Only days after recommendations by the Caribbean Court of Justice (CCJ) that this country should urgently look at reforming the Deeds Registry Act to protect homeowners and buyers from fraud, Attorney General Anil Nandlall says plans are in motion to formulate the necessary amendments.
“After the budget the debates are concluded, I intend to carefully consider the recommendations made by the CCJ with a view of crafting suitable amendments,” Nandlall told Stabroek News yesterday in an interview.
“I have already spoken to the Secretary of the Guyana Bar Association, Ms. Pauline Chase, and I have requested that the Bar assemble a small unit to examine this matter, and after consultation with the wider bar, to make recommendations for reform,” he added.
The reform advice from the CCJ came following the ruling in a recent case that surrounded the fraudulent sale of landowner Allan Price’s West Half of Lot 153 Queenstown, Georgetown property to Merlene Todd, by a woman who had forged Price’s signature to claim Power of Attorney (PoA) rights.
In February 2004, using a Power of Attorney subsequently discovered to be fake, Ann Jennifer Jeboo who claimed to have been acting on behalf of Price, sold the lands in question to Todd for millions. Nandlall had appeared for Todd in the High Court and Justice Ian Chang had ruled in favour of his client; refusing to set aside a transport which she acquired for a property on the ground of fraud.
“The facts are and the evidence established that someone had forged Mr. Price’s signature on a power of Attorney and used that PoA to sell Price’s property without his knowledge …to Marlene Todd. However, there was no evidence to establish that Merlene Todd was privy to or a part of the fraud. In fact, Merlene Todd did what every prudent buyer would have been required to do in the circumstances. That is; to go to the Deeds Registry and verify the existence of the power of attorney which she did as a copy of the power of attorney was filed. As well as, verify the existence of the transport at the Deeds Registry as well,” Nandlall yesterday related.
“Unfortunately, there was no way for her to determine that the power of attorney was a forgery. As on its face it appeared lawful and regular. In those circumstances, she bought and the transport was passed into her name without any opposition filed by anyone, including Mr. Price. By the time Mr. Price came to the knowledge of the sale, the transport had already passed to Ms. Todd,” he added.
The matter was reported to the police and Nandlall said that the person who had forged Mr. Price’s signature and used it to sell the property to Ms. Todd, was charged by the police, found guilty of fraud and sentenced to a term of imprisonment.
Party to the fraud
“So Mr. Price lost his property, by fraud , but Ms. Todd who paid several millions for the property and who was not implicated in the fraud, ended up with the property and the law is that before you can set aside a transport by fraud you must show that the person who received the transport was party to the fraud. Unless that is shown the person becomes a bona fide purchaser without notice of the fraud and the equity protects such a person. So no fault of his, Mr. Price lost a very valuable piece of property in Queenstown,” Nandlall said.
Price had filed an appeal with the Appellate Court and it ordered that the Transport be set aside.
However, Nandlall said that he believed that “the Court of Appeal was completely wrong” and he in turn appealed to the CCJ.
But by the time the case came up to the CCJ, Nandlall was no longer just a practising attorney as he was appointed Attorney General by President Irfaan Ali last year August.
Manoj Narayan, he said, appeared in his stead, and succeeded in having the decision of the Court of Appeal set aside.
They had asked the CCJ to set aside the Court of Appeal’s decision and restore the trial judge’s decision while arguing that the allegations of fraud against her had not formed part of the pleadings.
In allowing the appeal, the CCJ found that while Allan Price’s claim against Jeboo was one of fraud, his action against Todd was not; but instead that by her negligence she contributed to Jeboo’s fraud and the loss of his property.
The CCJ affirmed Justice Chang’s finding that no fraud had been pleaded against Todd and that it was impermissible at the trial to advance the case of fraud against her and that in any event there was no evidence that she was privy to the fraud.
It was for these reasons that Justice Chang refused to declare the Transport to Todd void and to set it aside.
Among other things, the CCJ found that not only was the allegations of fraud against Todd not pleaded, but that she had not been given the opportunity to respond or defend herself against the allegations.
“On the very basis that although Mr. Price lost his property, Ms. Todd was not implicated in any wrongdoing,” Nandlall said.
And while he noted that the Deeds Registry Act was amended in 2013 through recommendations by him, he pointed out that it was in relation to the issues highlighted in the Todd vs Price case that the CCJ recommended further reform to the local Deeds Registry Act as there were still loopholes around sales. Nandlall said that the recommendations “clearly advert to mechanisms to be put into the Deeds Registry Act to protect homeowners and transport owners.”
“You would recall that as attorney general in 2013, I amended the Deeds Registry Act in an effort to guard against fraudulent sales of property by requiring every agreement of sale to be registered with the Deeds Registry. Because there are many instances where persons sold property to multiple individuals; taking a deposit from each and sometimes skipping the country or sometimes passing the transport to only one. Under the Roman Dutch system of land ownership, an agreement of sale confers no legal interest in the land and therefore a person can sell it another time before transport is passed. Hence, that insertion in the law to have each transport registered so that potential purchasers now can go to the registry and enquire if there are any previous agreements of sale against that property,” he said.
“Unfortunately, in my view, that mechanism is not being utilized regularly. But in any event, that amendment would not have helped Mr. Price as there was no previous agreement of sale,” he was quick to point out.
It is why the Attorney General assures that by the end of this month, plans would be on stream to have consensus on suitable amendments so that all legitimately vested parties are protected.
“It will be addressed very, very soon,” Nandlall said.
