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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV 2012-05033

SUSAN SEECHARAN Claimant

AND

NELSON RODRIGUES Defendant

Before the Honourable Madam Justice Margaret Y Mohammed

Dated the 21st March, 2017

APPEARANCES

Mr. Javed Mohammed Attorney at law for the Claimant.

Ms. Genna Lucky-Samaroo Attorney at law for the Defendant.

RULING

1. The Claimant and the Defendant are siblings. By the Will of their father John

Rodrigues (“the deceased”) who died on the 21st October 1976 they acquired certain

interest in the property situated at 23 Mucurapo St James (“the property”). Before the

Court is the Defendant’s Notice of Application dated the 30th of September, 2016 (“the

application”) pursuant to Parts 26.1(k) and 26.2 of the Civil Proceedings Rules 1998

(as amended) for the following reliefs:

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a. The Claimant be barred from being granted the reliefs sought in the Fixed Date

Claim filed on the 11th December 2012 (“the Claim”) due to unconscionable

delay under the doctrine of laches;

b. That the Claim be struck out; and

c. Costs.

2. A summary of the background will give the application context. The Claimant

instituted the Claim and Statement of Case against the Defendant for the following

reliefs:

a. An order that the property be partitioned;

b. Further and or in the alternative an order that the property be sold and the

proceeds of sale be divided accordingly;

c. An account of all money received by the Defendant in relation to the use and

occupation of the property;

d. The payment of all money found due and owing by the Defendant to the

Claimant after the taking of the accounts referred to in “c” above;

e. Interest on the said sum found due and payable at the rate of 12% per annum;

f. Costs; and

g. Such further and or relief as the court may deem just.

3. At the hearing of the first Case Management Conference (CMC) on the 18th November,

2013 (“the order”), no defence having been filed by the Defendant, it was ordered by

the Pemberton J (as she then was), that:

a. The Registrar do surcharge and falsify the accounts in the Estate of the

deceased;

b. That upon completion that the Registrar do report to this Court; and

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c. The matter is adjourned to a date to be notified.

4. In compliance with the order the matter was then transferred before an Assistant

Registrar for the taking of accounts. It was called several times before the Assistant

Registrar but even up to the date of the trial for the taking of accounts, the Defendant

failed to produce all records in relation to the use and occupation of the property

necessary for the taking of accounts. The Defendant has only filed some records for

the period 2008 - 2014 in partial compliance with the order.

5. Four (4) years after initiating proceedings and three (3) years after the order the

application was filed. The grounds in support of the application are as follows:

a. The delay on the part of the Claimant to take action to enforce her rights has

been unreasonable and to be regarded as unconscionable.

b. The inaction of the Claimant should be construed as a waiver of her rights.

c. It would be unconscionable to grant the relief sought by the Claimant and the

relief being equitable the Claimant is guilty of laches.

d. Prejudice will be caused to the Defendant if the reliefs sought are granted since

the claim relates to a period commencing some thirty-six (36) years ago.

6. The affidavit in support of the application was not deposed to by the Defendant but

rather by his Advocate Attorney at law, Ms Genna Lucky-Samaroo (“the Defendant’s

affidavit”). According to the Defendant’s affidavit, upon the deceased’s death he

assumed all the responsibilities in the business and the property. In 1988 the

Defendant carried out renovations on the property without objection from the

Claimant to expand the shop. The Defendant has alleged that he is prejudiced since if

he had known that he would have been called up to account for the last 36 years he

would have kept proper records of the bills and receipts for the costs of all the work

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done and that he is further prejudiced since he is not in good health and he does not

appear to remember crucial facts.

7. The Claimant filed an affidavit in opposition on the 31st January 2017 (“the Claimant’s

affidavit”) where she responded to the matters set out in the Defendant’s affidavit.

The Claimant has asked for the application to be dismissed for the following reasons.

The reliefs sought by the Claimant in the Claim are legal and not equitable remedies;

even if the reliefs sought were equitable remedies the Defendant has failed to establish

the necessary ingredients for the equitable doctrine that delay defeats equity; and the

Defendant has not come into equity with clean hands and therefore cannot rely on the

doctrine of laches.

8. I agree with the Claimant’s position and dismiss the application for the following

reasons.

9. Firstly, the reliefs sought by the Claimant in the Claim are based on statutory

provisions and are not equitable in nature. According to the Claim the first two reliefs

sought by the Claimant are an order for partition and/or in the alternative an order for

the sale of the property and the proceeds of the sale to be divided equally. The

Claimant ‘s claim for this relief is based on Section 3 of the Partition Ordinance1

which states:

“In a suit for partition, where, if this Ordinance had not been passed, a decree for

partition might have been made, then if it appears to the Court that by reason of the

nature of the property to which the suit relates, or of the number of the parties interested

or presumptively interested therein, or of the absence or disability of some of those

parties, or of any other circumstance, a sale of the property and a distribution of the

proceeds would be more beneficial for the parties interested than a division of the

1 Chapter 27:14

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property between or among them, the Court may, if it thinks fit, on the request of any

of the parties interested, and notwithstanding the dissent or disability of any others of

them, direct a sale of the property accordingly, and may give all necessary or proper

consequential directions.”

10. According to paragraphs five (5), six (6) and seven (7) of the Claimant’s affidavit, by

the deceased’s Will, he appointed the Defendant as the executor and bequeathed, inter

alia, the business and the property on which the business stood to the Claimant’s

mother, Ruth Rodrigues for the term of her natural life with the power to direct and

control the business. The deceased further stated in the Will that upon the Claimant’s

mother’s death, the Defendant was to obtain one undivided half share of the business

and the property. The remaining undivided half share was bequeathed unto Peter

Rodrigues (now deceased), Anthony Rodrigues (now deceased with no wife or

children), Christine Rodrigues, Michael Rodrigues and the Claimant in equal shares

for their absolute use and benefit. This was not disputed by the Defendant.

11. According to paragraph 10 of the Claimant’s affidavit, notwithstanding the bequests

made in the deceased’s Will, the Defendant always acted in a highhanded manner in

his dealings with his mother, his siblings and the Claimant. The Defendant refused to

acknowledge the Claimant’s entitlement to the property. Further, as the Claimant’s

entitlement to the property was an undivided share she was prevented from laying

an exclusive claim to any portion of the property. It was therefore based on those

circumstances that the Claimant had no alternative but to seek the Court’s invention

for an order for the partition of the property or alternatively a sale of it and for the

proceeds of the sale to be divided accordingly.

12. The Defendant did not address the Claimant’s assertion that he has failed to pay the

Claimant for her interest in the property.

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13. In my opinion the Claimant’s approach in seeking the relief for partition of the

property pursuant to section 3 of the Partition Act was based on the nature of the

Claimant’s ownership in the property and the Defendant’s failure to give full effect

to the terms of the deceased’s Will.

14. The Claimant has acknowledged that the partition in the physical sense may be

difficult to operate in a manner that is fair to all interested parties, so she has sought,

in the alterative, a sale of the property and a distribution of the proceeds if such sale

would prove more beneficial than a physical division of the property.

15. Therefore, the reliefs sought by the Claimant are legal and not equitable since they are

claimed pursuant to the provisions of the Partition Ordinance.

16. The third and fourth reliefs which the Claimant has sought are related to orders for

the taking of accounts in relation to the use and occupation of the property by the

Defendant. It was not in dispute that the Defendant was appointed the executor of the

Will of the deceased and the property formed part of the estate of the deceased.

However the Defendant did not apply for the grant of probate to legally administer

the estate of the decease but instead Ruth Rodrigues was appointed the legal personal

representative of the deceased in September 1991.

17. According to paragraph 8 of the Defendant’s affidavit, subsequent to the passing of

the deceased, the Defendant became the shopkeeper of the business situated on the

property and assumed all responsibilities. Between 1982 to 1999 he carried out

renovations to the property. The Claimant’s response to this was set out at paragraph

nine (9) of the Claimant’s affidavit where she stated that during the period 1982 to

1999 she was unaware of the said renovations since she visited the business every 2-3

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months after the deceased’s death and she did not see any renovations. In any event,

she was constrained to make any objections since her interest in the property only took

effect upon her mother’s death in 1994. She also deposed that she was aware that the

Defendant closed the business in 1999 and did renovations to the property which he

subsequently rented out as commercial property without consultation and /or

permission from she and her siblings and he also failed to account for or remit any

sums collected by him from the tenants. This was not challenged by the Defendant.

18. Therefore the undisputed position was that after the Claimant and Defendant’s

mother died in 1994, the Defendant was aware from the deceased’s Will and the deed

of assent registered as No 1721 of 1992 (“the deed of assent”) that he was not the sole

owner of the business and the property but he shared ownership with the Claimant

and her siblings. However, he dealt with the business and the property as his own,

taking decisions to renovate it and rent it out without consulting and accounting to

the Claimants and her siblings.

19. In my opinion, the relief sought by the Claimant for the Defendant to account for all

the monies received in relation to the use and occupation of the property is a legal

relief. The other owners of both the business and the property under the deed of assent

are entitled to call upon him to account for his dealings with the property from the

date of the death of the deceased in 1976 since by the Defendant’s own admission that

was when he assumed full responsibilities. It is not an equitable relief to which the

doctrine of laches apply.

20. Secondly, even if the relief sought was equitable, the Defendant has failed to establish

the elements of the equitable doctrine of laches. According to Snell’s Equity 2:

2 32nd edition

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“Laches essentially consist of a substantial lapse of time coupled with the existence of

circumstances which make it inequitable to enforce the claim in equity. The first of these

circumstances is a reasonable, detrimental, reliance by the defendant upon the

claimant’s delay. Lord Neuberger has recently held that “some sort of detrimental

reliance is usually an essential ingredient of laches. Alternatively, it is necessary for

there to be some clear act of the claimant which amounts to an acquiescence or waiver

of his right.”

21. The onus was on the Defendant to provide evidence to establish the following two

elements which constitute the equitable doctrine of laches:

i. There must be some clear act of the Claimant which amounts to an acquiescence

or waiver of her rights; and

ii. There must be reasonable and detrimental reliance by the Defendant upon the

Claimant’s delay.

22. In my opinion, the Defendant failed to satisfy the Court that there was a clear act by

the Claimant to amount to acquiescence. It was submitted on behalf of the Defendant

that:

i. “By his Will, the deceased appointed the defendant as his executor and

bequeathed onto him one undivided half share of and in the business and the

said property;

ii. That upon the death of the deceased, he (the defendant) became the shopkeeper

and assumed all responsibilities associated with this title;

iii. That in the years 1982 and 1988 he carried out renovations and at no time

during these two periods, did the claimant raise any objections;

iv. That once more in or about the year 1999, he closed the shop and carried out

renovations to the building and at no time during this period did the claimant

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raise any objection with the defendant closing down the business carrying out

extensive renovations.”

23. It was argued by the Defendant that the failure of the Claimant to raise any objection

to the Defendant’s actions or to institute legal proceedings against him for thirty-six

(36) years constitutes acquiescence on the Claimant’s part.

24. I do not accept that submission. In my opinion, based on the terms of the deceased’s

Will, upon the deceased death, whilst the deceased intended for the Defendant to

manage and operate the business, the Defendant was responsible to the Claimant’s

mother in the business by reporting and providing accounts to her. The Claimant’s

entitlement to an interest in the business and the property only arose upon her

mother’s death in 1994 as bequeathed in the deceased’s Will. It follows therefore that

the Claimant could not have reasonably made any objections to the Defendant’s

renovations in 1982 and 1988 as her interest in the property only came into existence

after her mother’s death in 1994. In Re Pauling's Settlement Trusts3the Court stated

that, “a party cannot be held to have acquiesced unless he knew, or ought to have known, what

his rights were”.

25. It was also argued on behalf of the Defendant that even after the Claimant became

entitled to a share in the property in 1994 she allowed a substantial length of time to

pass before raising any objections or initiating legal action.

26. According to paragraphs eleven (11), twelve (12), thirteen (13) and fourteen (14) of the

Claimant’s affidavit, upon noticing that the Defendant closed down the business, she

3 (1963) 2 All ER 1

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made several oral requests to him to provide an account and to pay to her the sums

due and owing from the business and any rents collected when the property was

converted after the business was closed. The Claimant also deposed that she made

these requests following the Defendant’s acknowledgment of her entitlement under

the provisions of the deceased’s Will and his further promises to provide her with a

statement of accounts and pay to her any monies due and owing. The Defendant did

not deny or contradict the aforesaid evidence by the Claimant.

27. In my opinion, the Claimant did not allow a substantial length of time to pass upon

recognising her entitlement in 1994 before raising any objections. Upon acquiring an

interest in the said property in 1994, the Claimant actively took steps to assert her

rights against the Defendant.

28. It was also argued by the Defendant that the Claimant failed to provide any proof of

her claims. In my opinion this submission is without merit since the Defendant has

not denied the Claimant’s evidence. Further, there were consensual efforts by both the

Claimant and Defendant to resolve the matters since this was a family matter. It is also

impracticable in a family matter to expect that the Claimant would have made a

written request to her brother, the Defendant, for a statement of accounts and the

monies due and owing to her.

29. In any event, even if the Claimant failed to raise any objections to the Defendant’s

actions or institute legal proceedings upon recognizing her rights in 1994, her inaction

does not constitute an act which can amount to an acquiescence or waiver of her rights.

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30. In Frawley v Neil4 the Court stated the modern approach the Court takes when

considering the equitable doctrine of laches as:

“The modern approach to the equitable doctrine of laches, whereby the court would not

uphold beneficial rights whose assertion or enforcement had been unreasonably delayed

by their claimant, was not to inquire into all the circumstances to see whether they

fitted within the principles established in previous cases, but rather to ask whether,

broadly considered, the claimant's actions were such as to render it unconscionable for

him to be permitted to assert his beneficial rights.”

31. In the local decision of Hugh Lee King v Leo Martinez and Veronica Lambert5, Jones

J (as she then was), stated that the ingredient of acquiescence under the doctrine of

laches does not mean “standing by while the violation of a right is in progress, but assent

after the violation has been completed and the plaintiff has become aware of it.” (Emphasis

mine).

32. Therefore, even if the Claimant failed to raise any objections to the Defendant’s actions

or to institute legal proceedings, this does not amount to acquiescence on the

Claimant’s part. The onus was on the Defendant to show that the Claimant did more

than stand by after her rights were violated in that she acted in such a way that it can

be construed as her assent for it to amount to acquiescence or waiver of her rights.

33. In my opinion, there was no such evidence provided by the Defendant which can

amount to acquiescence and/or waiver of the Claimant’s rights. Mere inaction and/or

delay by the Claimant are not sufficient. Therefore, the Defendant has failed to

establish that there was acquiescence on the part of the Claimant and as a consequence

4 5th April 1999 Times Law Reports 5 CV 2012-03303

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the Defendant has failed as required under the equitable doctrine of laches to establish

assent on the part of the Claimant that can amount to acquiescence or waiver of rights.

34. The second element which the Defendant has to demonstrate was that he acted

reasonably and to his detriment during the Claimant’s delay. The Defendant

submitted that due to the unconscionable length of time the Claimant allowed to pass

before instituting proceedings there are a number of factors that prejudice his case

which includes: the lack of documentation to produce a full and comprehensive

account; and the Defendant’s deteriorating health.

35. The account which was ordered to be provided by the Defendant was in relation to

the deceased’s estate. By the Defendant’s own admission, he appeared to have taken

full control of the business and the property after the death of the deceased. The

Defendant only provided documentary records for the period 2008 - 2014 without any

explanation as to his inability to procure the relevant documents for the period 1976

– 2008 .In my opinion the Defendant having dealt with the property as his own since

1976 and more particularly, after his mother’s death when he knew that he was not

the sole owner, he had a duty to keep in his safe custody all the documents showing

his receipts and disbursements concerning the business and the property and

therefore he cannot now claim prejudice when called upon to account.

36. It was also submitted on behalf of the Defendant that it is during this unconscionable

delay by the Claimant that documents that would have assisted him in presenting his

case were destroyed. In my opinion, the fact that the documents are impossible to

procure cannot be attributed to any delay on the part of the Claimant. In my opinion,

the Defendant ought not to have relied on the Claimant’s failure to initiate

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proceedings earlier as a reason for not safeguarding all documents necessary to

provide an account.

37. Therefore, the Defendant was unable to show that there was a reasonable and

detrimental reliance upon the Claimant’s delay.

38. In any event, the Defendant always knew that upon the Claimant’s mother death, the

Defendant was only entitled one undivided half share of the business and property.

Therefore, any delay by the Claimant in asserting her interest ought not to have caused

the Defendant to reasonably alter his position to act to his detriment where in the

circumstances he acted as being solely entitled to the business and property after the

deceased’s death.

39. Further, there was no evidence by the Defendant to support his assertion that his

position has been altered to his detriment. In my opinion, the Defendant ought not to

have benefitted more than he was entitled to by the deceased’s Will and as such, his

position could not be reasonably altered to his detriment as he was never solely

entitled to the business and the property.

40. Thirdly, even if the Defendant had established the necessary ingredients of the

equitable doctrine of laches, he cannot rely on the said doctrine since he has not come

to equity with clean hands. According to Snell’s Equity:

“The Claimant not only must be prepared now to do what is right and fair, but must

also show that his past record in the transaction is clean .…” 6

6 John, McGhee Q.C, Snell’s Equity, Trust, Wills and Probate. 31st Ed., Sweet & Maxwell 2005. Page 98, paragraph 5-15

quoting the case of Jones v Lenthal (1669) 1 Ch. Cas. 154

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41. Whilst equity does not require its advocates to be entirely blameless, a claim shall be

barred where their tainted hands have an immediate and necessary relation to the

equity sued for. In my opinion, while the Defendant is seeking equitable relief on the

grounds of the Claimant’s delay, his actions has clearly demonstrated that his hands

are unclean since his own conduct has been characterized by delay.

42. The Claimant instituted these proceedings on the 11th December, 2012. The first

hearing of the CMC was scheduled for the 18th January, 2013. The Defendant’s attorney

at law indicated by letter dated 7th January, 2013 her inability to proceed with the claim

on the 18th January, 2013 as she was in the course of obtaining instructions from the

Defendant and would thus not be able to prepare an account in relation to the

deceased’s estate as sought by the Claimant in time. Upon the matter coming on for

hearing on the 18th November, 2013, no account or defence was filed by the Defendant.

The order was made by Pemberton J (as she then was) that the Registrar do surcharge

and falsify the accounts of the deceased’s estate. Notwithstanding the making of the

order in 2013 and without any reasonable excuse, it was only on the 26th October, 2015

that the Defendant provided an audited account in relation to the estate of the

deceased for the period of 2008 - 2014 contrary to the order which essentially required

the Defendant to provide an audited account from the date of the death of the

deceased in 1976 to the institution of the instant action in 2012. After filing the said

audited account, the matter having already been listed before the Assistant Registrar,

it was ordered by the Assistant Registrar on the 26th January, 2016 that the Defendant

was to file his supplemental affidavit on or before the 23rd February, 2016. Again

delaying proceedings further, the Defendant only filed his supplemental affidavit on

the 25th April, 2015 explaining his reason for delay was as a result of an alleged stroke

for which no medical evidence was provided at that time. Thereafter, it was only on

the 30th September, 2016, four (4) years after the institution of the instant action and

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three (3) years after the order, the Defendant filed the application which would

essential bar the Claimant’s claim.

43. In my opinion the Defendant himself has caused these proceedings to be further

delayed without any reasonable and/or just cause, therefore he cannot now seek to

rely upon the equitable doctrine of laches to have the Claimant’s claim barred and

struck out since it cannot be said that he came to equity with clean hands.

44. Further, the Defendant has partially complied with the order since he has sought to

provide the necessary accounts for the period 2008-2014. In my opinion, the

application appears to be a convenient escape by the Defendant to avoid compliance

with the order.

45. Therefore, even if the Defendant had crossed the hurdles of satisfying the Court that

the reliefs sought by the Claimant were equitable in nature and he had provided

evidence to satisfy the Court that the Claimant acted in such a manner that she had

waived her rights and as a consequence he acted to his detriment, the application

would still have still failed since he has not come to equity with clean hands.

46. It was also submitted on behalf of the Claimant that the Defendant’s affidavit should

be struck out since it offends Rule 35 of part A of the Code of Ethics of the Legal

Profession Act7 which provides that:

“(1) An Attorney-at-Law should not appear as a witness for his own client except as to

merely formal matters or where such appearance is essential to the ends of justice.

(2) If an Attorney-at-law is a necessary witness for his client with respect to matters

other than such as are merely formal, he should entrust the conduct of the case to

7 Chapter 90:03

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another Attorney-at-law of his client’s choice.”

47. In Hosein’s Construction v 3G Technologies8 the issue the Court had to determine

was whether an instructing attorney at law can give evidence whilst remaining as the

attorney at law on record for the defendant in those proceedings. Kokaram J at

paragraph 4 of the judgment stated that:

“the Code of Ethics sets out the standard of the practice of law in this jurisdiction. A

Court must be careful to demand no less of a standard of the attorney so as to preserve

the honour and dignity of the profession and the proper administration of justice. As a

matter of public policy the court cannot countenance a lesser standard relating to

practice than those which the attorney have set themselves for the regulation of their

profession.”

48. Kokaram J found that it was objectionable for the instructing attorney at law to give

evidence whilst remaining an attorney at law on record for the defendant to those

proceedings. Accordingly, he held that as there was a breach of Rule 35 of Part A of

the Code of Ethics, and the witness statement had to be withdrawn or the attorney at

law had to withdraw from acting for the defendant while she was a witness in the

matter.

49. In The Matter Of An Application For A Writ Of Habeas Corpus Between Yeshivia

Hayon, Tehila Hayon, Yehodit Nechama Soleimani, Miriam Soleimani,

ShiraHayon and Moshe Yochanan (All Minors), Ester Hayon, AzarHayon,

Avrohom Dinkel v The Chief Immigration Office and The Attorney General of

Trinidad and Tobago9 Kokaram J once more pointed out that it is a basic elementary

principle that an attorney at law who appears as advocate attorney on the filing forms

8 CV 2008-00560 9 CV 2014-00759

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cannot give evidence on the same matter in which he so appears. The Judge further

noted that where the evidence of the attorney at law in the form of an affidavit was

material to an application filed by his clients and the attorney’s evidence on the said

affidavit did not merely deal with formal matters, it was a breach of the attorney’s

code of ethics for him to act as advocate in those circumstances.

50. The application is supported by the Defendant’s affidavit which was sworn by Ms.

Genna Lucky-Samaroo in which she deposed that she was the Attorney-at-law

representing the Defendant and she was duly authorised to make the affidavit on the

Defendant’s behalf. Ms. Lucky-Samaroo is also referred to as the advocate attorney on

the filing forms and upon this matter being called on the 16th January 2017, Ms. Lucky-

Samaroo announced her appearance as advocate attorney for the Defendant.

51. Ms. Lucky-Samaroo’s affidavit evidence is material to the application and it does not

merely deal with formal matters. Ms. Lucky-Samaroo must be held by the standard

prescribed by the Code of Ethics and nothing less. In my opinion this is a clear breach

of Rule 35 of the Code of Ethics of the Legal Profession Act since Ms. Lucky-Samaroo

cannot appear as advocate attorney for the Defendant and give evidence on this

matter. I therefore agree with the Claimant’s submission that the Defendant’s affidavit

is to be struck out.

52. Lastly, it was submitted on behalf of the Defendant that “the defendant has had

possession of the premises in question exclusively for a period in excess of 16 years and therefore

in any event, any right to the property which the claimant may have had ought to be deemed

to be extinguished.”10

10 Part IV of the Defendant’s submissions filed on the 13th February 2017

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53. The Claimant argued that the above submission is akin to a claim that the Defendant

is entitled to the property by virtue of the doctrine of adverse possession and that it

should be disregarded.

54. In my opinion the aforesaid submission under the doctrine of adverse possession

cannot be substantiated given the evidence and documents filed in the instant matter.

The Defendant has failed by his evidence to set out any facts upon which a finding of

adverse possession can be made. Further there is no relief in the application or in the

grounds to support a claim of adverse possession.

55. Therefore any reference by the Defendant in his submissions to the doctrine of adverse

possession is without any basis and irrelevant to the application.

Order

56. The Defendant’s notice of application filed on the 30th September 2016 is dismissed.

57. The affidavit of Genna Lucky-Samaroo is struck out.

58. The Defendant is to pay the Claimant’s cost. I will hear the parties on quantum.

………………………………………

Margaret Y Mohammed

Judge