The Caribbean Court of Justice (CCJ) yesterday ruled that two Mahaicony land titles were obtained by fraud and should therefore be cancelled.
The court in its judgment in the case filed by Chandra Ramotar Singh against Bhagwantlall Mossai and Alvin Alves concerning land at Lot 14 Mortice, Mahaicony River found that the appellant had the capacity to commence court proceedings for trespass and fraud, that he was not out of time for filing his 2003 action and finally, that High Court Justice James Bovell-Drakes was correct in cancelling the fraudulent titles.
Further the court, in deciding on an important point of procedural law, ruled that the Court of Appeal of Guyana “had no power to extend the time for the filing of an application in that Court for permission to appeal to the CCJ.”
The Trinidad-based final appellate court in a press release yesterday said that the court earlier in the day held that two land titles obtained by Mossai and Alves should be cancelled because they were obtained by fraud.
It was explained that although Singh did not have official title, he was in occupation of the land in 1989 when he agreed to buy the land from some of the heirs of the previous owner. The release explained that unknown to him, Alves, Mossai and his brother, Ramrattan Mossai, had conspired to defraud him.
In 1994, Alves applied to the Land Court for title and fraudulently claimed that he was in possession of the land. The Land Court, being unaware that Singh was the person in possession, granted Alves a declaration of title. Alves then sold the land to Mossai, the release said adding that when Singh became aware of these activities, he filed court proceedings against both men in in 2003.
In those proceedings he claimed damages for trespass and fraud but did not seek the cancellation of the fraudulent titles. Nevertheless, the trial judge, Justice Bovell-Drakes, having found fraud on the part of Alves, Mossai and Ramrattan Mossai, cancelled the fraudulent titles.
The CCJ in its release said that the Court of Appeal in Guyana, by a majority, then declined to cancel the fraudulent titles, because among other things, Singh had not asked for them to be cancelled in his claim and because the claim was out of time. It was pointed out that Justice Yonette Cummings-Edwards, who was Acting Chief Justice at the time, did not agree with the majority.
Whether Singh’s failure to seek a cancellation of the fraudulent transports prevented the trial judge, Bovell-Drakes from setting aside the transports was one of the matters addressed by the CCJ.
In its decision yesterday, it noted that Cummings-Edwards CJ (Ag) relied in her minority judgment on the Rules of the High Court Order 23 rule 4. The CCJ noted that she was of the view that one consequence of the finding of fraud by the trial judge was the setting aside of the fraudulent transports. Accordingly, she found that the absence of a specific request for cancellation by Singh was no bar to the grant of relief for cancellation by the trial judge. She contended that fraud was always a live issue in the case and therefore there was ample notice to the Respondents as to the ambit of the case. Order 23 rule 4 provides that –
“Nothing in these rules shall be construed to prevent the Court from giving effect to any point of law appearing on the record or at the hearing of any action or matter although not raised by either party in his pleadings or otherwise.”
The CCJ concurred with Justice Cummings-Edwards’ view.
The CCJ also addressed the arguments that had been made by counsel for B Mossai and Alves that Singh had only one year from the discovery of a fraudulent transport to have it declared void and was out of time in this respect.
In relation to actions for setting aside a transport for fraud, the CCJ noted that the proviso to the section is clear. The limitation period is triggered by the discovery of the fraud. Accordingly, Singh had to commence his claim within twelve months after such discovery.
The CCJ said “We understand this to mean that there must be actual knowledge of the fraudulent acts committed by the Respondents and not mere knowledge of the passing or existence of a transport. This accords with the judgment of the majority of this Court in Ramkishun. Wit J CCJ, delivering the judgment of the majority, pointed out that in Roman-Dutch law the relevant notice or knowledge was strictly limited to actual knowledge. He further observed that unlike English equity, Roman-Dutch law has never accepted the doctrine of constructive notice, as that would require the recognition of equitable rights and interests in immovable property which was a concept repugnant to Roman- Dutch law and the law as it stood in Guyana as this Court had confirmed in Ramdass. In Kwang, this Court was of the view that the facts of the case triggered the operation of the proviso to section 22(1) in that both appellants had actual knowledge of the existence of the prior agreement for sale to the respondent. In addition, the Court observed that under Roman-Dutch law a person could not lose the right to oppose the passing of transport unless he had actual notice of the passing of transport.
“In our view, therefore, the term `discovery of the fraud’ in section 22(1) required actual knowledge on the part of Singh of the fraudulent acts of the Respondents. The Respondents’ fraud as the trial judge found, and which has not been disputed, was the conspiracy among Alves, Mossai and Ramrattan to defraud Singh of the land by initiating fraudulent proceedings for prescriptive title through Alves’ 1994 Petition. We must therefore consider from the evidence before the trial judge when Singh had actual knowledge of that fraud and whether the May 2003 action was brought within twelve months of his acquiring that knowledge.
“At the trial, Singh testified that in the year 2000, he saw Alves and Mossai going in the direction of his land. He stopped them and Mossai told him that it was `his transported land.’ Singh then went to the Mahaicony Police Station to make a report but when he returned, he found no one. Singh also testified that he was served with a letter dated 3 May 2000 from the law firm Luckhoo & Luckhoo that informed him that Mossai was owner of the land by transport and demanded that Singh give vacant possession. He further testified that he did not ignore the letter, but he took it to his attorney who replied to Mossai’s attorney. The letter in response however was not put into evidence. At the hearing before us, (attorney) Mr Satram undertook to obtain a copy of that letter and to forward it to the Court once it was available. The letter has not been sent to the Court.
“Singh further testified that Ramrattan served him with `court proceedings’ in the year 2000. This was the 2000 Writ of Summons issued on behalf of Mossai … It is not disputed that the Writ of Summons did not make reference to the application for prescriptive title filed by Alves in 1994 that contained or evidenced the fraudulent material. Singh’s knowledge of the 2000 Writ therefore could not amount to actual knowledge of the fraudulent acts of the Respondents nor support the Respondents’ contention that Singh had discovered the fraud more than twelve months prior to filing the 2003 proceedings.
“In our view, Mr Satram’s submission that Singh had known of the fraud committed by the Respondents on the Land Court from as early as the year 2000 cannot be sustained on the evidence before the trial judge. The earliest date in which it could be argued that Singh knew of the fraudulent acts of the Respondents was 15 July 2002 when the earlier Writ of Summons and the Petition were filed. Singh then had actual knowledge that Alves in his Petition filed in 1994 had fraudulently alleged that he (Alves) had been in possession of the land from 1976 to the filing of the Petition. We see nothing on the record to suggest otherwise. Accordingly, we are satisfied that Singh filed these proceedings within the twelve-month limitation period, and so triggered the operation of the proviso to section 22(1) of the Deeds Registry Act”.
The CCJ then made the following orders:
(a) The appeal is allowed.
(b) The order of the Court of Appeal dated 21 December 2016 is hereby set aside.
(c) The First Respondent’s transport No. 1317 of 1999 and the Second Respondent’s transport No. 316 of 1999 are hereby declared void.
(d) The order of Justice Bovell-Drakes dated 9 January 2007 is hereby reinstated.
(e) The Respondents shall pay to the Appellant the costs ordered by the courts below and basic costs in this appeal.
Singh was represented by Nigel Hughes and Prithima Kissoon while Chandrapratesh V Satram and Roopnarine Satram appeared for the respondents.
