republic of trinidad and tobago in the high court of...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV2014-01431

SOOBARTAR DEONARINE also called SOOBHARTA DEONARINE

(in her capacity as the Legal Personal Representative of the Estate of Deonarine Ramrattan

also called Deonarine Ramjattan, deceased, by her lawful attorney, Ramlakhan Deonarine

by virtue of a Power of Attorney registered as No. DE201400521994) CLAIMANT

AND

JAMWANTI SATNARINE

(in her capacity as the Legal Personal Representative of the Estate of Ramrattan also called

Rattan and the Estate of Satnarine Ramrattan also called Satnarine Rupchand Ramrattan,

deceased) DEFENDANT

AND

ESAU HOSEIN AND

BRIDGEPORT ENTERPRISES LIMITED

INTERESTED PARTIES/ANCILLARY CLAIMANTS

AND

SOOBARTAR DEONARINE also called SOOBHARTA DEONARINE

CLAIMANT/ANCILLARY DEFENDANT

Before The Honourable Mr. Justice Robin N Mohammed

Appearances:

Ms. Laura Bailey for the Claimant/ Ancillary Defendant

Mr. Odai Ramischand for the Defendant

Mr. Gregory Delzin instructed by Ms. Faikah Carrmuddeen for the Interested Parties/Ancillary

Claimants

______________________________________________________________________________

JUDGMENT

______________________________________________________________________________

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BACKGROUND

1. This matter is one which has evolved to consist of a variety of applications and necessitates

attention being paid to various claims pertaining to the same parcel of land. The matter,

CV2014-01431 (hereinafter referred to as the Main Claim or Principal Claim, commenced with

the Claimant filing her Fixed Date Claim Form together with Statement of Case on the 25th April,

2014. It concerned lands in the estate of Ramrattan also called Rattan, with the Claimant seeking

inter alia, to have it declared that she is legally entitled to an undivided 1/8 share of the property

in dispute (hereinafter referred to as “the disputed parcel of land”), an Order that the Defendant

assent an undivided 1/8 share in the said parcel of land to her within 14 days of the date of the

Order, in default of which the Registrar of the Supreme Court shall be authorized and empowered

to execute a Memorandum of Assent in favour of the Claimant, a further Order that the Registrar

General of Trinidad and Tobago do issue a Certificate of Title to the Claimant for the said

undivided 1/8 share in the said parcel of land, costs and such further or other reliefs as the Court

may deem just and expedient in the circumstances.

2. On the 9th May, 2014 the Defendant entered an Appearance and thereafter, on the 22

nd May 2014,

filed a Notice of Application and affidavit in support seeking to strike out the Main Claim, or, in

the alternative, seeking to have the said Claim heard together with Claim No. CV 2014-00645.

3. On the 24th June, 2014, the Claimant filed an affidavit in response to that of the Defendant filed

on the 22nd

May, 2014. On the 15th July, 2014 the Claimant filed a Notice of Application seeking

sanctions against the Defendant for non-compliance with the Court Order of the 10th June, 2014.

On the 18th July, 2014 the Defendant filed a Notice of Application, along with an affidavit in

support, seeking relief from sanctions for failure to comply with the Court’s order of the 10th June

2014 regarding the date for the filing of submissions. She sought an extension of time to do so.

On the 18th July, 2014, the Defendant also filed an affidavit in response to the Claimant’s filed on

the 24th June, 2014. Submissions were also filed by the Defendant regarding the nature of the

Claimant’s Statement of Case on that date, with the Defendant claiming that the Statement of

Case is irregular and that the Fixed Date Claim Form ought to be struck out and in the alternative,

that the Main Claim should be heard together with Claim No. 2014-00645. On the 24th July, 2014,

the Court granted the extension of time sought by the Defendant and dismissed the Claimant’s

Notice of Application of the 15th July, 2014.

4. On the 15th September 2014, the Claimant filed submissions in reply to those of the Defendant

filed on the 18th July, 2014. By Court Order of the 7

th October, 2014, permission was granted

to Bridgeport Enterprises Limited and Esau Hosein, purchasers of the disputed parcel of

land, to join these proceedings as Interested Parties. Appearances were thereafter entered for

both Bridgeport Enterprises Limited and Esau Hosein on the 8th October, 2014.

5. An Ancillary Claim against the Claimant was then filed by the Interested Parties on the 1st

December, 2014. Therein, the Interested Parties/Ancillary Claimants seek a declaration that the

caveat filed by the Claimant in relation to the disputed lands is frivolous and that it was filed

without reasonable cause, an order that the said caveat be removed failing which the Registrar

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shall be authorised to facilitate the removal of same, an order that the Claimant/Ancillary

Defendant pay the sum of $275,008.00 and continuing in damages to the Ancillary Claimants

until the removal of the said caveat, an order that the Claimant/Ancillary Defendant pay to the

Ancillary Claimants the sum of $125,000 in reimbursement of the legal fees paid, interest and

costs. On the 30th December, 2014 the Claimant/Ancillary Defendant filed a Defence to the

Ancillary Claim and thereafter filed an Amended Defence to same on the 28th January, 2015, in

which a counterclaim was made.

6. On the 9th March, 2015, the Ancillary Claimants filed a Notice of Application for summary

judgment accompanied by an affidavit in support. On the 31st March 2015, the Claimant filed an

affidavit in response to the Ancillary Claimants’ Application for summary judgment, effectively

requesting that the Court deny the relief sought in the said Application. Thereafter, on the 20th

April, 2015 the Claimant/Ancillary Defendant filed written submissions in relation to the

summary judgment application. Attorneys for the Interested Parties/Ancillary Claimants and the

Claimant/Ancillary Defendants made oral submissions before this Court in relation to the

summary judgment application on the 28th April, 2015.

MAIN CLAIM

Claimant’s Case

7. The Claimant is the Legal Personal Representative (“LPR”) of the estate of Deonarine

Ramrattan also called Deonarine Ramjattan who died on the 8th July, 2004 (hereinafter called

“the Fourth Deceased”) by virtue of a Grant of Letters of Administration dated the 8th day of

April, 2005. The Defendant is the LPR of the estate of Satnarine Ramrattan also called

Satnarine Rupchand Ramrattan (hereinafter called “the Third Deceased”) by virtue of a Grant

of Probate dated the 26th day of November, 2004. The Defendant is also, by virtue of a chain of

representation of proven executors, the LPR of the estate of Ramrattan, also called Rattan

(hereinafter called “the First Deceased”) and in whose name a Grant of Probate dated the 7th

November 1975 was granted to Ramlochan Ramrattan (“the Second Deceased”) and the Third

Deceased.

8. In the will of the First Deceased, the Second Deceased, together with the Third Deceased, were

appointed the executors, but the Second Deceased died on the 18th May, 1984, leaving the Third

Deceased to continue the administration of the estate of the First Deceased. The Third Deceased

died on the 1st January, 2004. The Third Deceased died testate, without completing the

administration of the estate of the First Deceased.

9. The estate of the First Deceased consists, inter alia, of a freehold parcel of land situate at Munroe

Road, Cunupia. According to the Claimant, pursuant to the proven will of the First Deceased, the

said freehold parcel of land is to be assented equally among the eight children who survived the

First Deceased. These beneficiaries are Ramlochan Ramrattan, Ramdeo Ramrattan,

Satnarine Ramrattan, Deonarine Ramrattan, Samdaye Ramrattan, Basdaye Ramrattan,

Basdeo Ramrattan and Balkissoon Ramrattan.

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10. Around the 16th December 2005,the Defendant as part of her duty as the LPR of the estate of

Ramrattan also called Rattan, had already assented six of the seven parcels of land to the relevant

beneficiaries. They were sold to various persons by the beneficiaries of the estate of the First

Deceased.

11. On the 8th April, 2014 the Claimant’s Attorney acting on the Claimant’s instructions, gave written

Notice via pre-action protocol to the Defendant, informing her that she was required by law to

assent the Claimant’s entitlement to her without further delay. According to the Claimant, the said

letter has not been returned to the Claimant’s Attorney by TTPost and has remained

unacknowledged and unanswered.

12. The Claimant states that the said Deonarine Ramrattan also called Deonarine Ramjattan, their son

Inal Deonarine and Shama Deonarine, were registered cane farmers with Caroni (1975) Limited

during the period 1979 to 2003 and planted sugar cane on the seventh parcel of land, which was

the only remaining parcel of land in the estate of the First Deceased. She claims that the 7th parcel

of land is of sentimental value to her as she is over eighty and considers her 1/8 share in the 7th

parcel of land as the last legacy of her father-in-law, the First Deceased.

13. The Claimant contends that the Defendant has refused and/or neglected to assent the seventh

parcel of land to the beneficiaries and as a consequence of the Defendant’s refusal/negligence, the

Claimant has been deprived and continues to be deprived of her 1/8 share of the seventh parcel of

land. She contends that as far as she knows, there are no outstanding rates or taxes pertaining to

the seventh parcel of land, nor is it mortgaged or being held as collateral for a loan. She indicated

in her Statement of Case that she intended to register a caveat at the Registrar General’s

Department to preserve her interest in the seventh parcel of land pending determination of the

matter. A caveat dated the 27th June, 2014 was filed by the Claimant on the 25

th July, 2014.

The Defendant’s Position

14. The Defendant did not file a Defence to the Claim but rather, filed a Notice of Application on the

22nd

May, 2014 seeking to strike out the Claim and have it dismissed, there being no evidence in

support of same or alternatively, that there is no Statement of Case filed with the Claim Form and

it is in contravention of Part 8.2(1) (a), (b) and (c) of the Civil Proceedings Rules 1998

(“CPR”). In the alternative, the Defendant seeks to have this Claim heard together with Claim

No. CV2014-00645. The Defendant further seeks further directions as may be necessary and that

costs of this Application be costs in the cause.

15. The Defendant contends that the Claimant’s Statement of Case as filed in effect is not a Statement

of Case but rather, it is drafted as an affidavit with the words “make oath and say as follows”.

She contends that the first paragraph follows as “I am the Legal Personal Representative of...”

However, this “affidavit” is not sworn before a Commissioner of Affidavits as is mandatory

and required by Part 31.5 of the CPR. She contends that, in short, there is no admissible

evidence filed in support of the Fixed Date Claim Form and therefore the Fixed Date Claim Form

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ought to be struck out. She contends that if it is a Statement of Case, it is irregular and ought to be

amended before the Defendant can file a Defence, if necessary.

16. According to the Defendant, by a Fixed Date Claim Form filed on the 21st February, 2014, she

commenced Claim Number 2014-00645 (hereinafter referred to as “the First Claim”). She says

that she swore to an affidavit filed in the First Claim on the 21st February, 2014, an affidavit that

consisted of 34 exhibits annexed. She has exhibited same. The Defendant further states that in

response, the Defendants in the First Claim filed an affidavit on the 9th April, 2014 and a copy of

same has been produced and exhibited.

17. The Defendant contends that the First Claim and this Claim relate to the same subject matter- the

same parcel of land described in the Claim Form in this Claim (the Main Claim). She says that

the Claimant and the Defendants in the First Claim are also beneficially entitled to a 1/8 share and

interest in the said parcel of land. The said parcel of land forms part of the assets of the estate of

Ramrattan, and the Defendants in the First Claim and the Claimant’s father, Deonarine Ramrattan

also called Deonarine Ramjattan in this Claim are/were siblings being the children of the said

Ramrattan also called Rattan. In her Notice of Application of the 22nd

May, 2014, the Defendant

indicated that the Defendants in the First Claim have each filed a caveat prohibiting the Claimant

in the First Claim from selling the said parcel of land in the administration of the Estate of

Ramrattan also called Rattan. At the time, she indicated that the Claimant in the First Claim

(herself the Defendant in this Main Claim) had entered into a binding agreement to sell the said

parcel of land to one Esau Hosein for the price of nine million dollars.

18. The Defendant says that the First Claim was commenced against the Defendants to show cause

why the caveats filed by them should not be removed. She contends that the claims of the

Claimant in this Claim cannot be met or come to fruition or be determined until the First Claim is

heard and determined.

19. According to the Defendant, the First Claim came up for hearing before the Hon. Mr. Justice

Guy Hannays on the 14th April, 2014 and was adjourned to the 2

nd June, 2014. She contends that

in all the circumstances and to achieve the overriding objective of the Civil Proceedings Rules

(“CPR”) as stated at Part 1.1 (1) and (2) thereof it is in the interest of all parties concerned that

this Claim be heard together with the First Claim.

The Responses

20. Attorney for the Claimant, authorized by the Claimant, filed an affidavit in response to the

Defendant’s affidavit supporting the Notice of Application of the 22nd

May, 2014. The Claimant

contends that the Defendant in this Main Claim is the same Defendant in the Administration

Claim No. H.C.A. 178 of 2005. She contends that on the 4th December, 2006, the Court gave

specific directions to the Defendant for general administration (directions for the administration

of the estate of the deceased under the direction of the Court), thereby prohibiting the said

Defendant, in her capacity as Legal Personal Representative of the estate of Ramrattan also called

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Rattan, from exercising any power of sale of the parcel of lands described on the Certificate of

Title in Volume 4948 Folio 83 (the said disputed parcel of land) without first obtaining the

permission of the Court or the Consent of all the persons beneficially entitled to the said parcel of

land.

21. The Claimant contends that the Defendant has not disclosed to her any evidence of having

obtained the permission of the Court and/or the consent of all the persons beneficially entitled to

the said parcel of land prior to the making of any agreement for the sale thereof. Additionally, the

Claimant contends that the Defendant has not disclosed any evidence from the Registrar of the

Supreme Court that the said Administration Claim No. H.C.A. 178 of 2005 now stands dismissed

pursuant to any Order or rule of the Supreme Court of Judicature. She contends that the

Defendant’s said affidavit is “deliberately void” of any admission that the administration of the

said estate is under the supervision of the Court.

22. According to the Claimant, the “ingredients” of the Defendant’s Claim No. CV2014-00645 are in

breach of the said directions given by the Court on the 4th December, 2006. She further contends

that the claim CV 2014-00645 and the Main Claim are not related in any way as she is not a party

to the previous proceedings. She states that the basis of Claim No. CV2014-00645 is for the

removal of caveats whereas the basis of the present claim is to have the property assented, which

has been long outstanding pursuant to a will made by the said deceased.

23. For her part, the Defendant categorically denies that any such orders/directions were made or

given by the Court on the 4th December, 2006 or at all on any other date in respect of H.C.A. No.

178 of 2005. She stated that one of her attorneys perused the Court’s entire file and the “fly-

sheet” thereof and he has informed her that no such order or directions was/were made by the

Court. Further, the Defendant claims that then Attorney for the Claimant in this matter has also

admitted to her Attorneys that no such orders or directions were made. She challenged the

Claimant to produce such order or directions which she contends were made by the Court. She

claims further that she was also informed by Mr. Manwah, her attorney as Defendant in H.C.A.

178 of 2005 that no such order or directions were ever made as stated in the affidavit of the

Claimant’s attorney.

24. The Defendant consequently contends that certain paragraphs of the said affidavit are

presumptuous, otiose and irrelevant and made with mala fides to mislead and deceive the Court.

PRELIMINARY ISSUES TO BE DETERMINED IN THE MAIN CLAIM

25. From the aforementioned the following are the preliminary issues which fall to be determined:

(a) Whether the Claimant’s Fixed Date Claim Form ought to be dismissed due to lack of

supporting evidence?

(b) Whether this Claim CV 2014- 01431 ought to be heard together with CV 2014-00645?

(c) Whether the Claimant breached directions given by the Court in H.C.A. 178 of 2005

and if so, whether that breach affects this matter?

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26. I shall now address these issues in turn.

(a) Whether the Claimant’s fixed Date Claim Form ought to be dismissed due to lack of

supporting evidence?

27. The overriding objective of the CPR, as stated in Rule 1.1., is to enable the Court to deal with

matters justly. Accordingly, in construing the Rules set out thereafter in the CPR, regard must be

had to this overriding objective. Rule 26.8 of the CPR sets out the general powers of the Court to

rectify matters where there has been an error of procedure. An error of procedure does not

invalidate any step taken in the proceedings, unless the Court orders so1. Where there has been an

error of procedure, the Court may make an order to put matters right2. Further, the CPR provides

that the Court may make such an order on or without the application by a party3.

28. As was indicated above, the Defendant contends that the Claimant’s Statement of Case as filed, in

effect, is not a Statement of Case but rather, the document appears to be drafted as an unsworn

affidavit. He states that the Claim ought to be struck out and dismissed, there being no evidence

in support of same. He further contends that if indeed the document in question is intended to be

the Statement of Case, it is irregular and necessitates amendment. In response the Claimant

highlights that the document contains a Certificate of Truth which the Defendant has ignored.

29. I note that despite containing the words “make oath and say as follows” the document in

question is titled “Statement of Case”. Indeed, it contains a Certificate of Truth towards the end

stating that “I hereby certify that all the facts set out in my Statement of Case (Emphasis

mine) are true to the best of my knowledge, information and belief, and that I am entitled to the

relief claimed.” Rule 8.8 of the CPR requires a Certificate of Truth to be filed on the Claim

Form or Statement of Case. There is no requirement that such be done in an affidavit, yet same is

present in the disputed document. Further, there is a paragraph beneath the Certificate of Truth

stating that “this Statement of Case [Emphasis mine] was filed ....”. There is nothing suggesting

that there was ever any intention to have the document sworn to as an affidavit despite the

opening words. Rather, taking all of the aforementioned into account, I am of the view that the

disputed document was intended to be a Statement of Case but for the unfortunate error of

including the words “make oath...”

30. For completeness sake, I am well aware that Rule 20.1 of the CPR purports to address

“changes” to the Statement of Case. However, I am of the view that that Rule was intended to

address changes that are substantive in nature, not merely procedural as is the case here and as

such, I am not of the view that that Rule operates to block Rule 26.8 which applies in the instant

case, as there was merely a procedural error. Accordingly, I am of the view that pursuant to Rule

26.8, the Claimant ought to be permitted to amend her Statement of case to remove the offending

1 Rule 26.8(2) of the CPR



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words. Flowing from this, I find that the Defendant’s attempt to have the Claimant’s Statement of

Case and Claim Form dismissed for lack of supporting evidence does not succeed.

(b) Whether this Claim CV 2014- 01431 ought to be heard together with CV 2014-00645?

31. In No. S-677 of 2002 and No. S-596 of 2002, two consolidated actions, Kokaram J. in setting out

the facts of the actions stated that:

“Upon HCA 596 of 2002 coming on for hearing before a Cause List Judge...this matter was

formally consolidated with HCA 677 of 2002 the latter being ordered to be tried first. No doubt

the learned Judge saw the wisdom in consolidating these matters which raised identical issues

of law and fact for resolution. Indeed a determination of the Plantiffs’ claim HCA 677 of 2002

will resolve the issues raised in HCA 592 of 2002 in determining whether the second named

Defendant herein is entitled to possession of the subject property and whether the Plantiffs

must deliver up vacant possession of same.”

32. The Defendant contends that the First Claim CV2014-00645 and this Main Claim relate to the

same parcel of land. The Defendant further says that the First Claim was commenced against the

Defendants to show cause why the caveats filed by them should not be removed. She claims that

the Claims of the Claimant cannot be met or come to fruition or be determined until the First

Claim is heard and determined.

33. On the 4th August 2014, the caveators in the First Claim simultaneously filed a Notice of

Withdrawal in the Registrar General’s office, withdrawing the caveats in question. Attorney for

the Claimant in this Main Claim contends that the point is now moot, the disputed caveats of the

First Claim no longer existing and thereby no longer posing a hindrance. However, having

perused the copy of the First Claim attached as “J.S.35” to the Defendant’s affidavit of the 22nd

May, 2014, it appears that the relief sought therein was not limited to the existence of the caveats

and requiring the defendants therein to show cause why the caveats should not be removed.

34. Relief No. 4 sought in the Claim Form filed on the 21st February,2014 states as follows:

“A Declaration and or Order that the Claimant be and is at liberty to sell the said lands to

one Esau Hosein of Moore Trace, Pasea Village Tunapuna, at and for the price or sum of

NINE MILLION DOLLARS ($9,000,000.00) pursuant to an Agreement in writing made

and dated the 29th

November, 2013, and made between the Claimant and the said Esau

Hosein, and a Supplemental Agreement in writing made and dated the 20th

February, 2014

and made between the Claimant and the said Esau Hosein.”

35. Given this relief sought, it is clear that resolution of this issue of the LPR of the Estate of

Ramrattan also known as Rattan’s liberty to sell the lands to a purchaser must be resolved as it

affects the relief sought by the Claimant in the present case as she is seeking to have a portion of

that same parcel of land assented to her. While the relief sought in relation to the caveats has been

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extinguished by their removal, the issue of the declaration or order pertaining to the right to sell

the property still exists. In the circumstances, I am of the view that CV 2014-00645 ought to be

consolidated with this claim CV 2014-01431.

36. I note that in stating what the First Claim was commenced for, the Defendant expressly referred

to the caveats but not to the relief sought which was to the effect that a declaration or order

stating that the Claimant be and is at liberty to sell the disputed lands should be granted. The

Defendant did not indicate that there was any Notice of Withdrawal filed by her in the First Claim

and so the matter thus subsists. The Court has not yet ruled on that Declaration sought. It is noted

that despite that Order sought by the Defendant herself and the fact that the First Claim has not

been resolved by the Court, the Memorandum of Transfer was executed by the Defendant on the

4th August, 2014 and registered on the 7

th August 2014.

(c) Whether the Claimant breached directions given by the Court in H.C.A. 178 of 2005

and if so, whether that breach affects this matter?

37. The Claimant contends that by selling the disputed lands, the Defendant who is a party to

H.C.A.178 of 2005 breached the directions given by the Court therein whereby she was

prohibited, in her capacity as LPR of the estate of Ramrattan, also known as Rattan, from

exercising any power of sale of the disputed land without first obtaining the permission of the

Court or consent of all persons beneficially entitled to the said parcel of land. For her part, the

Defendant denies that any such directions were given and claims to have been told by various

attorneys involved in the matter that such was indeed not the case. I note, however, that the

Defendant did not file affidavits from the said attorneys to corroborate what they allegedly told

her. The Defendant put the Claimant to proof that such directions were in fact given by the Court

to which the Claimant responded that documents filed by the Defendant herself in CV 2014-

00645 speak to such directions being given.

38. Indeed, in this matter, the affidavit of the Defendant filed on the 22nd

May, 2014 refers at

paragraph 3 to an affidavit which she filed in the First Claim on the 21st February, 2014. She

exhibits what she says is, and I quote, “a true copy of this affidavit with thirty- four exhibits

thereto annexed” at “J.S.36”. The said exhibited affidavit states that:

“By letter dated the 28th January, 2014 from my Attorney-at-Law Mr. Anthony Manwah informed

me of the status of, inter alia, the said High Court Action as being deemed dismissed with a

history and Chronology of the dates of the hearing of the said High Court Action with a summary

of what took place in Court on these dates. True copies of this letter and the summary of the

High Court hearings are now produced and shown to me and exhibited hereto in a bundle and

marked “J.S.7”. [Emphasis mine]

39. Having perused the exhibit J.S.7” , the entry for the 4th December 2006 states at paragraph 3 as

follows:

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“Court directs that there be no dealings with property comprising 6 acres situate at Monroe

Road, Bejucal without the consent of the beneficiaries or order of the court. Beneficiaries to

liaise with Mr. Manwah with respect to further application.” [Emphasis mine]

40. Accordingly, the documents exhibited by the Defendant herself appear to controvert her claim

that the Court never gave any directions prohibiting dealing with the property. However, the

original Court file for H.C.A. 178 of 2005 does in fact contain a copy of a letter dated the 31st

January 2014 from Mr. Manwah to the Registrar of the Court indicating that there is no record as

to what occurred in the matter on the adjourned date of the 26th November 2007. He goes on to

indicate that according to the Old Rules, the matter would have been dismissed due to the passage

of time, as more than 2 years had lapsed since the last proceeding and since the last step of the

Plaintiff. He accordingly sought notification that the matter had been dismissed under the relevant

Rule of the Supreme Court.

41. In any event, Order 3 Rule 6A(1) of the Rules of the Supreme Court 1975 provides as

follows:

6A(1) Where in any cause or matter which has not been set down on the general list for trial

and in which no judgment has yet been entered:

(a) No step has been taken by the party instituting it, whether it be by way of claim or

counterclaim, for a period of more than two years, or

(b) A period of more than two years has elapsed since the determination of the last proceeding

in such cause or matter,

whichever shall be later, the said cause or matter shall stand dismissed and the other party

shall be entitled to his costs occasioned by the claim or counterclaim, as the case may be,

incurred up to the date of the last step taken in the cause or matter or the date of determination

of the last proceedings, whichever shall be the later.

42. From the Court’s records, it appears that the matter last came up in 2007 and no step has been

taken since then. At the date of the last proceeding in 2007, the matter had not been set down for

trial. Accordingly, the matter would have been caught by the provisions of Rule 6A(1) and

therefore would have been automatically dismissed due to inactivity for more than the stipulated

period of time.

43. The matter having been automatically dismissed, any directions given therein would, from the

date of such dismissal, have become inoperable and therefore not applicable.

THE ANCILLARY CLAIM

44. The Defendant having been unsuccessful on his Application to have the Main Claim struck out,

the usual course would be for the Court to give directions for the filing of the Defence. I say the

“usual course” because the circumstances of this particular case may require deviation from same.

This I shall return to later on in this judgment. I turn now to a consideration of the Ancillary

Claim. The Ancillary Claimants are the purchasers of the disputed parcel of land. By this action,

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they claim against the Claimant in the Main Claim (now the Ancillary Defendant) the following

forms of relief:

a. A Declaration that the Caveat filed on the 25th

July, 2014 by or on behalf of

Soobartar Deonarine also called Soobharta Deonarine in relation to the lands

described in the Certificate of Title in Volume 4948 Folio 83 now standing in the

name of Ramrattan is frivolous and filed without reasonable cause.

b. An Order that the said Caveat be removed within 3 days of the Order in default of

which the Registrar of the Supreme Court is authorised to sign the required Notice

of Withdrawal of Caveat to facilitate the removal of the Caveat.

c. An Order that the Claimant/Ancillary Defendant pay to the Ancillary Claimants the

sum of $275,008.00 in damages as at 1st December, 2014 and continuing at the rate

of $2359.20 per day until the removal of the said Caveat.

d. An Order that the Claimant/Ancillary Defendant pay to the Ancillary Claimants the

sum of $125,000 in reimbursement of the legal fees paid.

e. Interest on the said sums.

f. Costs.

The Ancillary Claimants’ Case

45. According to the Ancillary Claimants, by a written Agreement for Sale dated 29th November,

2013 (“the Agreement for Sale”) made between the Defendant in Claim No. CV2014-01431

(“the Principal Claim”) as Vendor and the First Named Ancillary Claimant, the Defendant to the

Principal Claim agreed to sell the lands described in Certificate of Title registered in Volume

4948 Folio 83 now standing in the name of Ramrattan which are the subject of the Principal

Claim to the First Named Ancillary Claimant at a price of Nine Million Dollars. The Second

Ancillary Claimant is the nominee of the First Ancillary Claimant to the benefit of the said lands

under the Agreement for Sale.

46. The Ancillary Claimants state that at all material times, the Defendant to the Principal Claim was,

by virtue of the chain of representation, the Legal Personal Representative of the Estate of

Ramrattan having obtained probate of the Estate of Satnarine Ramrattan who was the last

surviving executor of the Estate of Ramrattan but who died on the 1st January, 2004 without

having fully administered the said Estate.

47. According to the Ancillary Claimants, prior to the Agreement for Sale, there was in existence a

dispute between three of the beneficiaries to the Will of Ramrattan (namely Balkissoon

Ramrattan, Basdai Vidyarti and Samdai Rampersad) and the Defendant to the Principal Claim

which formed the basis of the filing of caveats by the said three beneficiaries (“hereinafter

referred to as “the original caveats”). One of the original caveats was lodged by Balkissoon

Ramrattan on the 12th December, 2005 and the other was lodged by the said three beneficiaries on

the 12th April, 2012.

48. The Ancillary Claimants contend that the original caveats had been revealed to the Ancillary

Claimants from a title search conducted on their behalf on the 28th October, 2013 prior to entering

into the Agreement for Sale and the Defendant to the Principal Claim agreed to have them

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removed to allow the completion of the sale pursuant to the Agreement for Sale. The original

caveats were removed on the 4th August, 2014 in order to allow completion of the sale of the

lands to the Ancillary Claimants.

49. The Ancillary Claimants contend that prior to completion of the purchase of the said lands by the

Ancillary Claimants their Attorneys-at-law conducted an updated search of the said lands at the

Registrar General’s Office on the 31st July, 2014. The search disclosed that there were no further

dealings on record since the last search conducted on the 28th October, 2013.

50. Accordingly, the Ancillary Claimants completed the Agreement for Sale by making full payment

of the purchase price which had been increased to TEN MILLION DOLLARS ($10,000,000) to

the Defendant in the Principal Claim as the Legal Personal Representative of the estate of

Ramrattan and the Memorandum of Transfer was executed by the Defendant in the Principal

Claim on the 4th August, 2014. The Second Named Ancillary Defendant paid stamp duty on the

Memorandum of Transfer in the sum of $700,000 on the 6th August, 2014 and it was registered on

the 7th August, 2014.

51. The Ancillary Claimants say that subsequent to the payment of the purchase price and the

execution of the Memorandum of Transfer, the Ancillary Claimants were informed that a caveat

had been lodged by the Claimant /Ancillary Defendant on the 25th July, 2014, 11 days before the

execution of the Memorandum of Transfer, without notice to the Purchaser as the updated title

search did not reveal the existence of the caveat. The Ancillary Claimants indicated their

intention to rely on its express terms.

52. According to the Ancillary Claimants, in order to complete the Agreement for Sale and acting on

the knowledge of the facts disclosed by the updated Title Search without notice of any filed

caveat, the Second Named Ancillary Claimant entered into mortgage arrangements with Republic

Bank Limited and specifically agreed to a bridging finance arrangement with the said Republic

Bank limited which binds it to make interest payments to the Bank until its title is endorsed on the

Certificate of Title for the said lands that are the subject of the Agreement for Sale. The said

interest payments accrue at the daily rate of $2,359.20 payable at the end of every month that

perfection of the title by endorsement on the Certificate of Title remains outstanding.

53. It is the Ancillary Claimants’ case that the caveat filed by the Claimant/Ancillary Defendant does

not disclose a claim and is therefore frivolous and lodged without reasonable cause. They contend

that the pendency of the caveat is preventing the endorsement of the Memorandum of Transfer on

the Certificate of Title. The Ancillary Claimants claim that despite several requests and meetings,

the Claimant/Ancillary Defendant has refused to remove the caveat which will allow the

endorsement of the Memorandum of Transfer on the Certificate of Title and also the cessation of

the bridging finance facility.

54. It is the Ancillary Claimants’ case that the caveat and the failure of the Claimant/Ancillary

Defendant to remove it has caused the Second Ancillary Claimant damage in the sum of $275,000

as at the 1st December 2014 which continues to accumulate monthly by virtue of its bridging

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financial obligations. According to the Ancillary Claimants, the Second Ancillary Claimant

continues to suffer loss and damage at the rate of $2,359.20 per day.

55. The Ancillary Defendants contend that the caveat and the failure of the Claimant/Ancillary

Defendant to remove it has also caused the Ancillary Claimants to engage in this action to seek

the removal of the caveat in circumstances where there was no reasonable cause to have lodged

the caveat. They say that they were required to retain the services of senior Advocate Attorney

and Instructing Attorney and thereby incurred loss in the payment of legal fees in the sum of

$125,000.

The Ancillary Defendant’s Defence to the Ancillary Claim and Counterclaim

56. The Ancillary Defendant filed her Amended Defence to the Ancillary Claim on the 28th January,

2015. It is the Ancillary Defendant’s case that the Statement of Case of the Ancillary Claimant

discloses no or no reasonable cause of action.

57. Without prejudice to that plea, the Ancillary Defendant maintains that at all material times, she

was totally ignorant of and was never involved in any agreement, discussion and/or exchange of

correspondence between the Defendant and the Ancillary Claimant. She contends that she was

never a party or invitee to the matter or matters pertaining to the sale of any land by the

Defendant to the Ancillary Claimants.

58. The Ancillary Defendant contends that the Ancillary Claimant’s predicament is not her liability.

She contends that she has a legal right to seek and protect her entitlement emanating from the

estate of Ramrattan also called Rattan and should not be unilaterally deprived thereof by the

Defendant to satisfy the Defendant’s alleged poverty.

59. The Ancillary Defendant states that the Ancillary Claimant, having the services of an “active”

Attorney-at-Law knew or ought to have known that the subject parcel of land was surrounded by

controversy and yet he persevered with the Agreement with “open eyes” and expediency. The

Ancillary Defendant contends that the Ancillary Claimant treated with the Defendant as though

the subject parcel of land is the personal and private property of the Defendant, thereby failing to

exercise due diligence in the spending of large sums of money. The Ancillary Defendant

contends that had the Attorneys-at-law for the Ancillary Claimant checked carefully in the

relevant books at the Registrar General’s Department, they would have certainly found the

Ancillary Defendant’s Caveat recorded therein. The Ancillary Defendant further contends that

searches for caveats at the Registrar General’s Department are not limited to endorsements on

Certificates of Title/Crown Grants/State Grants.

60. The Ancillary Defendant denies that the caveat does not disclose a claim and is therefore

frivolous and was lodged without reasonable cause. She contends that her duty ends at the counter

in the Registrar General’s Department. She says that the Registrar General’s staff received the

caveat, together with a filed copy of the Claim Form and Statement of Case filed in CV2014-

01431. She says that the caveat was directed at the Defendant and no other person.

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61. The Ancillary Defendant further states that there was only one meeting/discussion pertaining to

the sale of the subject parcel of land and this was a Court ordered meeting. She denies that her

caveat and her failure to remove it has caused the loss alleged and maintains that the Ancillary

Claimant’s lack of diligence is responsible for his predicament and that there is no liability to the

Claimant/Ancillary Defendant. She says that the Ancillary Claimant lodged a caveat against her,

the Ancillary Defendant. She annexed and marked same as “A” to her Amended Defence of the

28th January, 2015.

62. Further, the Ancillary Defendant claims that the Ancillary Claimant’s Attorney-at-Law was privy

to information detailed in a letter dated the 9th January, 2014 and should have fully investigated

this information to ensure that there were no “outstanding issues” in or out of court prior to the

signing of any agreement for sale.

63. The Ancillary Defendant contends that the Ancillary Claimant was anxious to exploit the

Defendant’s greed and the Defendant was “thirsty” for the Ancillary Claimant’s money. She says

that in the circumstances, no one cared about the Claimant/Ancillary Defendant and claims that

several Attorneys-at-law and agents came on board, all eager to profit from the “fire-sale”.

64. According to the Ancillary Defendant, the Ancillary Claimant rushed the Defendant to purchase

the land for seven million dollars ($7,000,000) and promptly paid a deposit of $700,000 by

cheque. She says that the Ancillary Claimant waited quietly for about two years and thereafter

accepted a refund of the $700,000 plus interest thereon.

65. Further, the Ancillary Defendant alleges that the Ancillary Claimant was determined to purchase

the land and raise the purchase price from seven million to eight million and finally to nine

million. She contends that all this time, the Ancillary Claimant, his Attorneys-at-Law and other

interested persons knew of the pending controversy surrounding the subject parcel of land.

Additionally, the Ancillary Claimant took the time and energy to copy the entire file CV2014-

00645 and annexed same to his Application filed herein. She alleges that for reasons unknown to

her, the documents annexed and marked “D” and “E” respectively, were not put into evidence by

the Ancillary Claimant.

66. In support of the Ancillary Defendant’s contention that the Ancillary Claimant ignored the “red

flags” raised against the Defendant in the Main Claim pertaining to her “modus operandi” by

several persons, she annexed various exhibits. Further, she contends that the said Defendant

solicited the consent of various persons (some of whom have no right of inheritance from the

estate of Ramrattan also called Rattan) in an attempt to comply with the direction given by

Madame Justice Tiwary in the Administration Claim HCA No. 178 of 2005.

The Ancillary Claimants’ Application for Summary Judgment

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67. On the 9th March, 2015, the Ancillary Claimants filed a Notice of Application seeking summary

judgment under Part 15 of the Civil Proceedings Rules 1998 (as amended) (“CPR”) against

the Claimant/Ancillary Defendant on their Ancillary Claim filed on the 1st December 2014, the

Amended Defence not disclosing a reasonable prospect of success. In the said Notice of

Application, the Ancillary Claimants also sought assessed costs.

68. In setting out the grounds of their Application, the Ancillary Claimants claim that at all material

times, the Claimant/Ancillary Defendant was entitled to a share of the residue of the estate of

Ramrattan, subject to the payment of debts. They state that the contract for the sale of the lands

set out in Volume 4948 Folio 83 (“the said lands”) between the Defendant (as the Legal Personal

Representative of the Deceased and owner of the said lands) and the Ancillary Claimants was

effective to convey an interest in the said lands to the Ancillary Claimants. Pursuant to the said

contract for sale, the Defendant, in her capacity as Legal Personal Representative of the Estate

was paid the full purchase price which is undisputed.

69. The Defendant executed a Memorandum of Transfer on the 4th August, 2014 transferring title in

the said lands to the Ancillary Claimant upon receipt of the purchase price. The Ancillary

Claimants say that the Claimant/Ancillary Defendant relies on and pleads in Defence to the

Ancillary Claim a caveat that was filed by way of Notice to the Ancillary Claimants. They

contend, however, that the said caveat was ineffective to disclose an interest or encumbrance on

the land. Further, the Ancillary Claimants contend that the Claimant/Ancillary Defendant has

filed an Amended Defence to the Ancillary Claim that discloses no defence to the Ancillary

Claim. The Ancillary Claimants contend that the Claimant/Ancillary Defendant has no realistic

prospect of success on her defence to the Ancillary Claim and there is no other reason why the

Claim should await trial.

ISSUES

70. Based on the foregoing, it is necessary for the Court to first determine whether the Ancillary

Claimants are entitled to succeed on their Application for Summary Judgment.

Whether the Ancillary Claimants ought to be granted summary judgment against the

Ancillary Defendant?

71. Part 15 of the CPR deals with summary judgment. Rule 15.2(b) provides that the Court may

give summary judgment on the whole or part of a claim or on a particular issue if it considers that

on an application by the claimant, the defendant has no realistic prospect of success on his

defence to the claim, part of the claim or issue.

72. Accordingly, the issue to be resolved is whether the ancillary defendant has no realistic prospect

of success on her defence to the claim, part of the claim, or issue.

73. In the Ancillary Claim, the Ancillary Claimants claim that the caveat filed by the

Claimant/Ancillary Defendant does not disclose a claim and is therefore frivolous and lodged

without reasonable cause. They contend that the pendency of the caveat is preventing the

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endorsement of the Memorandum of Transfer on the Certificate of Title. The Ancillary Claimants

further claim that the caveat and the failure of the Claimant/Ancillary Defendant to remove it

have caused the Second Named Ancillary Claimant damage and loss which continues to

accumulate.

74. The Ancillary Defendant denies the aforementioned claims. She claims that her duty ends at the

counter in the Registrar General’s Department and that the staff there received the caveat together

and that same was directed at the Defendant and no other person. The Ancillary Defendant denies

that the caveat and her failure to remove same has caused the damage and loss alleged, claiming

that the Ancillary Claimant’s lack of diligence is responsible for his predicament and that there is

no liability to the Claimant/Ancillary Defendant. She claims that the caveat ought to have been

discovered by the Ancillary Claimants.

75. Thus, the question is whether the Ancillary Defendant has a realistic prospect of success insofar

as her Defence claims that the caveat is not frivolous and was not lodged without reasonable

cause and insofar as her Defence alleges that the caveat and her failure to remove it was not

responsible for the damage/loss suffered.

76. In paragraph 3 of the Amended Defence, the Ancillary Defendant claims that she “has a legal

right to seek and protect her entitlement emanating from the estate of Ramrattan also called

Rattan and should not be unilaterally deprived thereof by the Defendant to satisfy the

Defendant’s alleged poverty”. From the remainder of her Defence, where she makes reference to

the caveat filed by her and that same ought to have been properly searched for, it is clear that she

is relying on the filed caveat as the means of protecting “her entitlement emanating from the

estate of Ramrattan”. This is confirmed when paragraph 3 of the Amended Defence to the

Ancillary Claim, is, as the Ancillary Claimants contend, read in conjunction with paragraph 14 of

the original Statement of Case filed on the 25th April, 2014 wherein the Claimant/Ancillary

Defendant states that:

“...the Claimant intends to register a caveat at the Registrar General’s Department to preserve

her interest in the seventh parcel pending determination of this matter.”

77. Accordingly, it is the caveat filed by the Claimant/Ancillary Defendant which rests as the

backbone of her Defence. By extension, its validity has direct bearing on the thrust of her defence

which denies that the caveat was frivolous or lodged without reasonable cause and that the said

caveat and her failure to remove same has caused the damage and loss alleged by the Ancillary

Claimants. It is this presumed validity of same that she is relying upon to state that the Ancillary

Claimants ought to have discovered same and it follows, that it operates as an effective bar to

dealing with the disputed land.

78. Part XIII of the Real Property Act, Chap. 56:02 concerns caveats against dealing with land

under the Act. Section 125 addresses caveats by beneficiaries and others. It provides as follows:

“Any beneficiary or other person claiming any estate or interest in land under the provisions of

this Act...may lodge a caveat with the Registrar General...forbidding the registration of any

person as transferee or proprietor of and of any instrument affecting such estate or

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interest...Every such caveat shall... contain a sufficient description to identify the land and the

estate or interest therein claimed by the caveator...”

79. Section 128 deals with a frivolous caveat. It provides that:

“Any person lodging any caveat with the Registrar General without reasonable cause shall be

liable to make to any person who may have sustained damage thereby such compensation as

may be just, and such compensation shall be recoverable in an action at law by the person who

has sustained damage from the person who lodged the caveat.”

80. Accordingly, from the above, it is clear that in order to file a caveat forbidding registration, the

caveator must be a beneficiary or other person claiming any estate or interest in land, as

Attorneys for the Ancillary Claimants quite rightly submit. Further, should the person lodging the

caveat do so without reasonable cause, he or she may be liable to compensate the person who

sustains damage as a result.

81. I now turn to consider the nature of the caveat filed by the Ancillary Defendant/Claimant. A copy

of the caveat in question was exhibited to the Ancillary Claimants’ submissions of the 20th April,

2015. The caveat is dated the 27th June 2014, and states that Soobartar Deonarine also known as

Soobharta Deonarine claims “an interest as creditor in Claim No. CV2014-1079” in the parcel of

land in question. The status of the Ancillary Defendant in claiming an interest in the disputed

parcel of land, as stated by her in the caveat, is as a creditor.

82. It is to be borne in mind that the Ancillary Defendant is the legal personal representative of the

estate of Ramrattan also known as Rattan by virtue of a chain of proven executors. Having

declared the nature of her interest to be that of creditor, the issue which accordingly falls to be

resolved is whether the Ancillary Defendant, as a creditor, may claim an interest in an estate after

the executor has obtained a grant of probate from the High Court.

83. Section 34 of the Wills and Probate Act, Chap. 9:03 sets out the circumstances in which a

creditor may apply for administration. It provides that:

“On producing an affidavit stating who is the person who would be entitled to probate or

administration, and showing that such a person has renounced the right to the same or

neglected or refused to apply for the same after citation, and that the claim of the applicant is

unsatisfied, but not otherwise, it shall be lawful for any person proving himself to be-

(a) a creditor of the testator or intestate: or

(b) a creditor for funeral expenses,

to apply for administration: Provided that in any case, the application shall set out and the

applicant shall swear to the alleged debt and the particulars thereof with the same particularity

as is required for the special endorsement of a writ of summons in an action.”

84. Thus, section 34 limits the circumstances where a creditor may apply for administration- he may

only do so if the person entitled to the Grant has renounced the right to the grant or neglected or

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refused to apply for same after citation. He may not make a claim to an interest in land or an

interest in an estate by an application for the issuance of a grant after the issuance of a Grant of

Probate.

85. The Ancillary Defendant/Claimant has not advanced any evidence or claim to suggest that the

person entitled to probate renounced same or neglected or refused to apply for same after citation,

which would in turn clear the way for her to apply as creditor. In fact, it is the Ancillary

Defendant who, in her Statement of Case in the Main Claim, states that the Defendant is by virtue

of the chain of representation of proven executors, the Legal Personal Representative of the estate

of Ramrattan called Rattan.4 As such, it was not open to her to claim an interest in the land as

creditor.

86. In Guardian Trust and Executors Co. of New Zealand Ltd. v. Hall [1938] NZLR 10205 it

was stated that:

“A caveat is the creature of statute and may be lodged only by a person upon whom a right to

lodge has been conferred by statute.”

In claiming an interest as a creditor, statute limits the circumstances in which this may be done

and the instant case falls outside of those circumstances.

87. In any event, the Ancillary Defendant never alleged in her pleading that the Estate of Ramrattan

owes her money. Moreover, I am of the view that an examination of the Ancillary Defendant’s

pleadings does not reveal any information that would support the contention as alleged in the

caveat that she is seeking an interest as creditor. There is no reference to any outstanding debts

owed to her. Counsel for the Ancillary Claimants argued that even if the Claimant/Ancillary

Defendant did make such a claim, a debt is not an interest in land or an interest in an estate that

will allow for registration of a caveat. A creditor may only file a caveat in accordance with

section 125 of the Real Property Act Chap. 56:02 if the claim to the debt is in relation to a lease,

mortgage, encumbrance or settlement under any registered instrument or by devolution of law or

otherwise. However, the Defence is focused on her allegation that the Ancillary Claimant ought

to have known of the existence of the caveat and that any liability resulting from such lack of

knowledge does not fall to her. Rather cyclically, much reliance is placed on the very caveat, the

true nature of which, as revealed from its contents, fails to find any evidentiary support from her

pleadings and the uncontroverted facts- that there was no renunciation by the executor or so forth

to facilitate a creditor claiming an interest through administration.

88. The test of liability under section 128 of the Real Property Act Chap. 56:02 is the absence of

reasonable cause for the section stipulates that “any person lodging any caveat with the

Registrar General without reasonable cause shall be liable...” In Couchman v. Taylor (1996)

NZ ConvC 192, the Court of Appeal highlighted that the exercise of power to lodge a caveat

against dealings given by section 1376 of the Land Transfer Act 1952 is not conditional on the

4 Paragraph 3 of the Statement of Case filed on the 25

th April, 2014

5 At 1025 (CA) per Callan J. for the Court

6 This section is similarly worded to section 128 of the Real Property Act of Trinidad and Tobago

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caveator actually having the entitlement or interest. Rather the caveator must claim such an

entitlement or interest. In the Australian case of Bedford Properties Pty Ltd. V. Surgo Pty Ltd.

[1981] 1 NSWLR 106 Wooten J stated as follows:

“I think the foundation for reasonable cause must be, not the actual possession of a caveatable

interest, but an honest belief based on reasonable grounds that the caveator has such an

interest. That of course may not be enough”.

89. Based on the evidence outlined above, I am of the view that the Ancillary Defendant/Claimant

did not have an honest belief based on reasonable grounds that she had such an interest as

creditor. Her pleadings are bare of any mention of any sort of debt owed by the deceased.

90. Accordingly, the caveat- the very document on which her various arguments rest- is frivolous.

The pleadings being bare of anything to support the filing of the caveat as creditor, there can be

no realistic prospect of success in her Defence to the Ancillary Claim, the former relying on the

Ancillary Claimants’ alleged knowledge of the defective caveat. “Campbell on Caveats” at page

108 deals with circumstances where a caveat is lodged with an ulterior motive, rather than to

protect an interest claimed. It is open to the Court in such circumstances to hold that the caveat

was lodged without reasonable cause. In this regard I note that the Claimant/Ancillary Defendant

indicated in her Main Claim that the land was of “sentimental value” to her and that she intended

to lodge the caveat to protect her interest therein. However, the Ancillary Claimant claims that

she was willing to have the land assented to her so that she could negotiate with the purchaser

herself presumably for a better purchase price (even though she never claimed that the land was

sold at an undervalue). These circumstances, to me, look very much like an ulterior motive.

91. In the circumstances, I find that the Ancillary Claimants are entitled to succeed on their

application for summary judgment in terms of paragraphs a, b, c and f of the reliefs sought in

the Ancillary Claim.

92. The claim for the sum of $125,000.00 being reimbursement for legal fees paid by the Ancillary

Claimants to their Attorneys-at-law as set out in paragraph d of the reliefs sought in the

Ancillary Claim is not allowable since such a claim is appropriately considered under the relief

claimed for recoverable costs. The Ancillary Claimant is already awarded costs on the Ancillary

Claim (paragraph f of the reliefs claimed) which said costs are to be assessed in accordance with

CPR Part 67.11.

93. The claim for interest on the sums set out in paragraph c of the reliefs claimed is also not

allowable on the basis that such claim is not in conformity with CPR 1998 Part 8.5(3) which

provides as follows:

(3) If the claimant is seeking interest, he must –

(a) say so expressly on the claim form; and

(b) include details of –

(i) the basis of entitlement;

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(ii) the rate;

(iii) the period for which it is claimed;

(iv) where the claim is for a specified amount of money, the total amount of

interest to the date of the claim; and

(v) the daily rate at which interest will accrue after the date of the claim,

on the claim form or in his statement of case.

However, while interest is not allowable on the claim for damages as stated aforesaid from the

date of accrual of the claim, statutory interest is appropriately awarded on the damages calculated

in accordance with paragraph c of the Ancillary Claim at the rate of 12% per annum from the

date of this Judgment to the date of payment.

The Ancillary Defendant’s Counterclaim

94. Part 18.6 of the CPR states that the defendant may continue a counterclaim even if the Court

gives judgment on the claim for the claimant and does not dismiss the counterclaim.

95. The Ancillary Defendant indicated that her amended counterclaim is for the following forms of

relief. I shall deal with each in turn.

(i) A Declaration that the Claimant/Ancillary Defendant is entitled to defend and protect her

entitlement emanating from the estate of Ramrattan also called Rattan.

96. The case of Commissioner of Stamp Duties (Queensland) v. Livingston [1965] A.C. 694

offers some guidance. Therein, the Privy Council held that in the case of an unadministered

estate, the assets as a whole were in the hands of the executor, his property, and until

administration was complete it could not be said what the residue, when ascertained, would

consist of or what its value would be. Accordingly, it was held that at the date of the widow’s

death therefore, there was no trust fund consisting of the testator’s residuary estate in which she

could be said to have any beneficial interest because no trust had as yet come into existence to

affect the assets of his estate. The testator’s property in Queensland, real or personal, was vested

in his executors in full right and no beneficial interest in any item of that property belonged to his

widow at the date of her death. The Board went on to hold that what the widow was entitled to in

respect of her rights under the testator’s will was a chose in action, capable of being invoked for

any purpose connected with the proper administration of his estate.

97. Emanating from the Livingston case,7the residuary legatee or person so entitled is entitled to a

chose in action, viz, a right to require the deceased’s estate to be duly administered, whereby he

can protect those rights to which he hopes to become entitled in possession in the due course of

administration of the deceased’s estate. The counterclaim of the Defendant whereby she seeks the

aforementioned declaration must be considered in context- in light of her actual pleadings in the

Defence to the Ancillary Claim, since it is on these facts that she relies in seeking relief on the

7 Supra

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counterclaim. From the Defence, it is clear that the Ancillary Defendant seeks, as she claims, to

defend and protect “her entitlement” through the filing of the caveat in contention. That caveat, as

I indicated above, has been found to be fatally flawed as she claims an interest as creditor with

nothing in her pleadings supporting same and there being no basis for any such claim of an

interest as creditor in the circumstances where there has been no renunciation, refusal or neglect

or other such inaction by the administrator to apply for a grant. Accordingly, seeking a

declaration that she is entitled to defend and protect her entitlement, relying on the said caveat,

cannot be permitted.

(ii) A further Declaration that the Principal Claim against the Defendant is pending and the

Defendant’s actions outside of the Court can be deemed to be abandonment of her

intention to defend the said Claim.

98. As I mentioned earlier, the Defendant in the Main Claim was unsuccessful in having the Main

Claim struck out. Accordingly, directions would usually be given for the filing of the Defence to

the said Claim. The Ancillary Claim and the Main claim deal with the same parcel of land. The

Ancillary Claimants were awarded summary judgment on the Ancillary Claim, the Ancillary

Defendant/Claimant having been found to have filed the caveat frivolously. Accordingly, the

Ancillary Claimants are entitled to their relief sought, such relief of which includes removal of

the defective caveat which would clear the way for perfection of title by way of the necessary

endorsements on the Certificate of Title. Having determined this, granting the relief sought by

the Claimant in the Main Claim would defeat the award of summary judgment on the Ancillary

Claim, and such having already been ordered, the relief sought by the Claimant is no longer

possible without eroding and rendering the summary judgment award meaningless, given that the

Claimant essentially seeks an assent to her of the disputed parcel of land.

99. Part 26 of the CPR deals with the Court’s general powers of management. Rule 26.1(w)

provides that the Court may take any other step, give any other direction or make any other order

for the purpose of managing the case and furthering the overriding objective. The overriding

objective is to deal with cases justly. I have considered all the circumstances of this case. There

has been nothing on the evidence to suggest that the Defendant does not intend to duly administer

the estate and distribute to the legatees their fair share of the proceeds of sale. The Claimant has

never suggested that same was sold at an undervalue and has in fact indicated, after having

claimed to want an assent to her 1/8 share of the parcel of land for sentimental reasons, that she

would want to have it assented to her to then negotiate with the purchaser herself, which leads

one to the conclusion that the action was merely begun for her to extract from the purchaser an

even higher payment for herself than what she would get from the sale carried out by the

Defendant. The Claimant has stubbornly relied upon her caveat which has proven defective and

has served to put the Ancillary Claimants through considerable expense. Summary judgment was

duly awarded against her, entitling the Ancillary Claimants to be compensated for the loss

endured as a result of her lodging the frivolous caveat. An assent to her of the property at this

juncture will not do justice between the parties and would only serve to undermine the Court’s

ruling on the Ancillary Claim.

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100. Moreover, it is not as though the Claimant, as Legal Personal Representative, receives

nothing. In fact, she is entitled to have her share of the monies obtained from the sale duly

distributed to her. The relief sought in the Main Claim is incompatible with the summary

judgment award. Therefore, exercising my powers under Rule 26.1(w) of the CPR, I am of the

view that the relief sought by the Claimant therein cannot be granted. Accordingly, having the

Defendant file a Defence in the main claim where the relief sought by the Claimant is not

possible, such will only result in the unnecessary incurrence of costs. Having awarded the

Ancillary Claimants summary judgment, it follows that similarly, the Defendant, as the Legal

Personal Representative of the estate of Ramrattan, was entitled to sell the disputed parcel of land

as alleged in the Ancillary Claim. Accordingly, the issues raised in the Main Claim cannot be said

to be “pending” and so this point raised by the Ancillary Defendant on her Counterclaim is

therefore moot.

(iii) A further Declaration that the Ancillary Claimant and/or his Attorney-at-Law did not act

with due diligence and relied upon the incompetence of a Title Clerk to proceed with the

completion of the purchase of the parcel of land.

101. The Ancillary Defendant alleges the lack of due diligence on the part of the Ancillary

Claimants and their Attorneys-at-law in their failure to discover the caveat that was filed by her

prior to the execution of the Memorandum of Transfer. Again- this very caveat- the existence of

which she seeks to rely upon in alleging a lack of due diligence- in and of itself was flawed and

has accordingly been deemed frivolous by this Court. The Ancillary Defendant accordingly,

having no reasonable cause for filing the caveat wherein she claims an interest as creditor, is

therefore precluded from raising such substantive argument of a lack of due diligence. Such

consideration does not even arise as the caveat has not passed the first hurdle-it being filed

frivolously- and accordingly requiring removal.

(iv) A further Declaration that the Claimant/Ancillary Defendant is not or was never involved

in any negotiations and/or Agreement with the Ancillary Claimant and is not liable for

his loss or losses.

102. The Ancillary Defendant relies upon her claim that she was not involved in any

negotiations or Agreement with the Ancillary Claimants and accordingly, she claims that she is

not liable for their losses. However, whether or not she was involved in negotiations for the

disputed land is not the issue. It was the Ancillary Defendant who filed the caveat in question,

preventing endorsement on the Certificate of Title and it is this caveat that is hindering perfection

of title and accordingly causing the Second Ancillary Claimant’s bridging facility at the bank to

continue. The Ancillary Defendant contends that the caveat was lodged against the Defendant in

the Main Claim and not the purchaser, but this argument unfortunately fails to appreciate the

nature of a caveat and further fails to take heed of section 128 of the Real Property Act, Chap.

56:02.

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103. While it may have been her intention to lodge the caveat against the Defendant, the

purpose of the caveat is to signal to the world at large- all who may deal with the property- that

there is some sort of claim to an interest from another in relation to the said property that may

prohibit dealing with same. According to Kitto J. In Lamshed v. Lamshed (1963) 109 CLR 440,

a caveat against dealings, when lodged “has the effect of a statutory injunction which continues

in force until the caveat is removed or lapses.”

104. The nature of a caveat against dealings was described by McMullin J. In Holt v.

Anchorage Management Limited [1987] 1 NZLR 108 as follows:

“Once lodged, a caveat is notice to all who search the title to the land against which it is

registered and to the registered proprietor of the land... that the caveator claims the estate or

interest the subject of the caveat. It is both a warning to the persons mentioned that the

caveator asserts rights against the land and a protection of those rights...”

105. Accordingly, the Ancillary Defendant does not avoid liability for lodging the defective

caveat merely because she claims it was directed at the Defendant in the Main Claim as this is not

the nature of the caveat- it is not so circumscribed and is not so narrow in its prohibitory effect.

Casey J. In Holt v. Anchorage Management Ltd observed that a caveat:

“gives protection of the caveator’s interest against all the world, unlike an injunction which is

normally confined to adverse dealings by the registered proprietor.”

106. Section 128 of the Real Property Act provides as follows:

“Any person lodging any caveat with the Registrar General without reasonable cause shall be

liable to make to any person who may have sustained damage thereby such compensation as

may be just, and such compensation shall be recoverable in an action at law by the person who

has sustained damage from the person who lodged the caveat.” [Emphasis mine]

From the aforementioned section, it is clear that the person who lodged the frivolous caveat shall

be liable to compensate any person who sustained damage as a result thereof. The Ancillary

Defendant, having lodged the frivolous caveat, is thus liable to the Ancillary Claimants for the

loss resulting from the lodging of same.

(v) A further Declaration that the voluminous exhibits attached to the Ancillary Claimant’s

Statement of Case are irrelevant to the Claim and make no reference to the

Claimant/Ancillary Defendant, save and except the Caveat lodged on the 25th July, 2014.

107. The said caveat is at the crux of the Ancillary Claimant’s case and accordingly is by no

means irrelevant. The other documents filed were advanced to support facts alleged in the

Ancillary Claim and are also not irrelevant.

(vi) An Order that the Ancillary Claimant is not entitled to the reliefs sought and that his

Ancillary Claim be dismissed.

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108. Summary judgment having been given in favour of the Ancillary Claimants, the

Claimant/Ancillary Defendant is not entitled to an Order to the effect that the Ancillary Claimants

are not entitled to the relief sought.

(vii) Costs.

109. The Ancillary Defendant has not succeeded on her counterclaim and I am of the view that

she is not entitled to costs.

110. Having regard to the evidence in this matter and in light of the foregoing analyses and

findings the Court orders as follows:

ORDER:

ON THE ANCILLARY CLAIM

1. Summary Judgment be and is hereby entered for the Interested Parties/Ancillary

Claimants on the Ancillary Claim filed on the 1st December, 2014 against the

Claimant/Ancillary Defendant on the basis that the Claimant/Ancillary Defendant has no

realistic prospect of success on her defence to the Ancillary Claim.

2. It is hereby declared that the caveat dated the 27th

June, 2014 and filed on the 25th

July,

2014 at the Registrar General’s Department by or on behalf of the Claimant/Ancillary

Defendant, Soobartar Deonarine also called Soobharta Deonarine, in relation to the lands

described in the Certificate of Title in Volume 4948 Folio 83 and now standing in the name

of Ramrattan, is frivolous and without reasonable cause.

3. That the said caveat be removed by the Claimant/Ancillary Defendant within five days of

this Order, in default of which the Registrar of the Supreme Court be and is hereby

authorised to sign the required Notice of Withdrawal of Caveat to facilitate the removal of

the said caveat.

4. The Claimant/Ancillary Defendant shall pay to the Second-Named Ancillary Claimant the

sum of $275,008.00 in damages as at the 1st December, 2014 and continuing at the rate of

$2,359.20 per day until removal of the said caveat.

5. Statutory interest at the rate of 12% per annum is awarded on the sum of damages

calculated in accordance with clause 4 of this order above from the date of this Judgment to

the date of payment.

6. The Claimant/Ancillary Defendant’s Counterclaim to the Ancillary Claim be and is hereby

dismissed as having no realistic prospect of success.

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7. The Claimant/Ancillary Defendant to pay to the Interested Parties/Ancillary Claimants

costs on the Ancillary Claim and Counterclaim, to be assessed in accordance with CPR Part

67.11 in default of agreement, certified fit for Advocate Attorney-at-Law.

In relation to the MAIN CLAIM/PRINCIPAL CLAIM –CV2014-01431 consolidated with CV 2014-

00645 this Court orders as follows:

1. The Defendant, as the Legal Personal Representative of the Estate of Ramrattan also called

Rattan, was at liberty to sell the disputed parcel of land now described in Volume 4948

Folio 83 to the Interested Parties/Ancillary Claimants.

2. Accordingly, the Claimant’s Claim and Statement of Case be and are hereby dismissed.

3. After paying out any sums relating to administration of the estate and debts if any, the

Defendant, as Legal Personal Representative of the Estate of Ramrattan also called Rattan,

shall distribute all of the proceeds from the sale of the disputed parcel of land equally

between the residuary legatees mentioned in the last Will and Testament of the testator

Ramrattan also called Rattan.

4. The Claimant shall pay to the Defendant 30% of her costs consequent on the dismissal of

the Claim quantified on the prescribed scale in the sum of $4,200.00 [that is, the claim being

considered as one for $50,000 pursuant to CPR 1998 Part 67.5(2)(b)(iii) the prescribed costs

of which amount to $14,000 × 30% = $4,200]

Dated this 23rd

day of July, 2015

___________________

Robin N. Mohammed

Judge

republic of trinidad and tobago in the high court of...

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