THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT …webopac.ttlawcourts.org/.../cv_07_02565DD27mar2014.pdf · CV 2007-02565 BETWEEN NORMA SMITH (AS EXECUTRIX OF THE ESTATE OF

THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV 2007-02565

BETWEEN

NORMA SMITH(AS EXECUTRIX OF THE ESTATE OF ROSALYN DAFROSA SMITH)

Claimant

AND

LANCELOT SMITHFirst Named Defendant

THE ATTORNEY GENERALOF TRINIDAD AND TOBAGO

Second Named Defendant

APPEARANCES:

Claimant Mr. Ken Wright instructed by Angelique OloweFirst named Defendant: Mr. Mervyn MitchellSecond named Defendant: Ms. Monica Smith instructed by Ms. Renessa Tang Pack

DATE OF DELIVERY: March 27th 2014

Before The Honourable Mr. Justice Devindra Rampersad

JUDGEMENT

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Contents

Introduction .................................................................................................................................... 3

The Claim ........................................................................................................................................ 3

Defences.......................................................................................................................................... 5

The First Named Defendant’s Defence....................................................................................... 5

The Second Named Defendant’s Defence .................................................................................. 6

The Claimant's evidence ................................................................................................................. 6

Norma Smith ............................................................................................................................... 6

Comment ................................................................................................................................ 7

Comment ................................................................................................................................ 7

Comments on cross examination ........................................................................................... 8

Jenkins Job .................................................................................................................................. 9

Comments on cross examination ......................................................................................... 10

Anora Smith .............................................................................................................................. 10


The First Named Defendant’s Evidence........................................................................................ 11

Lancelot Smith .......................................................................................................................... 11


Robert Smith ............................................................................................................................. 12


Joseph Smith ............................................................................................................................. 13

The Second Named Defendant’s Evidence................................................................................... 13

Jacqueline Ganteume-Farrell .................................................................................................... 13

Comment .............................................................................................................................. 13

Comment .............................................................................................................................. 14

Comment .............................................................................................................................. 14

Issues............................................................................................................................................. 14

Discussion...................................................................................................................................... 15

Whether the transfer of land of the deceased was obtained by fraud and/or deceptivecoercion?................................................................................................................................... 15

The transfer of the land ........................................................................................................ 16

Application to the facts......................................................................................................... 27

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Fraud ......................................................................................................................................... 28

Damages for destruction of Crops ............................................................................................ 29

The monies paid by the Deceased’s brothers............................................................................... 30

Order ............................................................................................................................................. 30

Introduction

1. Norma Smith is the first named defendant's niece and this matter concerns a parcel of

land leased by the State (represented by the second named defendant) which was

purported to have been transferred by Ms. Smith's mother Rosalyn Dafrosa Smith to the

first named defendant. Ms. Smith asks this court to set aside the transaction which

purported to transfer the tenancy to the first named defendant as it was done as a

result of impropriety while the first and second named defendants ask this court to

uphold the transfer.

The Claim

2. The claim was filed on December 1st 2009. The claimant in this case is the daughter and

executrix of the estate of Rosalyn DaFrosa Smith ("the deceased"). The claimant said

that the deceased suffered from diabetes, hypertension and mental illness from the

period March 1998 to February 2003. A medical report of Dr. Selwyn Rooker was

attached in support.

3. The deceased was the lessee of a parcel of state land situated at No. 70, Madras Road

Settlement (“the lands”) by reason of a Standard Agricultural Lease dated April 11th

1979 and registered in Deed No. 6453 of 1979 for a term of twenty five years

commencing from 12th March 1979 at a yearly rent of thirty dollars and eleven cents

and the lease contained an option to renew whereby the lessor covenanted to grant an

extension of the lease for a further 25 years upon the lessee’s written request made

three months before the expiration of the lease.

4. By virtue of Deed of Mortgage registered as No 17069 of 1980, the deceased mortgaged

the lands to the Agricultural Development Bank of Trinidad and Tobago (“the ADB”).

The deceased’s loan with the ADB went into arrears and the claimant’s uncle (the

deceased’s brother, Lancelot Smith who is the first named defendant) offered to loan

the claimant and her brother Jenkins Job the requisite sum to pay off the loan and

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issued a cheque in furtherance of the same. The sum was supposed to be paid back to

the first named defendant over a four to five year period, with the first named

defendant agreeing to have his then attorney, Karen E. Piper, draw up a contract to

formalize the same. The cheque was paid to ADB and a Deed of Release was given.

5. The claimant alleges that on several occasions, she attempted to contact the first named

defendant with respect to signing the contract but he was unavailable. She said that she

and her brother Jenkins, went to the first named defendant’s home to attempt to start

paying the loan and offered him five thousand dollars ($5,000.00) which he refused

saying that they were family and that the money was given to them to assist them

getting on their feet.

6. By letter dated January 5th 2004, the claimant wrote the Land and Surveys Division

requesting the renewal of the lease as required to be done within three months prior to

the expiration date. She received a response acknowledging receipt of her application

on July 16th 2004.

7. The claimant said that in February of 2004, before the termination of the lease, the first

named defendant and his brother went on to the lands with a bulldozer and bulldozed

the claimant’s pumpkin and corn crops in exercise of his assertion that the land now

belonged to the first named defendant. A police report was made by the claimant and

her siblings to this end.

8. It is the claimant's case that she was subsequently informed by Mr. Peter John of the

Lands and Survey Division that she was invited to attend a meeting on December 18th

2004 at the Land Administration Ministry’s Caroni Office at 8 am. She alleges that she

arrived at 7:30 am and waited until 10:30 am when she was told by one Ms. Jacqueline

Farrell, the relevant representative, to wait outside as she was not allowed inside. She

said that at 11 am, the said Ms. Farrell came out together with the first named

defendant, his brother Robert Smith and Devenish Smith and said that the land had

been transferred to the first named defendant.

9. On the basis of the above, the claimant contended that the option to renew the lease

constituted an offer and the Ministry of Agriculture Land and Marine Resources was

contractually precluded from withdrawing so long as the option remained exercisable

and the deceased exercised the option to renew the same. The claimant also contended

that the decision by the Ministry to transfer the land was done without due care and

attention, and in bad faith. She further contended that the first named defendant

deliberately misled or concealed the true facts from the Ministry in order to obtain the

transfer and, as such, the present lease or transfer was obtained by fraud. The claimant

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listed particulars of the said fraud. The claimant also listed particulars of trespass in

relation to the crops that were destroyed.

10. The claim before the court is for damages for obtaining property by deception, damages

for trespass of property, damages for destruction of crops, damages for breach of

covenant, damages for fraud, for the lease given to Lancelot Smith to be set aside,

aggravated damages, loss, interest, specific performance for the renewal of the lease

and such further and other relief.

Defences

The First Named Defendant’s Defence

11. It was contended that the claim disclosed no action against the first named defendant.

12. This defendant first admitted that the deceased suffered from all the ailments as

described by the claimant save for mental illness.

13. It is the first named defendant’s case that the deceased approached him and his brother

and asked them for assistance to free her from debt because her children could not

assist her and because her health was deteriorating. He claimed that he agreed to pay

off the deceased’s debt and in return the deceased would occupy the house on the land

until death and in the meantime the interest in the land would be transferred.

14. The first named defendant says that the claimant did contact him to borrow money but

at no time did he enter into any agreement, oral or otherwise, with the claimant nor did

he have any discussions with the claimant about the arrangement made with respect to

the first named defendant’s lease. This defendant said instead that he gave the claimant

the sum of $1,500.00 on January 18th 2002. In addition, the first named defendant

admitted that he and other family members attended the Land and Surveys Division on

October 16th 2002 but denied the events as detailed by the claimant.

15. In relation to the issue of the destroyed crops this defendant said that the claimant

never had any crops on the said land but when the claimant’s sister, Anora Smith,

accused him of destroying crops, she was paid the sum of $500 as compensation for the

same by Joseph Smith, the son of the first named defendant’s brother, Robert Smith.

16. The defendant therefore denied that the claimant was entitled to any relief.

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The Second Named Defendant’s Defence

17. The second named defendant filed a defence on January 06th 2009. This defendant

admitted that by virtue of a Standard Agricultural Lease registered Deed No 6463 of

1979 the deceased became the tenant of a parcel of state land and that the deceased,

by letter dated October 16th 2002, applied for a transfer of the tenancy to Lancelot

Smith and Devenish Smith.

18. The second named defendant denied that the Land and Surveys Division failed in their

duty to advise Rosalyn Smith that she needed to rescind the transfer form she

previously filled out in the first defendant’s name. While this defendant also denied that

the claimant cautioned the Land and Surveys Division against the transfer, they stated,

in the alternative, that there was no duty to inform the claimant that the deceased

needed to rescind the transfer form.

19. The second named defendant annexed a document at "N.S.6" which stated that the

deceased wished to renew the lease that was to expire on March 11th 2004 but which

did not state that she wished to rescind the offer made to the first named defendant

and to Devenish Smith. It was further stated that the claimant had no authority, in any

event, to make such a request on behalf of the deceased as the lease was not in the

name of the claimant (obviously referring to Norma Smith in her private capacity). In

addition, this defendant said that the claimant had no authority to exercise the option

to renew the lease on behalf of the deceased for the same reason.

20. Finally, the second named defendant claimed that they exercised due care and attention

and merely acted on instructions given by Rosalyn Smith and therefore the allegations

of negligence, bad faith and fraud are unfounded.

The Claimant's evidence

Norma Smith

21. The deceased died on August 01st 2005 leaving her Will dated 5 November 20041 which

was admitted to probate on August 10th 2007. In the Will, she gave devised and

bequeathed the lands to her daughters Norma Smith, Anora Vitalis Smith and Norleta

Rosanna Smith.

22. In her witness statement Norma Smith reiterated what was said in her statement of

case, that her mother who she said suffered from mental illness, diabetes and

1Exhibit #37 of the Trial bundle

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hypertension, was the lessee of the disputed land. She stated that her mother

mortgaged the said land in 1980 in the sum of $108,504.00 and took a further loan from

the bank and in total owed the ADB $217,246.83. In 2002 the mortgage went into

arrears and the first named defendant agreed to loan her and her brother, Jenkins Job,

that sum of money to pay off the loan. She and her siblings agreed to repay the first

named defendant a sum of money every three months without interest for four years.

She went on to say that the first named defendant stated that he would ask his wife

Shirley to visit his attorney Ms. Karen Piper to have the oral agreement transcribed into

a legal document.

Comment

22.1. No details were given by her of the amount of money which she and her brother

agreed to pay every three months.

23. It was her evidence that, in the meantime, she accompanied her brother to the bank

where he paid off the loan and on the following Sunday, she and her siblings attended

the first defendant’s home where the first named defendant began to read from a

document which she believed was the legal document that was drawn up. She said that

while reading it, he realized that his wife was mentioned in the agreement and he

crumbled up the agreement and promised that another agreement would be drawn up.

After that visit the claimant claims that she and her siblings made numerous visits to the

first named defendant’s home but he was unavailable on each occasion. Eventually, on

one occasion, they did meet the first named defendant at home and they attempted to

begin repayment of the loan with a cheque for $5,000.00 but he refused saying that the

money was given to them.

Comment

23.1. That cheque was not produced in evidence and the court wonders the reason for

this failure.

24. Norma Smith stated that in 2003 she visited the Ministry of Agriculture to pay land taxes

for the piece of land with her siblings but she was informed that the first named

defendant and her cousin Devenish Smith had brought her mother to the office to apply

for a transfer of the land. She said that she immediately cautioned the Lands and

Surveys Division against the transfer and she was advised to bring her mother in. She

said that she did bring her mother in and was reassured that the matter would be sorted

out. She stated that she was told to return to the office in 2004 to apply for the renewal

of the lease for the said piece of land. She claimed to return to the office on January 5th

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2004 and was told that the matter was being dealt with by the Port of Spain office. She

also indicated that she wrote the Land and Surveys Division on behalf of her mother

requesting the renewal of the said lease.

25. The claimant stated that in February of 2004, before the lease had come to an end, the

first named defendant and her other uncle, Robert Smith, entered the land and

bulldozed their pumpkin and corn crops. She said that she reported the matter to the

Cunupia and Chaguanas police stations and sought legal advice from the Legal Aid

Authority. She said that she was advised by one Ms. Petite-Tyson at the Legal Aid

Authority to continue cautioning the Lands and Surveys Division. She said she made

several trips to the Lands and Surveys Division where she spoke to Ms. Jacqueline Farrell

who told her that she wanted to meet with the deceased and she also wanted to see

the deceased medical documents.

26. She stated that she returned with the deceased in February 2004 with the medical

documents and they were advised to return in three months’ time to collect her

mother’s renewed lease. When she returned in 3 months she was advised by Ms. Farrell

to instead make an application to rescind the previous transfer. She said that on that

same date she went to the Legal Aid Authority with her mother and a statutory

declaration was drawn up but Ms. Farrell explained that there was an omission in the

declaration. A new declaration was then drawn up and submitted to Ms. Farrell.

27. The claimant further stated that she was granted a power of attorney by her mother on

29th July 2004 and thereafter she was told that she needed to attend a meeting on

December 16th 2004 at the Ministry’s Land Administration Caroni Office at 9:00 am. She

stated that on that date she, her mother, and her sisters arrived at the office at 7:30 am

to attend the meeting where she was informed at 10:30 am that the meeting was in

progress and she should wait outside. She said that at 11:00 am, Ms. Farrell, her uncles

and her cousin exited the meeting and informed them that the land was transferred.

She said that in October 2004, she accompanied her mother to the office of the

Ombudsman with her sister and a written statement was given by her mother.

Comments on cross examination

28. The claimant’s evidence under cross examination was largely in keeping with her

witness statement and statement of case but there were some inconsistencies and

things said that were worth noting:

28.1. In her cross examination, the claimant stated that the cheque made to the ADB

(which was for the sum of $217,246.83) had her brother, Jenkins Job’s, name on

it. This was proved to be incorrect;

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28.2. In addition she claimed under oath that she and her siblings visited their uncle

on Sundays but she seemed unable to say how many Sundays in total;

28.3. The value of the crops was estimated by her under cross examination at $25,000

but this was not mentioned anywhere else in evidence. She admitted however in

cross examination that this was her estimation and that no valuation was done;

when asked if her sister was paid for the crops she said she did not know

anything about that. She would neither admit nor deny the allegation that her

sister was paid for the crops and she put it “it was my crops and no money was

paid to me”;

28.4. When it was put to her by the second named defendant’s attorney that her

mother was not mentally ill, she rudely answered “Are you a doctor?” and then

gave no further response.

28.5. Finally, with regard to the document for transfer which formed part of the

witness statement of Jacqueline Farrell the court asked the witness whether she

knew anyone named Jasmine Sammy or Jimmy Ramcharan and she did not.

Jenkins Job

29. In his witness statement Jenkins Job deposed that his mother suffered from diabetes,

hypertension and mental illness. He said that in 2002, her mortgage payment went into

arrears and as a result the first named defendant agreed to loan his sister and himself

monies to pay off the loan after having several discussions with the first named

defendant for the same. He said that they came to the agreement that the siblings

would plant the land and pay the first named defendant a sum of money every three

months for four years without interest. He reiterated the claimant’s evidence that the

first named defendant said that his wife Shirley Smith would visit their attorney to have

the agreement formalized.

30. Like his sister before him, he said that in the meantime, he went to the ADB

accompanied with his sister and paid off the outstanding loan and the bank released the

property back to his mother. He said that on the following Sunday, he and his siblings

went to the first named defendant’s home where he began to read from the formalized

agreement but crumbled it up when he realized that his wife’s named was mentioned

and told them to return the following Sunday. He claimed that they made several visits

but the first named defendant was always unavailable and when they eventually met

with the first named defendants and attempted to repay the loan, he told them that he

gave them the money.

Page 10 of 31

31. It was his further evidence that in February of 2004, before the lease was terminated,

the first named defendant and his other uncle, Robert Smith entered the land and

bulldozed their crops. He said that the claimant reported the matter to the police.


32. There are points worth noting in this witness’s cross examination:

32.1. He, like the claimant stated that the cheque to the ADB was made out in his

name and this was incorrect.

32.2. He was inconsistent with the evidence of his sisters and his own witness

statement when he stated that when he got to the ADB “Uncle Lancy and Aunty

Shirley handed me the cheque”, referring to the first named defendant and his

wife. His sister’s evidence was that the cheque was given before that date.

However when it was put to him that Shirley Smith, Rosalind Smith, Robert

Smith and Lancelot Smith went to the ADB to pay the cheque he said “None of

them was there sir” and stated that it was only he and his sister who went to the

ADB.

Anora Smith

33. Anora Smith’s witness statement was very much in keeping with her siblings’ evidence.

34. She also said that in 2003 she visited the Ministry of Agriculture Land and Marine

Resources with her siblings to pay the land tax where they were informed that the first

named defendant and their cousin Devenish had brought their mother to the office to

transfer the land into their names. She said that thereafter on December 16th 2004 she,

her mother and sisters attended the Land and Surveys division at 7:30 am to attend a

meeting but were informed at 10:30 am that the meeting was in progress and that they

should wait outside when at 11:00 am Ms Jacqueline Farrell, her uncles and cousin

emerged from the meeting and they were informed that the land was transferred.

35. She said that in October 2004 she accompanied her mother and her sister to the Office

of the Ombudsman with regards to the land and surveys division’s failure to advise her

mother regarding the transfer.


36. There were points worth noting in Anora Smiths oral evidence:

36.1. This witness when asked if she was a farmer stated that she also did “nursing”.

When asked if she was a nurse, she said she did a course in nursing and was a

nurse “at the moment”. She seemed to be saying this to corroborate her

Page 11 of 31

evidence that she viewed her mother as mentally ill. Nowhere else in her

evidence was there any evidence to support this contention.

36.2. She also said the cheque was payable to her brother, Jenkins Job. Once again,

this was proven to be wrong.

36.3. This witness was inconsistent with her sister as to the dates and times of the

meetings with her uncle. She stated that the agreement with her uncle occurred

on the same day that he gave them the cheque.

36.4. When asked if her cousin Joseph gave her $500 as payment for the destroyed

crops she stated that he did not.

36.5. When it was put to this witness that she signed a receipt for the money for the

destroyed crops she stated that her uncle said that he could not remember how

to spell her name and asked her to write it down and gave her a small notebook

to write her name in.

The First Named Defendant’s Evidence

Lancelot Smith

37. The first named defendant said that around September 10th 2002 his sister the deceased

approached him and requested his assistance in paying off a debt to the Agricultural

Development Bank. He said that he decided to assist with the help of his brother and

that under the agreement with his sister she agreed to transfer the interest in the

property into his name and Robert Smith’s name. According to this witness, no

agreement was ever entered into with the claimant and he never contacted the

attorney Karen Piper to draft any agreement.

38. He said that the only money he loaned to Norma Smith was one thousand five hundred

dollars ($1,500.00) for crops to help her pay off the money owed to ADB but he

subsequently realized that she was planting her father’s land instead of her mother’s

land. The first named defendant stated that he and his brother organized the money

and the money was paid to the ADB. He acknowledged that Jenkins Job accompanied his

mother to the bank. He said that the claimant never contacted him about the transfer of

the title of the property from her mother’s name to his.


39. Under cross examination there were some points to note in this defendants evidence:

Page 12 of 31

39.1. He said he did not want to help his nieces and nephew because they turned their

back on their mother when she was ill.

39.2. He also stated that the cheque that was paid to the ADB was made out to the

ADB which as it turned out was the truth

39.3. He also stated that on September 16th 2004, he met Ms Farrell at 7 am and left

at 10 am for a meeting. This corroborated the claimant’s case in relation to the

meeting.

Robert Smith

40. Robert Smith stated that on September 10th 2002, the first named defendant told him

that his sister, the deceased, owed the Agriculture Development Bank some money. This

witness said that the first named defendant did not want to get involved but he advised

him to call the children together to help the situation and upon meeting with the

children, they indicated they could not pay, and so he and the first named defendant

decided to pay off the loan.

41. This witness went on to say that when they told the deceased that they would help her

so that she could be stress free and happy before she died, she said that she would

transfer the property into their names. He said that her children were not aware of the

arrangement.

42. It was his evidence that he, Shirley Smith, Jenkins Job and Rosalyn Smith went to ADB

and gave the cheque to the manager of recoveries department. Jenkins Job was the one

to pay the cashier as he was sitting the closest to the cashier.

43. The witness stated that after the money was paid, the title still was not transferred to

the first named defendant’s name and so on October 16th 2002 they attended the

Ministry of Agriculture to transfer the property. The witness said that Rosalyn Smith

lived with him from November 2002 to March 2003 and was not suffering from any

mental illness.

44. Finally he stated that after the title was transferred, he started to do refurbishments on

the property to clear the old corn trees from around the house and he gave $500 to his

son to pay the deceased’s daughter Anora Smith for the crops. He said that he saw his

son pay her.


45. There were some interesting points to note in the evidence of Robert Smith.

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45.1. He stated that he wanted to assist his sister and he did not want anything in

return for his help.

45.2. In cross examination he said that his brother Lancelot initially did not want to be

part of purchasing the land from his sister. In fact when asked specifically if the

intention was to take the property he said “No”.

45.3. He mentioned for the first time in cross examination that the real reason for the

transfer of the land was that the deceased had a son named Felix who lived in

Canada and who wanted to take her to Canada.

Joseph Smith

46. Joseph Smith in his witness statement simply stated that he paid the sum of $500.00 to

his cousin Anora Smith in the presence of his father Robert Smith. He said that the

money was payment for the old and useless corn crops that were destroyed when he

bulldozed the disputed land.

The Second Named Defendant’s Evidence

Jacqueline Ganteume-Farrell

47. Jacqueline Ganteaume- Farrell was the only witness for the second named defendant.

She said that at the material time, she was the Director of Land Administration at the

Land and Surveys Division. She said that Rosalyn Smith, the deceased, was a tenant of a

parcel of State land and had mortgaged the property to the ADB, a mortgage which she

defaulted on. She said that the first named defendant and Devenish Smith paid off the

loan and the deceased subsequently requested a transfer of the disputed property to

them. She said that the Ministry of Agriculture, Land and Marine Resources obtained

cabinet approval by minute 894-2004/04/01 to transfer the parcel of land to them and it

was offered and accepted.

Comment

47.1. That Cabinet minute was not produced nor was the date identified.

48. This witness went on to say that by affidavit dated May 6th 2004, the deceased sought to

rescind the transfer of the disputed property to the first named defendant and Devenish

Smith and to instead transfer the parcel to her children. She admitted that the claimant

Page 14 of 31

also sought to stop the transfer. This witness further stated that, on the advice of the

Ministry’s legal counsel, she was advised that since the affidavit was made subsequent

to the expiry of the lease, it had already progressed to cabinet and could not be

entertained.

Comment

48.1. A copy of that opinion was not provided.

49. She said that in fairness to all parties she arranged a meeting at 10:00 am on December

16th 2004 at the Ministry’s Caroni office. She said that the meeting was aborted as the

claimant did not show up. She said that when she was leaving the premises, she saw

Miss Anora Smith and Miss Norleta Smith and spoke to them. She said that she

informed them that the meeting was aborted and that the transfer was in progress. She

said that no fraud or deceit was involved on her part.

Comment

49.1. This contradicted Lancelot Smith’s evidence in cross examination that he

meeting was held much earlier as he reached for 7 am and left by 10 am.

50. In cross examination this witness was notably consistent with the evidence in her

witness statement. Of note in her cross examination however was her explanation of

the process of the transfer of the land and at what stage in the process the land transfer

was likely to be.

Issues

51. The court must consider the issues to be resolved. Unagreed issues were filed by the

parties respectively. There is no doubt that there was a request made by the deceased

in 2002 to have the lands transferred to the first named defendant and that he has

relied upon the same to exert rights of ownership over it. The questions which therefore

arise for determination from the pleadings, to my mind, are therefore as follows:

51.1. Whether the transfer of land of the deceased was obtained by fraud and/or

deceptive coercion?

51.2. Was the Commissioner of State Lands under a duty to advise the deceased

and/or the claimant about the need to rescind the transfer form when they went

to the office in 2004?

Page 15 of 31

51.3. Was the transfer of the lease by the Commissioner of State Lands done in bad

faith without due care and attention to the known facts?

51.4. Whether the claimant was entitled to damages for the destruction of the crops

of the disputed land?

Discussion

Whether the transfer of land of the deceased was obtained by fraud and/or deceptivecoercion?

52. The claimant has asked for relief in damages for obtaining property by deception. On

this issue the court will discuss all of the evidence as it relates to the transfer of the land

to the first named defendant.

53. There are two limbs to the analysis of this evidence. Firstly there was a mere suggestion

in the pleadings2 that the deceased was mentally ill. From the outset, this court has

serious difficulties with this proposition and it must be noted that the claimant's

attorney did not pursue it in his submissions. He was well advised to do so having regard

to the fact that:

53.1. It was suggested that the deceased suffered from a mental illness from March

1998 to February 2003 thereby rendering her incapable of making such a

decision to transfer the property. In support of that proposition that the

deceased was mentally incapable of transferring her land in 2002, the claimant

submitted the medical report of Dr. Selwyn Rocke. Apart from the medical report

of the doctor, the claimant and her siblings stated in their witness statements

and under oath that their mother suffered from mental illness all of which were

struck out as they were not qualified to give this medical opinion.

53.2. The medical report of Dr. Selwyn Rocke provides no details as to the mental

illness from which the deceased suffered. In fact the document presented poses

more questions than answers to the court. Not only did it not state what type of

mental illness the deceased suffered from but the report does not detail the

symptoms of her illness nor what were the changes which led the doctor to

conclude that her “mental state has resolved since May 2003.” The medical

report did not give details as to whether this particular doctor, who alleges that

the deceased was a patient of his since 1980, was the one who examined her

and determined her to be “mentally ill from March 1998 to February 2003”. It

simply stated that her control of her diabetes and hypertension caused her to

2Paragraph 6 of the Amended Statement of Case

Page 16 of 31

become mentally ill. The document appeared shoddy and haphazard and in its 5

lines does not appear in the form of a medical report. Was this doctor a

psychiatric doctor? Did the deceased see a psychiatric doctor who pronounced

her mentally ill? Was there any assessment of her mental illness other than this

document? The doctor was not called and no permission was sought to rely on

his report under Part 33 of the CPR and no reason was given as to his failure to

give evidence. Additionally, the court finds difficulty with the date of the report.

The report was dated 29th June 2004. No medical report from the period of the

alleged illness was provided. This report dated over a year after the deceased’s

mental state was allegedly resolved is the only indicator as to her mental

capacity. The court finds it more than coincidental that this report stating the

deceased was mentally ill from 1998 to 2003 was made after the claimants had

learned of the transfer of the land to the defendant and while they were in the

process of stalling the said transfer.

54. Consequently, this court disregarded this contention of mental incapacity made in the

pleadings

The transfer of the land

55. It is the claimant’s case that in 2002 her uncles took the deceased to the Ministry of

Agriculture, Land and Marine resources to get the disputed land transferred into the

name of the first named defendant and his nephew. The contention by the claimants is

that the deceased was coerced into this transfer, and the court must assess whether the

transfer was validly done.

The circumstances leading up to the transfer

56. The claimant and the first named defendant are at idem, both in their witness

statements and in oral testimony that the deceased was in debt and an arrangement

was made in order to pay of the said debt. The claimant’s case is that the defendant

offered them the requisite sum to pay off the loan and the loan was to be repaid

incrementally while they worked the land. Subsequently, they were informed that the

loan was a gift. The defendant’s case was that the loan was given to the deceased and

not to the claimant and her siblings. This evidence is particularly important to the

transfer of the land as the court must determine whether the repayment of the loan

was in some way connected to the request for the transfer of the land from the

deceased to the defendant.

57. In the defence the defendant stated that he agreed to pay off his sister's debt so that

she would die stress free and debt free, she would occupy the building on the land until

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death and her interest in the land could be transferred to the first named defendant and

Robert or to whosoever they may direct [my emphasis]. This was recited in like manner

in the witness statements given for Robert and the first named defendant. The amazing

thing, however, is that the story in cross examination was different.

58. Robert Smith was the first to give evidence for the first named defendant. In cross

examination by the claimant's attorney, he said

“Q: The intention was not to take the property?A: No”

Later on, he said in cross examination:Q: Now the extent of the arrangement you had with Rosalind was that you

would pay off the debt?A: Yes yesQ: Was that the extent of the arrangement?A: YesQ: Nothing else?A: NoQ: And you absolutely sure?A: Well we didn’t have not other arrangement other than paying off the

debt.

He later went on to say:A: You have to excuse me cuz I start to forget a great deal. There was a

transfer that took placeQ: And this bulldozing took place before the transfer?A: YesQ: So it was in Rosalind name?A: Yes I was clearing it upQ: Rosalind ask you to clear it up?A: I talk to she about it cause the place was in abandon.

Further, he went on to say to the court, in response to the claimant's attorney:Q: And when you drove the tractor no property was transferred to your

brother as yet?A: I don’t know anything about a transfer to my brother.Q: You know of any arrangement when the property was supposed to be

transferred?A: Transfer you say? I don’t know anything about any transfer.

59. In response to the second named defendant's attorney, Robert said:

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Q: You just told the court there was a transfer?A: I never tell the court there was a transfer

Then, as if to justify what he had just said, he went on:Q: Can you tell the court what you know about the transfer between

Lancelot, Devenish and your sister?A: When Lance discuss the issue with her, she say them children not helping

she and she was staying by me. She spend 5 months at my home. She hada son in Canada named Felix and he wanted to take her. So she said toLance let me transfer the place to you because I’m going to Canada andshe not coming back because I drop her with two handbags to go to StJames to meet Jenkins because she had to get a passport and visa.

Q: In your witness statement, you made no mention of Canada?A: NoQ: Why didn’t you mention going to Canada?A: I didn’t think about it at the time

60. The first named defendant sat in court for this whole debacle as he was called after

Robert Smith. When it came to his turn in cross examination, he said:

Q: And when all was said and done you decided to get the money and payADB?

A: YesQ: The reason was to help out your sister?A: That’s rightQ: Because the property was her livelihood because you say she minding cow

and pig?A: YesQ: You didn’t, at that time, you didn’t make any demands of your sister?A: NoQ: So the arrangement was for you to pay to ADB so they would not sell the

property?A: Yes I agree with thatQ: That meeting, did you go by her or she came by you?A: (Pauses) I can’t rememberQ: Paragraph 5 of your witness statement, (reads) when did that happen?A: (Pauses … long pause) I can’t recall what date.Q: What month?A: Everything take place in September but I can’t remember what day.Q: What year?A: 2002.Q: Now, this happened at your place?

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A: Well ahm… (Paused) yesQ: She came down at your house where this important conversation took

place?A: Yes sirQ: It was at your house?A: She said she would transfer. She use a word a patois word. I trying to

think how this thing….Q: I’m asking where it happen? At your house?A: NoQ: Her house?A: Yes in Chin ChinQ: So you went up to Chin Chin and she said she would transfer?A: Yes

He went on in cross examination to say:Q: You know about the document where she said she would like to apply for

a transfer of tenancy? (shows him the document "JGF 1") You know thisdocument?

A: No sirQ: You realize that is the document where she said she wanted to transfer

interest in the land to you?A: This never come across meQ: So this document is a surprise to you?A: All what I know when we give ADB to pay the money. I don’t know when

she sign thisQ: So when your wife arrange to pay the ADB the money your intention was

just to help out your sister?A: Yes cuz if we didn’t pay she would be on the streetQ: So when u pay the money the property would be hers to keep?A: Something soQ: And if it’s hers to keep she could have given it to her children?A: Yes but she come and say Lance take the property and she said what

happen happenQ: So why she tell you take the propertyA: Cuz the children turn their back on they motherQ: When she tell you that, your brother Robert was there?A: My brother Robert was thereQ: She didn’t talk about going to Canada?A: YesQ: That was before or after?

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A: The big son in Canada and he send for his mother and the mother leaveChin Chin and went down by the big sister who does do the sameagriculture. Norma and the big sister had a fight with the mother

COURT – What about Canada?A: I don’t think she go again. The big sister say to go to Canada but she

didn’t go againQ: So the big sister or big son say that?A: She didn’t go again

61. Under oath both Lancelot Smith and Robert Smith clearly stated that the money was not

given in exchange for a transfer of the property. In fact Lancelot Smith spoke of times

when his deceased sister reared pigs and worked the land and he would “bail her out”.

He stated that the money loaned this time was to bail his sister out and his brother

stated that they could not leave their sister out “on the road”. Robert Smith also gave

evidence that the money was not used for the purpose of a transfer and that they could

not leave their sister “in the road”. In fact when Robert Smith was asked “Up to the

point of walking into ADB your intention was to assist your sister” he replied “That’s

right”.

62. There is no doubt in the court's mind, having seen and heard the claimant's two uncles

(Robert and Lancelot), that they intervened in the matter to assist their sister who was

undergoing difficulties. It is obvious from their responses that there was no thought of

the land being transferred out of their sister's name at the time they moved in to assist.

On several occasions in their viva voce evidence, they expressed their frustration that

none of her children were assisting her and they impressed the court as being

concerned for their sister's welfare enough to try to secure her position on the land.

Despite what was said in their witness statements, there was no expression in their

cross examination of an interest in securing the repayment of the monies or for some

sort of quid pro quo arrangement.

63. The court does not believe the first named defendant's contention that “at no material

time did the first named defendant enter into any agreement with the claimant oral or

otherwise nor did they have any discussions with respect to the first named defendant’s

arrangement with the deceased.”3 In the witness statement of both the defendant and

his brother Robert Smith, they admit meeting with the children about the money. All

witnesses gave conflicting times of these alleged meetings but there is no doubt that

not only did these meetings occur but that the claimant and her siblings were active

3The third sentence of paragraph 8 of the first named defendant's amended defence

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participants in these meetings. Further, if there was no agreement then why was Jenkins

Job present on the day that the arrears and loan at ADB was repaid? The court does not

believe that evidence of the first named defendant that the only reason Jenkins Job

handed the cashier the cheque was simply because he was the closest to the cashier.

Why would he have been there in the first place? To my mind, this is indicative of the

uncles being aware that they were assisting their sister and including her, through her

children, in the process.

The request for the transfer – 16 October 2002

64. According to Robert, the deceased accompanied him to the Ministry of Agriculture on

16 October 2002 to transfer the property.

65. This document was put in by consent as "JGF 1". That is not a document that was

disclosed and it only surfaced at the trial. The original of it was not produced.

Ordinarily, part 28.13 of the CPR would apply but the court allowed the document to be

put in with the consent of the parties.

66. The document was typewritten and stated as follows:

“Elliott TraceMadras Road,Chinchin Cunupia

October 16, 2002,

The DirectorRegional Administration NorthFarm RoadCurepe

Dear Sir,

I Roslyn Smith of the above address would like to apply for a transfer of tenancyto my brother Lancelot Smith and my nephew Devenish Smith due to my illhealth, I am unable to cultivate the plot #008 Madras Road/Elliott Trace andSurrounding. Thank You.

Respectfully yours,

/s/ Roslyn SmithRoslyn Smith

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67. The document was witnessed by 2 persons – Jasmine Sammy and Ricky Jimmy

Ramcharan. Those parties did not give any evidence in this matter and no explanation

was given by anyone as to who they were. It was never suggested by anyone to anyone

that that was not the deceased's document so that the veracity of the document was

not in issue despite the court's own concern.

68. However, certain comments have to be made with respect to that document.

69. In the defence, the first named defendant said that he and other family members did go

to the Lands and Surveys Division on October 16th 2002. Yet, he never stated that in his

witness statement and when he was questioned about the document, the 1st named

defendant said that he had never seen that document before. In fact, his exact words

were as follows:

Q: You know about the document where she said she would like to apply fora transfer of tenancy? (shows him the document) You know thisdocument?

A: No sirQ: You realize that is the document where she said she wanted to transfer

interest in the land to you?A: This never come across meQ: So this document is a surprise to you?A: All what I know is when we give ADB to pay the money. I don’t know

when she sign this.

70. Therefore, it is passing strange that this witness would have pleaded that he was

present at this meeting on October 16th 2002 yet, in cross examination, he virtually

disavowed himself from any knowledge about that request for the transfer. Further,

the document makes absolutely no mention of any loan/payment by the 1st named

defendant and his brother to or on behalf of the deceased. The reason given in this

request for the transfer was her ill health.

71. At this point, it is worth noting that the original lease dated 12 March 1979 provided the

following covenant by the Lessee at paragraph 2 (12):

(12) Not to assign or sublet or part with the possession of the demisedpremises or any part thereof and/or any building therein without theprevious consent in writing of the Lessor first had and obtained.

72. No consent was ever produced or provided for that transfer, which would qualify as an

assignment, so that there is absolutely no doubt that, despite this alleged visit on

October 16th 2002, up until the expiry of that lease on March 11th 2004, the deceased

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was still the lessee – and this was recognized at least by Robert. In any event, the

request was a mere request and could not have properly assigned the remainder of the

term.

73. The lease also provided an option to renew at paragraph 3 (2) for a further term of 25

years at a rent to be determined by the lessor and upon the terms and conditions set

out therein.

74. There is absolutely no evidence from the claimant to support the allegation that there

was any deception or fraud. The legal burden for proving impropriety of this nature

resides with the claimant and, even though the standard is a balance of probabilities,

that standard lies towards the higher end of the spectrum4.

75. Consequently, there is no basis for this court to make a finding of deception or fraud.

The steps taken by the Claimant and the Deceased

76. Notwithstanding the existence of that document, the claimant says that upon learning

of the transfer in 2003, she cautioned the Lands and Surveys Division against the

transfer and further, by letter dated January 5th 2004, she wrote to the Director of

Surveys requesting the renewal of the lease and signed on behalf of her mother within

the prescribed three-month period for indicating intention to exercise of the option to

renew. By letter dated July 16th 2004, the claimant received a response to her letter

confirming that the application was being considered. The claimant also detailed visits

with Ms. Jacqueline Farrell in 2004 in an attempt to rescind the previous transfer

request and, to this end, two statutory declarations5 dated May 5th 2004 and May 6th

2004 were signed by the deceased. The latter declaration specifically said that the

deceased wished to "rescind any previous request for transfer to Lancelot Smith and

Devenish Smith made on the 16th October 2002".These facts were not disputed by the

defendants.

The steps taken by the Second Named Defendant

77. The second named defendant's position is that the transfer of the lease having been

initiated, the process could not be stopped and had to proceed unabated although no

explanation was given for this assertion.

78. The second named defendant’s witness – Jacqueline Ganteaume-Farrell- attended court

and gave a witness statement to which she failed to exhibit any document whatsoever.

In her witness statement, she related a history at paragraph 3 in relation to the

4Hornal v Neuberger Products Ltd [1957] 1 QB 247, [1956] 3 All ER 970, CA

5See "NS 6" to the claimant's witness statement.

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mortgage of the subject property which was obviously gotten from hearsay statements

and which contained information which was incorrect. In particular, she said that the

payment in respect of the arrears of the mortgage was made by Lancelot Smith and

Devenish Smith which is contrary to what Robert and Lancelot Smith said.

79. This witness referred to a cabinet approval set out in a cabinet minute which was not

produced for the court’s attention. She also referred to a letter of offer dated May 4th

2004 which was also not produced. She then went on to refer to advice from the

Ministry's Legal Counsel which was not produced and once again referred to

inadmissible hearsay. That advice was that because the deceased's declaration

(incorrectly referred to in Mrs. Ganteaume-Farrell’s witness statement as "affidavit")

was made subsequent to the expiry of the lease and since the matter had already

progressed to cabinet approval, that the deceased's petition should not be entertained.

Mrs. Ganteaume-Farrell went on in her witness statement to try to introduce an

element of fairness on her behalf by arranging a meeting on December 16th 2004 –

some 7 months later (no reason was given for the inordinate delay) – which was

aborted due to the alleged late attendance of three of the deceased's daughter's

including the claimant. It must be noted that the claimant disputed this allegation of

their late arrival and asserted instead that they had arrived on time but were kept out of

the office and were not allowed to attend the meeting. Mrs. Ganteaume-Farrell’s

account of the timing of the meeting did not accord with the first named defendant’s

account as mentioned above.

80. Be that as it may, no explanation is given as to how much notice the parties had for this

meeting and why another date was not fixed.

81. The court must state at this juncture that Mrs. Ganteaume-Farrell was not an impressive

witness at all. One would have expected that she would have attended court with the

relevant file to assist the court with the documents but that was not done nor was it

disclosed what other documents were in that file. The explanation of her failure to

accede to the deceased's request was unimpressive and quite baffling. Here was a party

to an existing lease, writing through her daughter, on January 5th 2004 exercising the

right of renewal and then signing a declaration before a Commissioner of Affidavits and

Justice of the Peace confirming her revocation of a previous unsubstantiated and

uncorroborated document and her response was that it was too late? The new lease

had not yet been signed. Why was it being given to another party? What made the

Cabinet note irrevocable? If the decision to grant the lease to another party was made

solely on the basis of the “letter” of the 16th of October 2002, then that could not

possibly be read and considered in isolation but regard had to be had of the revocation

and the several attempts to meet her earlier.

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82. Up to the time that she left the employ of that particular division in 2005, the new lease

had still not been signed. For the entirety of the trial before this court, no such lease

was ever produced. So to my mind, the empty statement that it was too late to stop the

process seems rather vacuous, unconscionable and unnecessarily bureaucratic typifying

an obviously dogmatic approach to a real problem between the parties. It has to be

noted that the problem was identified by her – though very late in the day - as

exemplified by the meeting carded for December notwithstanding having been notified

by 2 declarations since May of that same year of the deceased's intention.

Discussion of the position of the State

83. The lease between the State and the deceased would have fallen under the provisions

of the State Lands Act Ch.57:01 which empowers the Commissioner of State Lands to

grant leases in the circumstances of this case6. Whereas there is no contractual duty of

care, it seems rather unconscionable for the State, which basically holds the lands of the

Republic of Trinidad and Tobago in trust for its citizenry, to refuse to pay heed to and to

treat with due diligence and consideration a legitimate request from one of its lessees.

84. The second named defendant has suggested in its defence that the second named

defendant was not under any duty to inform the claimant that the deceased needed to

rescind the transfer form. The second named defendant also claimed that they

exercised due care and attention and merely acted on instructions given by Rosalyn

Smith and therefore the allegations of negligence, bad faith and fraud are unfounded.

85. This court has a serious difficulty with this proposition. This was an agricultural lease.

The court is of the respectful view that, quite often, the tenants of agricultural lands

tend to be simpler folk and the evidence before this court is that the deceased did not

seem to have been a person who had academic qualification. That, with the greatest

respect, may be typical, to the larger extent, in relation to agricultural land leases from

the state, to my mind. But even if that were not so, it should make no difference.

86. This court is of the view that there is a duty upon the State to inform the citizenry of the

processes and procedures for accessing its services in a clear and comprehensible

manner. There ought to be no mystery or magic in the way that state agencies or

authorities operate or the processes or procedure for accessing the services of those

agencies or authorities. These agencies and authorities operate, to my mind, for the

benefit of the citizenry and the State.

6State Lands Act section 7

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87. There is a constitutional right under section 4 (d) of the Constitution which provides as

follows:

“(d) the right of the individual to equality of treatment from any publicauthority in the exercise of any functions;”

Consequent upon that right is a prohibition under section 5 of the Constitution which

provides that Parliament cannot deprive a person of the right to such procedural

provisions as are necessary for the purpose of giving effect and protection to the

aforesaid rights and freedoms.

88. If that is the intention of the framers of the Constitution, to allow every individual the

right to equality of treatment from a public authority, then every individual must know

how that public authority exercises its functions so that he/she can determine whether

his/her treatment has been fairly dispensed. It ought not to be shrouded in secrecy so

that only those who are able to unravel the layers of procedural and bureaucratic

fortifications by some mysterious knowledge, known only to a privileged few, should

have access to the public authority’s functions. Equality of treatment necessitates

equality of information.

89. To my mind, it ought to be the duty of every State agency and authority to provide

assistance to individuals seeking to access its services on a one-to-one basis via

personnel dedicated to answering questions relating to procedural and general matters

along with brochures and information packages and, where appropriate, Internet access

to all of this information. Public officers, such as Mrs. Ganteaume –Farrell, ought to be

accessible to the public, whether directly or indirectly to answer their questions and

address their concerns in a timely manner. It seems rather ironic that Mrs. Ganteaume –

Farrell could have cried “Time” when she and her department failed to recognize the

very same commodity.

90. In this case, this court cannot agree that the second named defendant was under no

duty to advise the deceased as to what steps she had to take if she wished to change

her mind about the instructions she had given previously. The mere fact that she gave

instructions on a document which, to my mind, none of the witnesses for the first

named defendant have been able to substantiate or even corroborate as none of them

seem to know who these witnesses were or who prepared the document or even to be

aware of the document itself, was not the end of the matter. The undisputed evidence is

that the deceased returned on more than one occasion to revoke those instructions and

she was given the runaround. State authorities cannot adopt an obstructionist stance.

To my mind, they ought to be of assistance, to the best of their ability, so that a citizen,

Page 27 of 31

an individual protected by the Constitution, can properly and fairly obtain the services

which that particular public authority has been instituted to provide.

91. Once again, the undisputed evidence is that up until that time of this trial, no lease had

as yet been granted to the first named defendant so what would have prevented the

relevant authorities from considering the deceased’s several requests and resolving it? If

they failed to arrive on time at the very first meeting convened for the purpose of

sorting this matter out, what prevented the relevant authority from rescheduling a

meeting to another day? No prejudice could have been suffered by any party in

adopting that approach rather than the unreasonable approach adopted by the relevant

officer to summarily dismiss the deceased’s request – a “nuclear option”7 in the

circumstances - and proceed to confirm the transfer of the lease in circumstances where

the person requesting the transfer quite clearly had revoked such request.

Application to the facts

92. The lease has not yet been concluded. The defendants do not dispute that the claimant

immediately after hearing of the impending transfer cautioned the Lands and Surveys

Division, nor did Miss Farrell in her evidence dispute that she spoke with the claimant

about the rescission of the transfer. In fact, in Mrs. Ganteaume-Farrell’s witness

statement, she acknowledged that the deceased, on May 6th 2004, sought to rescind the

transfer of the lease. Although this document was made after the expiration of the

lease, the claimant on behalf of the deceased had requested a renewal of the lease by

letter dated January 5th 2004, an option that was covenanted to the deceased as a

tenant in the original lease.

93. This court finds therefore that the affidavit made in May 2004, albeit after the expiry of

the lease, and the request made on January 5th 2004, prior to the expiry of the lease,

should stand as a valid revocation of the request to transfer the lease and a proper

request for the renewal of the lease in the name of the estate of the deceased. Indeed it

was also not disputed by the second named defendant that the claimant received a

response in July 2004, well after her affidavit objecting to the transfer was made,

acknowledging her request for renewal. To my mind, the claimant could have

reasonably concluded that the transfer would be rescinded due to this fact.

94. To add to the above, Mrs. Ganteaume-Farrell, previously of the Land and Surveys

Division, arranged a meeting on December 16th 2004. It is the claimant’s evidence that

7See the words of Lord Mance in the Privy Council decision of Real Time Systems Ltd. v. Renraw Investments Ltd

& ors in relation to this court's dismissal of a claim on the basis of the failure to properly particularize that claim.

Page 28 of 31

she and her siblings arrived to the meeting only to be excluded, while it is the evidence

of the first and second named defendants that the claimant and her siblings arrived late

to the meeting and the meeting was therefore aborted. Regardless of who was present

at the meeting, the fact is that there was a meeting which calls into question what was

supposed to be done at this meeting? Was Ms Farrell going to consider halting the

transfer at this meeting? Even if the claimant did arrive late as was the first named

defendant’s evidence, by all accounts she did arrive. Miss Farrell in her witness

statement stated that she arranged the meeting “in fairness to all parties” even though

she received counsel that since the matter had already progressed to cabinet it could

not be entertained. Again the claimant could have reasonably concluded that the

transfer of the land would be rescinded or that there was consideration to that end,

otherwise what other purpose would this meeting have served?

95. Mrs. Ganteaume-Farrell stated that by December 2004 the transfer was in the hands of

Cabinet, but was it in the hands of the Cabinet in May 2004 when the affidavit was

made? The second named defendant did not give evidence of this allegation. If it was

not, then the court must consider whether it would be equitable for the claimant to be

excluded from the land even after an affidavit was made to rescind the transfer possibly

before that transfer was in the hands of the Cabinet.

96. The court, considering all the facts pertaining to the transfer finds that this land was not

sold to the defendant nor was there an agreement to transfer the lands in consideration

for the liquidation of the ADB arrears. There was a request to transfer the land to the

first named defendant by his deceased sister. For whatever reason, the deceased

changed her mind and applied to renew the lease and rescind the transfer mere months

after the initial request for transfer was made. The agents of the second named

defendant, through their correspondence and actions, gave the claimant a reasonable

expectation that the rescission would be done and on this basis the court cannot allow a

new lease to be granted to the first named defendant but, rather, the lease should be

renewed in the name of the persons designated by the deceased in her Will.

Fraud

97. The claimant pleaded particulars of fraud as follows:

97.1. The first named defendant deliberately misled and/or concealed true facts from

the Ministry of Agriculture, land and marine resources, Land and Surveys

division, in order to obtain the said piece of land;

97.2. The first named defendant maliciously deceived the claimant and her brother

Jenkins Job into accepting monies with the intention to permanently defraud

Page 29 of 31

and deprive them of their rightful interest of the said piece of land, under the

deception and pretence of trying to assist them

97.3. That the present lease was obtained by fraud and/or under false pretences and

should be set aside.

97.4. The first named defendant maliciously deceived and/or coerced the deceased

into signing a transfer form effectively transferring the said piece of land into the

first named defendant’s name knowing that the deceased had a history of

mental illness and could not make coherent and informed decisions.

98. While speaking specifically to registered land, Wooding CJ stated in Roberts v Toussaint

and Others (1963) 6 WIR 431 “fraud means some dishonest act or omission, some trick

or artifice, calculated and designed to cheat some person of an unregistered right or

interest.” This case does not involve registered or RPO land but the definition of fraud

by the former CJ may be deemed applicable in the circumstances and the claimant

would have to satisfy the court that the defendant dishonestly calculated and designed

to cheat the deceased and/or the claimant of the leasehold land.

99. The court has already dealt with the mental illness factor and has already determined

that it does not come into play and the evidence of the alleged mental illness was not

insufficient. There is no other evidence before this court that would lead me to conclude

that the brothers fraudulently attempted to trick their sister into transferring the land

and therefore no damages as to fraud arises.

Damages for destruction of Crops

100. The claimant’s case is that the crops on the disputed land that was planted by the

claimants was destroyed by the defendant’s brother and nephew. The claimant also

claimed that Anora Smith as made to sign a blank page under false pretences that her

uncle wanted to know how her name was spelled. Norma Smith has stated that she was

unaware of the $500.00 compensation for the crops while Anora Smith under cross

examination stated that it was the first time she had heard of being paid $500.00 for the

crops.

101. The defendant on the other hand stated that there were minimal crops on the land and

they paid to Anora Smith $500.00 for whatever crops were destroyed. To this end a

receipt was drafted in a receipt book.

102. The court finds that the evidence of Anora Smith that she was made to sign on a blank

page in a notebook highly improbable. The receipt as presented before the court was

signed by Anora Smith and she has accepted that it is her signature. It is on a numbered

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page suggesting that she would be aware that her signature was not being places in a

mere notebook. The court also considers the placement of the signature. The signature

is places immediately after “received by” in the receipt book. Is the court to believe that

Anora Smith being given a blank page signed in the middle of the line leaving

precariously just enough space for the words “received by”? The court simply does not

accept this evidence and as such no damages for the destruction of crops arises.

The monies paid by the Deceased’s brothers

103. The claimant’s evidence in this regard was that the sum paid to liquidate the ADB

arrears was a loan. The first named defendant’s evidence was that it was payment for

an agreed transfer of the lease. This court has already found that the latter explanation

is not borne out by the evidence. There is no doubt that there were inconsistencies on

both sides but the court accepts that the claimant’s explanation is a more probable one

in the circumstances. It also seems fair for this court to reach to a finding that the

claimant and her siblings had agreed to repay the monies advanced by their uncles.

104. Consequently, this court is prepared to accept that there was an agreement that the

monies would be repaid over the course of a four to five year period. The terms of the

repayment were not stated and are therefore indefinite and there was no mention of

interest. This court cannot write a contract for the parties. However, it seems unfair for

the first named defendant and his brother to have paid this sum and have been

deprived of their money for so long – since 2002. On the other hand, it is conceivable

that the claimant and her siblings would have depended on the lands to generate the

money to repay the sum and, having been deprived of the land, ought not to be made

to pay interest. Consequently, the court will award no interest on the principal sum

once repaid within the period. In this regard, the court is of the view that the term of

four years is reasonable in the circumstances.

Order

105. Having considered the pleadings, the evidence and the submissions, this court hereby

orders that:

105.1. The second named defendant renew the lease for the land comprising Two

Hundred and Eighteen Thousand Seven Hundred and Thirteen superficial feet

(218,713 s.f.) or Five Acres and Three Perches situate at Lot No 70 Madras Road

settlement in the name of Norma Smith, Anora Vitalis Smith and Norleta

Rosanna Smith who are the daughters of the deceased and the parties entitled

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to the estate of the deceased under her Will pursuant to the option to renew

granted in the original lease and cancel any other lease issued in respect of the

lands.

105.2. The first named defendant do deliver up possession of the lands to the said

Norma Smith, Anora Vitalis Smith and Norleta Rosanna Smith.

105.3. The said Norma Smith, Anora Vitalis Smith and Norleta Rosanna Smith along with

their brother Jenkins Job do repay to the first named defendant and Robert

Smith the sum of Two Hundred and Seventeen Thousand, Two Hundred and

Forty Six Dollars and Eighty Three cents ($217,246.83) within four years of being

given possession.

105.4. In light of the fact that this is a family matter in which the first named defendant

and his brother Robert attempted to assist their sister who was in financial

trouble out of their sheer concern and love for her and the fact that they have

been out of funds since 2002, this court is of the view that it would be

unconscionable to award costs against them, especially since the claimant has

not been able to prove any deception or fraud on their part. The same goes for

the claim for damages. However, the court is of the view that the actions of the

State in failing to properly handle this matter and to resolve the issues between

the parties in a manner in which it ought to have having regard to its role and

function in relation to State lands as stated above and for adopting an

unreasonable obstructionist role in failing to honor the deceased’s request for

revocation, the court is of the view that the second named defendant should pay

50% of the claimant’s prescribed costs quantified by the court in the sum of

$7000.00.

.......................................................Justice Devindra Rampersad

Documents

THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT …webopac.ttlawcourts.org/.../cv_07_02565DD27mar2014.pdf · CV 2007-02565 BETWEEN NORMA SMITH (AS EXECUTRIX OF THE ESTATE OF