Collymore v George
| Jurisdiction | Guyana |
| Judge | Ramson, J.A.,Chang, C.J. |
| Judgment Date | 28 April 2008 |
| Neutral Citation | GY 2008 CA 3 |
| Docket Number | Civil Appeal No. 12 of 2004 |
| Court | Court of Appeal (Guyana) |
| Date | 28 April 2008 |
Court of Appeal
Chang, C.J. (Ag.); Ramson, J.A.; Cummings-Edwards, J.A.
Civil Appeal No. 12 of 2004
Mr. M. Bacchus for the appellant.
Mr. M. Crawford, SC for the respondent.
Real Property - Declaration of beneficial ownership — Deeds Registry Act Cap. 5:01 — Legal representative purported to appear on behalf of litigant who was not present in court — Refusal of request for adjournment — Whether refusal of adjournment proper exercise of judicial discretion — Whether law of trusts established in Guyana Civil Law jurisprudence — Whether the respondent a trustee for the appellant — Order of trial judge that a trust was created in favour of the Respondent affirmed, subject to rights of mortgagee acquired prior to commencement of the action.
Page 6 – 3rd para. — 3rd line — insert after “ours” — (see Hadmor Productions v. Hamilton [1983] 1 A.C. 191 at p. 233.
Page 11 – 3rd para. 12th line — insert after “equity.” — “Thus De Lolme said that courts of equity as then existing in England had a legislative function. They are, he said, a kind of inferior experimental legislative, continually employed in finding out and providing law remedies for those new species of cases for which neither the courts of Common Law, ‘nor the legislature have as yet found it convenient or practicable to establish any”
[See The Constitution of England, New Ed. (1800) p. 1491 per Mathew, J. in Indira Nehru Gandhi v. Raj Narain (1975) Supp. SCC at pp. 122–3.
Page 16 — Insert after the words “party to succeed…” — Further, Dr. Ramsahoye also re-iterates at p. 282 of his Book (supra)
“Equity has intervened to set aside transactions tainted with fraud, King v. Bissember & McDavid (1951) L.R.B.G. 107 and it has not allowed conveyancing statutes to be used as a shield and protection against fraud: Baynes v. Prince (1949) L.R.B.G. 99; See also Nelson v. Odle (1939) L.R.B.G. 24.
Dated this 23rd day of July, 2008
Ramson, J.A. delivered the Judgment of the Court: [ Chang, C.J. (Ag.) dissenting:
This appeal raises a commonplace concern with respect to the interrelationship between parents and their scions in whose names immovable property is conveyed by purchase, or transfer simpliciter. The agony of any, if not all disputes, culminates in litigation with an outpouring of emotion which further divides the parties, whatever the ruling of the Courts. Along the journey of life, relationships constructed on the basis of trust that ought to be milestones are fractured by greed, covetousness, diabolical selfishness and not infrequently, inexplicable intransigence. Paradoxically, it is the Law of Trusts to which the Courts must turn in a bid to rescue the aggrieved party if the picayune beneficiary was to be divested of his/her benefactor's ci-devant property. Tyndall v. Tyndall (Civil Appeal No. 32/94) and Ramnarace v. Somdat Pirtam (Civil Appeal No. 13/2002) are two such cases, and though dissimilar in factual contents, raised not dissimilar jurisprudential polemics.
The ancient County — Berbice — was once home to a quaint rural community in the early 1980's, and two of the litigants in this appeal formed part of that environment. The 2nd named defendant in the action out of which the instant appeal arose is the only daughter of the respondent whose culture prompted her to give her, as she put it, “the first preference to look after my business”. The 1st named defendant therein, and sole appellant herein, is the son-in-law of the respondent and, from all appearances hailed from or resided in Plaisance on the East Coast of Demerara, or in Georgetown. Even after his marriage to the respondent's daughter he infrequently visited his wife who shared rented accommodation with the respondent in Berbice, both at Theatre Alley and 36 Stanleytown, New Amsterdam,!, the purchase of latter in 1983 becoming the bone of contention in the instant litigation.
The trial judge was confronted with only one version of the dispute as to the beneficial ownership of the property owing to the absence or failure of the defendants to attend, the legal title being in the name of the appellant herein. According to the plaintiff, in short compass and removing the chaff from the grain, the 2nd named defendant was married to the appellant in September 1979 while they were living at Threatre Alley in New Amsterdam, Berbice but in 1980 or 1981 she and her daughter moved into rented accommodation at lot 36 Stanleytown, New Amsterdam. In 1983 she gave the appellant $1000(US) to make a down payment on this property and when she ‘went to the USA as a result of the sponsorship by her brother she sent the balance to pay off for the property. Owing to its condition, the building was demolished and a new wooden house was erected in its place. When she returned in 1989 i.e. 6 years after, transport was obtained in the, appellant's name unbeknownst to her, following an application to the Court under s. 35 of the Deeds Registry Act, Cap. 5:01, and she observed that the house was built with kabakalli although she had wanted it constructed with greenheart and crabwood — a combination that was much in vogue to the cognoscenti at that time. Renovations were also done, with moneys sent by her and handed over to the defendants, to her satisfaction, as can be seen from pictures taken by the defendants in 1990, 1994 and 1995. Some of these sums were brought to Guyana by her son, Mervyn, and receipts were also produced for the years 1992 to 1997 during which time sums of money were sent to one or other of the defendants. Sponsored in turn by the respondent, the defendants joined her household in the USA in 1997, triggering a series of disputes culminating in her discovery upon her next visit to Guyana in 1999 that the aforementioned property was in the name of the appellant. On the 24th December 1999, well within the period delimited by s. 22 of the Deeds Registry Act, CAP. 5:01, the respondent filed an action seeking, inter, alia, a declaration that she was the owner of the property. Counsel were retained by the defendants and pleadings were duly filed.
In December 2003 she returned from the USA to give evidence in the aforementioned action. But the defendants who were likewise resident overseas, notwithstanding several notices addressed to them and their retained attorney-at-law, chose not to attend court but one witness, their attorney, gave some evidence, though not material to a successful resolution in their favour. Barring any negative impression the learned trial judge might have gleaned from the testimony of the witnesses for the respondent he had little alternative but, and I daresay, was constrained, to grant her the requisite relief. From this order the appellant has filed the instant appeal.
This court raised with counsel for the appellant the question of his appearance in the light of the fact that other counsel were on record in the High Court and he readily advised that he had filed a notice of change but had not included it in his file he brought with him. In the best traditions of the Bar this court accepted his word from the Bar table (see Peroumal v. Queen Vol. 9 #4 CLB October 1983), bearing in mind “that he is subject to the inherent summary jurisdiction which the Supreme Court has over solicitors” (now attorneys) per Crane, J.A., as he then was, in S.M. Thomas v. H.A.: Thomas [1969] G.L.R. 558 at p. 564. He then submitted in response to another suggestion of this court, that in any event he was in no less a position than counsel was when he appeared in this Court of Appeal at the hearing of Gladston Watson v. Rosedale Fernandes (Civ. App. #. 42 of 2004), the result of which was now governed by the ruling of the Caribbean Court of Justice, the citation for which is (2007) CCJ 1 (AJ). The ratio decidendi in this case in effect appears to suggest that the decisions in Ramgobin v. Persaud (Civil Appeal # 18 of 1996) and Re: American Life Assurance Co. Ltd. (Civil Appeal # 8 of 1996) which formed the basis of the suggestion made by this Court, were too widely cast since there was no provision in the Court of Appeal Act or Court of Appeal Rules, Cap. 3:01 requiring counsel to file a written authority to act in the Court of Appeal as a representative of an appellant if he was not on record in the High Court.
This Court is bound by the principles and Orders emanating from our regional final court and, out of deference for its authority, the appeal was allowed to proceed. However, it is worthy of note that the CCJ sought to rely primarily upon Order 1, r. 6 of the Court of Appeal Rules which provides that “… any person who has been called to the English, Irish or Scottish Bar to practise as a Barrister and has the right of audience before the Supreme Court” may represent an appellant before the Court of Appeal particularly where, in the case before their Lordships, the legal representative did have the actual authority of the appellant. With every respect to their” Lordships, it would appear also that this ruling has left in limbo, quite unwittingly, the situation where there is no evidence that the legal representative purports to appear on behalf of a litigant who is not present in court, especially since there is no requirement under the Court of Appeal rules for him to be physically present. For the establishment of some greater measure of certainty, perhaps the time has come for the legislature to intervene to address this curial imbroglio.
Counsel for the appellant, advanced amended grounds which warranted the attention of this Court, these being necessary in the light of the bare and unhelpful grounds appended to the Notice of Appeal. His first major concern was the failure of the learned trial judge to grant an adjournment to accommodate the then Counsel for defendants' request for them to be given a further opportunity to return to Guyana for the purpose of...
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