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THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
Claim No. CV2008-02860
Between
DOWAGA DANIEL
(Administrator Ad Litem in the Estate of Toyslin Daniel, deceased)
Claimant
AND
RUTHVEN DANIEL
(Executor of the estate of the deceased Leigh Hunt Daniel also known as
LeeHunt Daniel or Le Hunte Daniel)
Defendant
Before The Honourable Mr. Justice Frank Seepersad
Appearances:
1. Ms. R. Ramjit for the Claimant
2. Ms. D. Palackdharrysingh for the Defendant
Date of delivery: 11th
February, 2016
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Decision
1. This action concerns a parcel of land in which a Certificate of Title Volume 4488 Folio
159 was issued in the name of Leigh Hunte Daniel on the 18th
August 2003 pursuant to
the provisions of the Real Property Ordinance.
2. The land was previously occupied by Edward Ebenezer Daniel who was also called Lee
Hunt Daniel also called Lee Hunte Daniel, the father of Lee Hunte Daniel and the
Claimant. Edward Daniel however, did not have title to the said land and he died on or
about the 19th
day of July, 1957. A Deed of Assent registered as No. 2570 of 1970 was
executed by Eliza Elvira Daniel, his Widow and Administratrix and this Deed of Assent,
purported to transfer ownership of one-third of the land in question to Eliza Elvira Daniel
and a two-third interest in the said land to Lee Hunte Daniel, DeVerteuil Daniel, Viviette
Harry, Mitcheline Daniel, Theresa Daniel and Eloiza Daniel. This Deed however did not
effectively transfer of ownership of the land as same did not belong to the estate.
3. The land was in fact owned by Charles Henry Bradshaw, who in his Will, left a portion
of same to Maggie Percy, the mother of Edward Ebenezer Daniel. There is no evidence
that there was a transfer of ownership of this portion of the land to Maggie Percy or to
Edward Ebenezer Daniel.
4. Lee Hunt Daniel died on the 4th
day of February, 1997 and prior to his death he made an
application for the Certificate of Title with respect to the said land. The Defendant
Ruthven Daniel is Lee Hunt Daniel’s son and the Executor of his father’s estate.
The Claimant’s case
5. The Claimant’s case is that sometime around the year 1963 there was an agreement
between her and her other siblings with her deceased brother Lee Hunt Daniel, that he
would deal with all legal matters pertaining to their father’s estate and would distribute
the said lands between all the siblings in accordance with the well known wishes of their
father.
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6. The Claimant’s pleaded case was that in pursuance of the aforesaid agreement, certain
monies were given to Lee Hunt Daniel by the siblings and a family parcel of land in
Patience Hill Tobago was sold and a portion of the proceeds of the sale was given to Lee
Hunt for the purpose of sorting out the title to the said lands and for the distribution of
same.
7. The Claimant contends that on March 30, 2008, her siblings received information that the
Defendant had obtained a document which transferred the entire parcel of the said land to
Lee Hunt Daniel and on the same day her siblings also received information that the
Defendant was subdividing the land in preparation to sell parcels of same.
8. In April 2008 the Claimant’s Attorney caused a search to be done which revealed that
Lee Hunt Daniel had made an application to bring the lands under the RPO which was
granted. As a result of the search, the Claimant received documents which she alleged
contained fraudulent signatures of her and her four siblings.
9. The pivotal allegations of fraud pleaded by the Claimant are as follows:
a) That Lee Hunt Daniel lied in a statutory declaration when he swore that:
a. There were no other persons with a claim or interest in the said lands
b. All the siblings (including the Claimant) abandoned possession of the
land since attaining their ages of majority in the 1950’s.
c. That all the beneficiaries had acknowledged his right to possession of the
said lands and were not interested in the said lands.
b) That Lee Hunt Daniel tendered the following documents as evidence in his RPO
application which contained fraudulent signatures:
a. A document dated November 12, 1991 purportedly signed by five persons
including the Claimant the purport of which was to the effect that they
abandoned and renounced their rights to the said lands.
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b. A document dated August 27, 1990 purportedly signed by five persons
including the Claimant which indicated that they gave their consent to Lee
Hunt Daniel to apply to bring the lands under the RPO.
c. A document dated January 22, 1992 purportedly signed by five persons
including the Claimant, whereby they attested to the accuracy of the
document dated November 12, 1991.
10. The Claimant’s case is that she has been deprived of the use and enjoyment of her share
in the disputed land and her other siblings have also been so deprived.
11. Further the Claimant’s case is that in reliance of the representation made to her by her
brother Lee Hunt Daniel in 1995 regarding the disputed land being shared equally
between all the siblings, her son Donlyn Daniel with the consent of Lee Hunt Daniel built
a house on a portion of the said land which was identified by Lee Hunt Daniel and she
further contended that the true intention as well as the family agreement with her brother
Lee Hunt Daniel was reflected in his Last Will and Testament dated March 08, 1995.
The Defendant’s case
12. The Defendant admitted that there was a Deed of Assent registered as No. 2570 of 1970
but stated that Edward Ebenezer Daniel also known as Gurrie Daniel did not lawfully
own the parcel of land described therein and it did not lawfully comprise part of his estate
therefore, the Deed of Assent did not pass any title in the said land. The land according to
the Defendant was actually owned by Charles Henry Bradshaw and Louis Plageman
subsequently had control over the lands as executor of Henry Bradshaw’s estate and that
the land would not have been assented and conveyed by Eloiza Daniel.
13. The Defendant stated that he spoke to the Claimant since 2004 and informed her that he
was in possession of the Certificate Title and that it was in his father’s name only. The
Defendant said he was also in contact with Oslyn Harry, the son of Vivet Harry and
directly with Dowaga Daniel from time to time and he always told them about the
progress he had made with Town and Country Planning. This was done although the
land was in the name of Lee Hunt Daniel. The Defendant stated that the application to
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bring the lands under the RPO was published in 1993 in the daily newspapers and the
Claimant had proper notice of the application.
14. In relation to the allegations of fraud the Defendant pleaded that he was unable to admit
or deny the particulars of fraud as set out in the pleadings since it was impossible for him
to know the intentions of Lee Hunt Daniel however the Defendant advanced that to the
best of his knowledge, Lee Hunt Daniel at all material times acted honestly and believed
the representations he made. Further, the Defendant said that Lee Hunt Daniel had
reasonable grounds to believe and did believe up to the time of his death that the said
representations were true and he puts the Claimant to the strict proof of all the particulars
of fraud as detailed in the Amended Statement of Case.
15. The Defendant’s case therefore was that his father did not become the owner of the
disputed land by fraud as alleged
16. In addition the Defendant stated that the Claimant acquiesced to the title of the said land
being vested in Lee Hunt Daniel, by virtue of her inaction and she was not entitled to the
reliefs sought.
17. In the matter the Claimant sought the following orders:
a. A declaration that the said Certificate of Title issued on 18th
August 2003
under the provisions of the Real Property Ordinance Ch 27 No. 11 be
cancelled.
b. A declaration that the named Defendant holds on trust for the Claimant a
one-seventh share in the said lands described in the Certificate of Title
issued on 18th
August 2003.
c. An order that the named Defendant do transfer to the Claimant the one-
seventh share of the said lands.
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d. A declaration that the Claimant be declared the fee simple owner of that
portion of the said lands representing a one-seventh of the said portion of
lands.
e. An order for possession of that portion of the said lands which represents
as one-seventh share of the said portion of lands.
f. A quia timet injunction that the Defendant be hereby restrained from
selling or developing the said parcel of land which is represented as one-
seventh each of the said portion of lands rightfully belonging to the
Claimant.
g. An injunction prohibiting the Defendant or his servants or agents be
restrained from entering upon the said portion of lands rightfully owned
by the Claimant.
h. Specific performance of the contract.
i. Damages for breach of contract in lieu of or in addition to specific
performance.
j. In the alternative, an order compelling the Defendant to do the deed(s) of
assent vesting in the Claimant a one-seventh share or interest in the said
lands in accordance with the bequests in the Will of the deceased Lee
Hunt Daniel.
k. A declaration that at clause 5 of his Last Will and Testament the
deceased, Lee Hunt Daniel, intended to and did in fact carry out the family
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agreement thus entitling each of his siblings to one-seventh share in the
said lands.
l. Costs
m. Interest at such rate and for such period as to the Court seems fit.
n. Such other or further relief that the Court deems fit.
Issues to be determined
18. The issues to be determined are as follows:
i. Whether the issued certificate of title should be cancelled on the basis that same
was obtained by fraud.
ii. Whether there was a family agreement that Lee Hunt Daniel would act on behalf
of his siblings so as to ensure that they all received an equal share and interest in
the said lands.
iii. Whether the doctrine of laches should be applied so as to disentitle the Claimant
from pursuing any remedy before the Court.
Resolution of Issues
Issue 1: Whether the issued certificate of title should be cancelled on the basis that same was
obtained by fraud.
19. Sections 37, 45 and 142 of the Real Property Act Chp. 56.02 provides as follows:
- Section 37
Every certificate of title duly authenticated under the hand and seal of the
Registrar General shall be received, both at law and in equity, as evidence of the
particulars therein set forth, and of their being entered in the Register Book, and
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shall, except as hereinafter excepted, be conclusive evidence that the person
named in such certificate of title, or in any entry thereon, is seized of or possessed
of or entitled to such land for the estate or interest therein specified, and that the
property comprised in such certificate of title has been duly brought under the
provisions of this Act; and no certificate of title shall be impeached or defeasible
on the ground of want of notice or of insufficient notice of the application to bring
the land therein described under the provisions of this Act, or on account of any
error, omission, or informality in such application or in the proceedings pursuant
thereto by the Judge or by the Registrar General.
- Section 45
Notwithstanding the existence in any other person of any estate or interest,
whether derived by grant from the State or otherwise, which but for this Act
might be held to be paramount or to have priority, the proprietor of land or of any
estate or interest in land under the provisions of this Act shall, except in case of
fraud, hold the same subject to such mortgages, encumbrances, estates, or
interests as may be notified on the leaf of the Register Book constituted by the
grant or certificate of title of such land; but absolutely free from all other
encumbrances, liens, estates, or interests whatsoever, except the estate or interest
of a proprietor claiming the same land under a prior grant or certificate of title
registered under the provisions of this Act, and any rights subsisting under any
adverse possession of such land; and also, when the possession is not adverse, the
rights of any tenant of such land holding under a tenancy for any term not
exceeding three years, and except as regards the omission or misdescription of
any right of way or other easement created in or existing upon such land, and
except so far as regards any portion of land that may, by wrong description of
parcels or of boundaries, be included in the grant, certificate of title, lease, or
other instrument evidencing the title of such proprietor, not being a purchaser or
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mortgagee thereof for value, or deriving title from or through a purchaser or
mortgagee thereof for value.
- Section 142
Any grant or certificate of title registered under the provisions of this Act, so long
and so far as it remains uncancelled in the Register Book, and so far as no
discrepancy is shown to exist between it and the duplicate thereof, shall be
conclusive evidence of the matters thereon stated, or thereon endorsed by the
Registrar General, except as in this Act provided.
20. In Clarke v. Masterson HCA 2319 of 2004, Tiwary Reddy J explained at paragraph 33
the effect of the aforementioned sections as follows:
“33. It is a fundamental principle of the system of registered conveyancing that
the title of every proprietor registered thereunder is “absolute and indefeasible”
and cannot be impeached or affected by the existence of an estate or interest
which, but for the registration, might have had priority per Bereaux, J, as he then
was, in HCA 75 of 2000 Dillon v. Almandoz.
34. The Privy Council has said that “the sections making registered certificates
conclusive evidence of title are too clear to be got over”: Assets Co. v. Mere
Roihi [1905] AC 176 at 202 – “The cardinal principle of the Statute is that the
register is everything”: Waimiha Sawmilling Co. v. Waione Timber Co. [1926]
AC 101 at 106. Indefeasibility of title is subject to certain stated exceptions in the
Act.”
Further explanation of these sections was provided by Deyalsingh J in Crease .v. Voisin
(1980) High Court of Trinidad & Tobago No.1997 of 1971:
“The probable intention behind section 37 was to facilitate the proof of title in
Court. Judicial notice is to be taken of the seal of the Registrar General as the
authentication of the registered estate. When so sealed, a certificate of title has
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conclusiveness given to it by the section. The section is clear and “except as herein
excepted” the certificate of title herein put in by the defendant is conclusive
evidence that he is seized and possessed of or entitled to the lands described
therein in fee simple. Section 45 is also clear. It is the “key” section of the
ordinance and provides the quality known as indefeasibility of title to the
registered proprietor. Subject to certain exceptions, when a certificate of title has
become embodied in the register book, that title becomes indefeasible. There can
be no retrospective examination of the documents by which the person named
therein achieved the status of registered proprietor and no questioning of the
Registrar General to certify his title. Generally, there is to be “no going behind the
register in order to investigate the history of the title or to be satisfied as to its
validity.” Gibbs v. Messez [1891] AC 248. The title of the person is indefeasible.
It draws that quality from the words in section 45.”
21. The effect and purport of the aforementioned sections of the Real Property Act results in
a circumstance that a Certificate of Title stands as conclusive proof of ownership of the
said land, unless, the criteria as set out in the subsections of sec. 143 of the Act can be
satisfied.
22. Section 143 of the Real Property Act Chp. 56.02 provides as follows:
“No action of ejectment or other action for the recovery of any land shall lie or be
sustained against the person registered as proprietor thereof under the provisions
of this Act, except in any of the following cases:
(a) the case of a mortgagee or an annuitant or a lessor as against a mortgagor or a
grantor or a lessee in default;
(b) the case of a person deprived of any land by fraud, as against the person
registered as proprietor of such land through fraud; or as against a person
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deriving, otherwise than as a transferee bona fide for value, from or through a
person so registered through fraud;
(c) the case of a person deprived of or claiming any land included in any grant or
certificate of title of other land by misdescription of such other land or of its
boundaries, as against the proprietor of such other land not being a transferee
thereof bona fide for value;
(d) the case of a proprietor claiming under the instrument of title prior in date of
registration under the provisions of this Act, where two or more grants or two or
more certificates of title, or a grant and a certificate of title, may be registered
under the provisions of this Act in respect of the same land: And in any case other
than as aforesaid, the production of the original grant, certificate of title, or other
instrument shall be held, both at law and in equity, to be an absolute bar and
estoppel to any such action against the person named in such instrument as the
proprietor of the land therein described, any rule of law or equity to the contrary
notwithstanding: Provided that nothing herein contained shall prevent a plaintiff
from obtaining in an action judgment for specific performance of a contract for
the sale or lease of land under this Act, nor prevent a beneficiary entitled to call
for a transfer from a trustee from obtaining a decree for such transfer or such
vesting order as hereinbefore mentioned.”
23. The Claimant’s case, in relation to the cancellation of the Certificate of Title is premised
in fraud. In Roberts v. Toussaint (1963) 6WIR43, Wooding CJ at page 433 stated:
“Moreover, in actions in which a registered title is being impeached, fraud means
some dishonest act or omission, some trick or artifice, calculated and designed to
cheat some person of an unregistered right or interest: See Waimiha Sawmilling
Co v Waione Timber Co ([1926] A C 101, PC, 38 Digest (Repl) 893, *1183)
([1926] AC at pp 106‑107).”
24. When fraud is alleged pursuant to Sec. 143, the Court has to determine whether the
objective of the transfer was to cheat someone who had a known existing right or whether
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there was some deliberate stance or act of dishonesty that was employed, so as to cause
the non registration of an interest.
25. In Khan, Baby .v. Farouk, Khan Anors. Civ. App No. 101 of 1997, Hamel Smith JA
indicated that there must have been an intention to take away land from the owner by
means that involved some moral turpitude.
26. Section 142 (b) requires, that, the person who institutes an action to have a Certificate of
Title cancelled, must be a person who has been deprived of the disputed land. The
Claimant’s case is that she as well as her other siblings, each had an entitlement to the
disputed land as the entire portion of same was used and owned by their father.
27. The evidence clearly suggests that Edward Ebenezer Daniel controlled the subject lands
although same was legally vested in Charles Henry Bradshaw. Consequently any
entitlement of the said lands prior to the application to bring same under the RPO had to
be premised upon the possession of same.
28. The Claimant’s contention in relation to fraud is that the application that was filed to
obtain the Certificate of Title and in particular the documents annexed to the RPO
application as 6 b(i) to (iii) contained forged signatures of the Claimant and her siblings.
Those documents were consent documents that essentially purported to authorize Lee
Hunt Daniel to apply for a Certificate of Title to the said lands and they were prepared by
Mrs. Deborah Moore-Miggins Attorney at Law. During the management of this matter
before another Judge, it was ordered that Mr. Glen Parmassar was to be appointed to
determine the authenticity of the signatures on the documents. Subsequent to obtaining
the Parmassar report, Mrs. Moore Miggins caused the generation of another report from
Mr. Patrick Sealey in relation to the authenticity of the said signatures. Mr. Sealey
testified as an expert witness called on behalf of the Defendant at trial.
29. In Singh and Singh v. Singh and Tai Chew HCA 530 of 1991, Narine J (as he then
was) dealt with a scenario of fraud and said as follows:
“The burden of proving fraud lies on the person who alleges it. It must be
distinctly alleged and distinctly proved. The standard of proof is on a balance of
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probabilities. However, the standard is flexible, and requires a degree of
probability commensurate with the seriousness of the occasion. The more serious
the allegation the more cogent is the evidence required to overcome the likelihood
of what is alleged. The very gravity of an allegation of fraud is a circumstance
which has to be weighed in the scale in deciding as to the balance of
probabilities.”
30. In the circumstances of the instant case and having regard to the fact, that, any finding by
the Court that the signatures on documents 6b (i-iii) attached to the RPO application were
not that of the Claimant or her siblings, would necessarily impact upon the professional
reputation of Mrs. Moore-Miggins as she had signed some of the documents as an
attesting witness, the Court formed the view that the gravity of the allegations and the
possible impact on the professional standing of a senior legal practitioner necessitated the
need for cogent evidence and the gravity of the allegations had to be factored into the
scale when a determination of this issue, on a balance of probabilities, had to be
undertaken.
31. As a result the Court pursuant to the provisions of Part 40.6 of the CPR (1998 as
amended), summoned Mrs. Moore-Miggins to testify at the trial. Mrs. Miggins testified
that due to the passage of time she could not recall the actual event when the signatures
were appended but she said that it has never been her practice to append her signature as
an attesting witness unless she actually saw the persons whose signatures appear on a
legal document, sign same.
The Expert witness
32. Mr. Glen Parmassar, Forensic Document Examiner, prepared an expert report and he
examined the following questioned documents: an affidavit dated 12 November 1991
(Q1), an affidavit dated 22 January 1992 (Q2) and a consent document dated 27 August
1990 (Q3). Based on his examination of samples of Dowaga Daniel’s signature, he
concluded that it was highly probable that the questioned signatures in Q1 and Q3 were
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not executed by the writer of the sample signatures. With respect to Q2 he concluded that
the questioned signature was not executed by the writer of the samples.
33. In Sookram v Narine HCA 1881 of 1994 Mendonca J (as he then was) explained at
page 8 that the reason for an expert’s explanation of the basis for his opinion is to furnish
the Judge with necessary criteria for testing the accuracy of the expert’s conclusion so as
to enable the Judge to form his own independent judgment.
34. Although at page 5 of his report Mr. Parmassar stated that he found significant
differences between the known samples and the queried samples, there was no attempt to
demonstrate to the Court, using enlargement or magnification, the visual differences
between the known samples and the queried samples.
35. The Court formed the view that Mr. Parmassar did not provide sufficient information as
to the exact methodology that he adopted when he undertook the analysis which resulted
in the opinions that he expressed and the Court was left without the necessary criteria
with which it could properly test or attempt to gauge or measure the accuracy of the
conclusions expressed and so form its own independent judgment.
36. The Court was also not satisfied with the quality of the specimen signatures of Dowaga
Daniel that were provided to the experts. The Court, noted that the provided samples
were not taken from a time period that coincided with the time when the questioned
signatures were allegedly made.
37. The known samples provided for Dowaga Daniel, included a photocopy of a Trinidad and
Tobago Identification Card which was issued in 1998, a sheet of paper containing five
specimen signatures and a photocopy of an affidavit dated 9/3/79. The sheet of paper
containing the five specimen signatures was not dated. The questioned documents were
dated 12 November 1991, 22 January 1992 and 27 August 1990 respectively and five out
of the seven sample signatures were produced at least 18 years from the date of the
queried samples.
Page 15 of 20
38. In Sookram v. Narine (supra) the Court at page 15 pointed out that in order to determine
whether signatures are the same it is best if the signatures which are provided so as to
undertake the comparison, are contemporaneous with the disputed signatures.
39. In De Freitas v Alphonso Modern Record Store Ltd (1991) 45 WIR 239 the Court of
Appeal of Guyana refused to admit fresh evidence because the evidence of the
handwriting expert related to a comparison of the alleged signature of a person at age 69
with a signature at age 76. The Court also acknowledged that a person’s handwriting
changes more rapidly and usually deteriorates with age.
40. Mr. Parmassar acknowledged in cross examination, that the identification card of
Dowaga Daniel was not an ideal specimen sample given the nature of the card surface as
opposed to paper. The 18 year gap between the provided known samples and the
disputed signatures was viewed by the Court as significant and this inordinate length of
time created serious doubt in the Court’s mind as to the value of the findings of both
experts.
41. The Court also noted that in the case of Dowaga Daniel’s signature, two of the seven
samples provided, were photocopies. In relation to Mitcheline Daniel and Eloiza Daniel,
the only signatures provided were photocopies. The Court formed the view that in
arriving at his conclusion in relation to the signatures of Mitcheline Daniel and Eloiza
Daniel, Mr. Parmassar utilized samples which were less than ideal.
42. With respect to the signature of Eloiza Daniel, Mr. Parmassar opined that it was highly
probable that the same was not executed by the specimen written. The Court noted that
the signature in the questioned document was appended in capital letters but none of the
specimen samples which were provided for Eloiza Daniel were written with the use of
capital letters.
43. Mr. Sealey in his report made findings that were wholly inconsistent with Mr.
Parmassar’s report. The Court noted that Mr. Sealey’s report was generated after Mr.
Parmassar’s report and neither the Claimant nor her attorney had any input in the
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documents or the instructions that were sent to him. Mr. Sealey also had no original
documents at his disposal and the instructions that were sent to him were not disclosed.
44. In the circumstances and for the reasons outlined the Court found no assistance from
either expert witness. The Court, however, accepted Mrs. Moore-Miggins’ evidence.
The Court believed that she was a witness of truth and found on a balance of probabilities
that she would not have signed as a witness, unless, she had seen the persons whose
signatures appeared on the documents in question, actually sign same. Mrs. Moore-
Miggins is a practitioner of unquestioned integrity and she had no interest in these lands
and it is improbable that any circumstance existed which may have influenced her to act
in any dishonest or inappropriate manner.
45. The Court formed the view that the Claimant failed to discharge the burden imposed
upon her and the Court was unable to find that the signatures on the disputed documents
were not the signatures of the parties. The Claimant therefore failed to establish fraud in
accordance with section 143 of the Real Property Act Chp. 56.02.
Issues II: Whether there was a family agreement that Lee Hunt Daniel would act on behalf of his
siblings so as to ensure that they all received an equal share and interest in the said lands.
46. The resolution of this issue was fact dependant. The Claimant’s evidence on this issue
was found at paragraph 21 of the witness statement of De Verteuil Daniel. This witness
died prior to the trial and a hearsay notice was filed in respect of his evidence. At
paragraph 21, the witness who was the Claimant and Lee Hunte’s brother spoke of an
agreement and promise that the land would be transferred to all the children of his father
in equal shares.
47. The Court also considered the hand written instructions to Mr. Brian Busby dated January
17, 2009 which were annexed as “B” to the witness statement of Toyslin Daniel. In the
notes on the first page, Dowaga Daniel stated that “I signed as I was told that when he
got the land in his name and then it will be shared up amongst the siblings.”
48. The Court noted that Lee Hunt Daniel in his Last Will and Testament intended to give a
portion of the disputed land to the Claimant and her siblings. At Clause 5 the Testator
Page 17 of 20
stated, “I have already entrusted to my said Executor a draft outline of the manner that I
wish him to distribute the said lands subject to his obtaining approval from the Town and
Country Planning Division for his proposed sub-division”.
49. On this issue, as to whether there was a family agreement, the Defendant in his witness
statement simply stated that he did not know of any such agreement or arrangement.
50. The witness De Verteuil Daniel at paragraph 12 of his witness statement said he gave to
Lee Hunt Daniel the sum of $300.00 to defray administration expenses. The Court was
cognizant that this witness was not cross examined but had no reason to disbelieve the
evidence on this issue and no other evidence was led so as to dispute this assertion.
51. In the first statutory declaration of Lee Hunt Daniel dated October 29, 1984, the deponent
stated that the owner of the lands Charles Bradshaw was the reputed husband of his
grandmother Margie Percy and that they both lived together on the disputed land until
their respective deaths. He also said that his father, Gurrie Daniel was the son of Margie
and that he lived on the land from birth until he died in 1957. Daniel further stated that
he and all his brothers and sisters grew up on the land.
52. In his declaration sworn on June 04, 1988 Lee Hunt Daniel stated that all his brothers and
sisters to whom he referred to, had absolutely no interest in the said land as they each
abandoned possession of the said land since the attaining of their respective ages of
majority in the 1950’s.
53. Notwithstanding the aforementioned assertions the evidence of the Defendant is that up
to 2004 he continued to give updates to the Claimant and other siblings of Lee Hunt
Daniel relative to the land. The Court therefore asked itself why was there the need to
give updates to his father’s siblings if they had abandoned their interest in the land?
54. In another declaration which Lee Hunt Daniel made on February 25, 1993 he stated that
his mother’s share in his father’s estate merged with his brother and sisters and that “her
interest is now merged in the land with our share as we are the next of kin and the only
persons entitled to share in her estate”.
Page 18 of 20
55. Having reviewed the evidence, in its totality, the Court found as a fact that a family
arrangement did exist and that Lee Hunte Daniel led his siblings to believe that he acted
at all times for and on their behalf and that he did in, 1993, recognize that they
collectively had an interest in the said lands. The Court found that it was more likely than
not that there was an arrangement which transcended a moral obligation, that the land
would be shared and this is probably why Lee Hunte Daniel directed his Executor as to
the manner in which the land should be distributed among his beneficiaries which
included the Claimant and his other siblings. The Court also found that the application in
Lee Hunt Daniel’s name solely may have been done as a matter of convenience but that
the intention to share the land was always present.
56. The Court also found that it was significant that the Claimant’s son Donlyn Daniel has
since on/or about 1995 erected a house and has lived on a portion of the disputed land
and that his occupation was with Lee Hunt’s consent. The giving of consent to Donlyn
was in the view of the Court consistent with an acknowledgment that all children of the
deceased Edward Daniel had an interest in the lands.
Issues III: Whether the doctrine of laches should be applied so as to disentitle the Claimant from
pursuing any remedy before the Court.
57. In Mahabir v. Mohammed CV 2011-1574, Dean Armorer J, at page 17 stated
“Having considered the submissions and arguments of learned counsel, in these
proceedings, it is my view that the following principles are to be culled from the
authorities:
Specific performance is an equitable remedy. In granting this remedy
equity does not act concurrently with that of the law. Accordingly
limitation statues do not apply by analogy to the remedy of specific
performance. See Deryck Mahabir v. Courtnay Phillips.
The doctrine of laches may prevent the Court from granting specific
performance.
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Laches does not depend on delay alone. It is generally applicable where
one or both of two situations are present: Where the claimant has failed
to take action to enforce his rights in such a way that his inaction could
be construed as a waiver of his rights. The second situation arises where
the defendant experiences a change of position and there is consequent
prejudice which may attend the grant of specific performance. Where
either of these two situations is present, it is my view, that the Court
may refuse specific performance on the ground of laches
It is my view however that even where the two situations are present,
the Court may nonetheless grant specific performance if it is just so to
do. Conversely, even where the two situations are absent, the Court
may nonetheless apply the doctrine of Laches, if delay on the part of
the plaintiff has been so unreasonable as to be regarded as
unconscionable. Equity is embedded in conscience and the Court of
Equity, in my view, must consider whether in all the circumstances the
delay was unconscionable. The answer of this question does not depend
on a numerical quantity. Accordingly the span of almost 10 years did
not prevent the Court of Appeal from granting specific performance in
Sharif Fida Hosein v. Dassie Harrydath. In my view, the answer
depends on an assessment by the Court of all the circumstances and a
determination as to whether, having regard to the delay, it would be
unconscionable to grant specific performance.”
58. This Court formed the view that the length of time that was taken to institute the instant
action was not unreasonable and found that there were no circumstances so as to justify
the withholding of the grant of equitable relief.
59. In the circumstances and having found that there was a family arrangement to share the
lands the Court hereby orders as follows:
Page 20 of 20
a) The Court declares that a family arrangement existed and that the lands in
question has to be divided, equally between all the children of Edward Daniel.
b) The Court declares that a 1/7 share and interest in the lands as described in the
Certificate of Title Volume 4488 Folio 159 is held on trust for the Claimant and
the Defendant shall within 14 days of the presentation of a Memorandum of
Transfer to convey the said 1/7 share of the lands to the Claimant, execute same
and make available to the Claimant, the Certificate of Title for registration. In
default the Registrar of the Supreme Court shall be empowered to execute the said
Memorandum of Transfer. This cost for the preparation and registration of the
said Memorandum of Transfer is to be borne by the Claimant.
60. The parties shall be heard on the issue of costs.
..................................................
FRANK SEEPERSAD
JUDGE