and five hundred dollars
($344,500.00).
52. The first defendant never took part in these proceedings. The trial proceeded against him
without any defence on his part. In my view, the claimant is entitled to judgment against
the first defendant for payment of the sum of three hundred and forty-four thousand and
five hundred dollars ($344,500.00) which he covenanted to repay.
Page 13 of 15
53. The second and third defendants have appeared in these proceedings and have advanced a
bald denial that they had ever signed the deed. They have admitted that they were
acquainted with the first defendant who had been married to Indrani Gopee, who was and
continues to be the daughter of the second defendant and the sister of the third defendant.
They have contended that they had not seen the first defendant since the mid-90’s, and that
they are complete strangers to the matters alleged in the claim.
54. The burden of proof is of course carried by the claimant, who is required to establish on a
balance of probabilities that the second and third defendants executed the deed.
55. Having considered the evidence earlier in this judgment, I have accepted the evidence of
attorney-at-law, Nisha Allahar, that she was well-acquainted with the defendants and that
they had signed the deed in question. Moreover, I have accepted the evidence of Ms.
Allahar as a professional and as an independent witness.
56. Evidence in support of the defence included the testimony of Glenn Parmessar, the
Forensic Examiner. Mr. Parmessar, by his own testimony, lacked sufficient handwriting
samples for the purpose of comparison. Even without the assistance of sample signatures,
Mr. Parmessar’s findings were not conclusively in favour of the second and third
defendants, finding no more than the probability that the signatures were not those of the
second and third defendants. In my view, the inconclusive findings of the document
examiner do not displace the firm and confident testimony of Mrs. Allahar. I therefore find
on a balance of probabilities that the second and third defendants attended the office of
R.C. Chadeesingh and Company on the 17th
July, 2002, and executed the deed in the
presence of Mrs. Allahar, as alleged by the claimant.
Page 14 of 15
57. The issue which remains for my determination is whether the claimant is entitled to
possession of the subject premises or payment, by the defendants, of the sum of three
hundred and forty-four thousand and five hundred dollars ($344,500.00).
58. In my view the claimant is not entitled to an order for possession. It had been admitted by
the claimant, in written submissions filed on his behalf, that the second and third
defendants were co-owners of the subject property with Bindrawati Maharaj, who was and
continues to be the daughter of the second defendant and the sister of the third defendant.
The law in this regard is clear that any person who has an independent right to remain in
occupation should be joined as a party. In my view, the failure of the claimant to join
Bindrawati Maharaj as a defendant precludes the claimant from recovering possession.
59. Moreover, it has also been admitted, by the claimant, that the second defendant and the
third defendant each hold a third undivided share in the property. It would be impossible
to make an order for possession without first ascertaining the portions held by the second
and third defendants. Accordingly, it is my view and I hold that the claimant is not entitled
to an order for possession.
60. I turn now to consider whether the claimant is entitled to recover the outstanding sum of
three hundred and forty-four thousand and five hundred dollars ($344,500.00).
61. The law is clear, that a claim on the covenant to pay may be maintained against any
covenantor, either principal or surety (See Fisher and Lightwood’s Law of Mortgage at
paragraph 17.4). In these proceedings all defendants covenanted to pay. In my view they
are jointly and severally liable to make good the sum in question.
62. Belatedly, in written submissions filed on behalf of the second and third defendants, the
defendants contended that the claimant had not proven that he ever advanced the sum of
Page 15 of 15
two hundred and eighty thousand dollars ($280,000.00) to the first defendant. This
contention is unacceptable, not only because it had not been pleaded by way of the
statement of defence, but because it is inaccurate. The first paragraph of the deed of
mortgage records the advance of the sum by the claimant, as lender, to the first defendant,
as borrower. This document stands as documentary evidence that the sum of two hundred
and eighty thousand dollars ($280,000.00) had been advanced to the first defendant.
63. By the written submissions of their learned counsel, the second and third defendants have
maintained that they were denied the opportunity to obtain independent legal advice. Once
again, this issue had not been pleaded in the statement of defence. In my view, it would be
wholly unfair to allow such an argument to be advanced for the first time at the stage of
written submissions, since the claimant would have had no opportunity to traverse these
allegations by way of pleading or evidence.
64. Accordingly, it is my view and I hold that there ought to be judgment for the claimant
against all defendants for the sum claimed.
Order
65. The defendants to pay to the claimant the sum of three hundred and forty-four thousand
and five hundred dollars ($344,500.00).
66. The defendants pay to the claimant costs prescribed in the sum at fifty eight thousand and
six hundred and seventy-five dollars ($58,675.00).
67. Stay of execution of sixty (60) days.
Dated this 12th
day of March, 2015.
M. Dean-Armorer
Judge
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