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JUDGMENT
OVERVIEW
[1] This case emphasises the need for a contractual purchaser of land from a
registered proprietor to protect himself against a subsequent transfer of
title to another person by lodging a caveat against that title under section
125 of the Land Registry Act, Cap. 5:02. Otherwise, under ss 4, 65(1), 66,
69 and 70 of that Act, the new registered proprietor will obtain an
indefeasible title unless involved in some fraud relating to the transfer, s
69(2) making it clear that mere knowledge of a contract unprotected by a
caveat is not of itself to be imputed as notice of fraud. As Lord
Wilberforce stated in Midland Bank Trust Co Ltd v Green[FN1] "It is not
'fraud' to rely on legal rights conferred by Act of Parliament", so that a
contractual purchaser can take advantage of his right to become registered
proprietor free from the right of another purchaser who failed to protect
his contract by entering a caveat.
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[FN1] [1981] AC 513 at 531
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[2] The Appellant, Mr Ramdeo, was a contractual purchaser who failed to
lodge a caveat, despite delays on the part of his vendor in transferring
title. Thus he had to rely on alleging that the Respondent, Mr Heralall, who
had registered a transfer of title from the vendor pursuant to a contract,
had been involved in some fraud relating to the transfer. As Wooding CJ
emphasized in Roberts v Toussaint[FN2], "in actions in which a registered
title is being impeached, fraud means some dishonest act or omission, some
trick or artifice, calculated and designed to cheat some person of an
unregistered right or interest."
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[FN2] (1963) 6 WIR 431 at 433
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[3] Unfortunately, the Appellant's then attorney in his pleadings overlooked
the elementary need to provide clear particulars of fraud involving the
Respondent: High Court Rules, Order 17 r. 6; Bullen & Leake & Jacob's
Precedents of Pleadings 15th Edition 2004, para 48-02. An allegation of
fraud is a very serious allegation, requiring that the person against whom
fraud is alleged be made as aware as possible of what is alleged to be his
fraudulent behaviour. This is a requirement that enables the defendant to be
well-positioned to try to counteract such allegation and that also places
the judge in a good position to make definitive findings in support of, or
in rebuttal of, such allegation.
[4] Despite the Respondent's attorney filing a Defence stating at paragraph
7, "The plaintiff has failed to file particulars of fraud and his statement
of claim ought to be struck out", the Appellant's amended statement of claim
in its five extra paragraphs failed to provide particulars of behaviour that
was fraudulent.
[5] The Appellant's current attorneys in their written and oral submissions
skillfully pointed to various matters that they considered most suspicious
and led them to draw very adverse inferences as to the Respondent's
behaviour, but it is possible that there could have been an innocent
explanation for such matters. If these matters had been particularised and
investigated at first instance and this had led the trial judge to find
there to be evidence that the Respondent had been involved in some fraud
relating to the transfer of title to him, then the Appellant would have
succeeded in his claim to the land.
[6] In the absence of such investigation and such a finding, however, there
are no possible grounds on which the Appellant's claim can succeed. Thus, at
the hearing on 27 March 2009 we dismissed the appeal with costs here and
below agreed in the sum of $350,000 (three hundred and fifty thousand
Guyanese dollars). We are now giving our written reasons for such dismissal.
FROM CONTRACT TO TRIAL BEFORE ROY J.
[7] Under an agreement of sale and purchase of 29 April 1993 ("the
Agreement") the Appellant bought from Mr Bissoondial Dharamlall ("Mr
Dharamlall") two parcels of land, namely Nos 206 and 243 of Block V, Zone
BRW, at Inverness, West Coast Berbice, ("the Disputed Parcels"), of which Mr
Dharamlall was the duly registered proprietor. The Agreement provided for a
purchase price of $38,000 with half paid on 29 April 1993 and the remaining
half to be paid on transfer of the title which was to be within one month.
On 29 April 1993 possession of the land was also given to the Appellant, who
soon afterwards spent $200,000 in sand-filling and fencing the land.
[8] The Respondent, who lived close by, passed by the Disputed Parcels
several times and saw what was going on: one day he even let the Appellant
use his trailer to load sand on the Disputed Parcels.
[9] On 18 May 1993 Mr Dharamlall's wife, Mrs Phulwantie Dharamlall ("Mrs
Dharamlall"), through her attorney, Mr Murseline Bacchus ("Mr Bacchus"),
brought Action No 557 of 1993 against her husband and the Appellant. She
sought a declaration that she was the owner of one half of the Disputed
Parcels contracted to be sold under the Agreement and a declaration that the
Agreement was of no legal effect. She also sought an order that her husband
transfer to her a half interest in the Disputed Parcels and an injunction
restraining her husband and the Appellant from disposing of the Disputed
Parcels.
[10] On 8 June 1993 the Appellant brought Action No 620 of 1993 claiming
specific performance against Mr Dharamlall for failing to transfer to him
title to the Disputed Parcels as provided for in the Agreement.
[11] In response, on 1 July 1993 Mr Dharamlall swore an Affidavit of Defence,
drawn up by his attorney, the self same Mr Bacchus, who was also acting for
his wife in the above Action No 557 against him. Mr Dharamlall stated that
he could not pass title until his wife's Action No 557 of 1993 had been
determined, but admitted that he had purported to sell the Disputed Parcels
to the Appellant, though "my wife Phulwantie is the bona fide owner of one
half of the property."
[12] Also on 1 July 1993 Mr Dharamlall swore an Affidavit of Vendor (drawn
up by an attorney, Mr Dridhnauth Perry Gossai,) in which he averred that on
14 November 1991 he had sold the Disputed Parcels to the Respondent in
consideration of $12,000 whose receipt he had then acknowledged. On 1 July,
too, the Respondent swore the corresponding Affidavit of Purchaser (also
drawn up by Mr Gossai) and on that same day Mr Dharamlall and the Respondent
executed the Transfer of title to the Disputed Parcels to the Respondent.
The transfer was effected on the register on 28 July 1993 so that the
Respondent then became the registered proprietor.
[13] The Appellant did not learn of these July events for some months during
which Mrs Dharamlall in her Action No 557 of 1993, pursuant to a summons of
22 June 1993, obtained an interlocutory injunction on 19 November 1993
against the Appellant prohibiting him from putting up any structure on the
Disputed Parcels. Her affidavit in support of her interlocutory claim was
drawn up by Mr Bacchus.
[14] On 16 December 1993 the Appellant as Plaintiff filed Action No 1592 of
1993 (which has given rise to the present appeal) against Mr. Dharamlall as
first Defendant, Mrs. Dharamlall as second Defendant and the Respondent as
third Defendant, claiming the following remedies against them jointly and
severally.
(1) A declaration that the Plaintiff is entitled to the right, title and
ownership of the Disputed Parcels.
(2) A declaration that the transfer by the first Defendant to the third
Defendant of those Parcels is "illegal, null, void and of no legal effect
and is vitiated for fraud."
(3) An order setting aside the transfer of 28 July 1993 of the Parcels.
(4) An order compelling the first Defendant to transfer title to the Parcels
to the Plaintiff.
(5) An injunction restraining the Defendants from building or erecting any
structure on the Parcels or interfering with the Plaintiff's peaceful
occupation of the Parcels.
(6) Damages in excess of $1,500.
(7) Any other order the Court may deem just.
(8) Costs.
[15] On 16 February 1994 the Appellant filed his Statement of Claim. Only
the Respondent as third Defendant filed a Defence prepared by his attorney,
Mr Bacchus. In this Defence, filed on 21 January 1997, the Respondent denied
knowledge of the Agreement and of Actions No 557 and 620 of 1993, claimed to
have been a bona fide purchaser for value of the Disputed Parcels without
notice of the Appellant's contract, claimed as registered proprietor to have
an unimpeachable title to those Parcels, and, most significantly, alleged
that failure to file particulars of any fraud should lead to the Appellant's
Claim being struck out.
[16] With the leave of the court, the Appellant filed his amended Statement
of Claim on 24 April 1997 so as to allege in five new paragraphs:
(3) That the third-named Defendant lives two houses west of the first and
second named Defendants.
(16) That on the 3rd day of May 1993, the Plaintiff borrowed and used the
third named Defendant's trailer to transport sand to the land and fill the
said land.
(17) That on the 9th day of May, 1993, the Plaintiff commenced fencing the
said lands.
(18) That while the Plaintiff was in the process of fencing the said land
the first and third named Defendants went to the said land and the first-
named Defendant stopped the plaintiff from continuing the said works. That
the third-named Defendant was present.
(19) That the third-named Defendant then accepted title to the said lands on
a purported sale to him for $12,000 (twelve thousand dollars).
He re-iterated in a renumbered paragraph 20 that neglected to particularize
fraud:
(20) That the Defendants have acted fraudulently in order to deprive the
Plaintiff of the aforesaid property.
THE TRIAL BEFORE ROY J.
[17] Only the Respondent as third-named Defendant appeared at the trial via
an attorney, Mr R Chandan, holding for Mr Bacchus, but the Respondent was
not himself present. The Appellant gave evidence and was cross-examined by
Mr Chandan. A registry clerk gave evidence as to the transfer of title to
the Disputed Parcels to the Repondent. On being cross-examined he confirmed
that all the provisions of the Land Registry Act had been complied with in
the Respondent becoming registered proprietor.
[18] The Appellant gave evidence as to the existence of the Agreement. He
then gave evidence supporting paragraphs 3, 16, 17,18 and 19 of his amended
Statement of Claim by revealing that the Respondent lived near the first and
second Defendants (the Dharamlalls), about an eightth of a mile from the
Disputed Parcels, and knew about the Appellant filling those Parcels with
sand and fencing the Parcels. He also gave evidence that one day the
Respondent allowed him to use the Respondent's trailer to transport sand to
the Disputed Parcels, and that on a later day the Respondent was present
when the first Defendant, Mr Dharamlall, stopped the Appellant from further
fencing the Parcels. Otherwise, the Appellant accepted that "Number three
[Defendant, being the Respondent] and I never had any transaction. It was
between myself and the number one Defendant [Mr Dharamlall]."
[19] Three days later on 29 September 2000 Roy J delivered a very brief
judgment in a hearing attended by the Appellant's attorney, but not the
Respondent's attorney.
[20] After finding that the Agreement between the Appellant and the first
Defendant, Mr Dharamlall, amounted to a valid contract, Roy J. merely stated
as follows:
"While awaiting transfer of title, the Plaintiff expended some $200,000 on
the said land by filling it up with sand and putting up a fence. Unknown to
the Plaintiff, the 1st Defendant on the 28th July 1993 caused to be
transferred to the 3rd Defendant both parcels of land he initially sold to
the Plaintiff. I have accepted the Plaintiff's evidence and entered judgment
for him in the following terms:
It is ordered that the plaintiff is entitled to the right, title and
ownership of parcels 209 and 243, Block V, Zone BRW, Inverness, West Coast
Berbice with no building thereon and that the transfer by the 1st Defendant
of the said property described herein is null, void and of no legal effect
[not going on to add "and is vitiated for fraud" as in the declaration
claimed by the Appellant] and that the transfer of title dated 28 July 1999
of the said property be and is hereby set aside and that the 1st Defendant
be and is hereby compelled to transfer title of the subject property to the
Plaintiff within 6 weeks and in default thereof the Register of Deeds or
his/her lawful Deputy be and is hereby authorized to do so and in such an
event the Plaintiff is duly authorized to apply for and obtain a Certificate
of Compliance on behalf of the 1st Defendant to effect the said transfer and
that the costs of the same be deducted from the balance of the purchase
price of $19,000 and the remainder if any be lodged with the registrar of
the Supreme Court for the benefit of the 1st Defendant."
THE APPEAL BEFORE THE COURT OF APPEAL
[21] The Respondent appealed to the Court of Appeal. Chang CJ (ag) delivered
the judgment of the Court of Appeal orally on 21 April 2008. In his written
judgment, supplied on 2 February 2009 for the benefit of this appeal, he
rightly emphasized how important it is for a trial judge to make clear both
his factual findings and his legal analysis of the issues arising from those
findings. He stated:
"But the trial judge made no specific finding of fraud in either Bissoondial
Dharamlall or the appellant [who is the Respondent in this further appeal].
Indeed, no Particulars of Fraud appeared in the Statement of Claim
It is difficult to decipher on what basis the trial judge made the legal
finding that the transfer of the lands to the appellant to be 'null, void
and of no legal effect.' The total lack of legal analysis in his decision
has rendered it impossible to read his thought processes"
[22] Chang CJ (ag) pointed out that most of the authorities indicated that a
contract to purchase land does not create any equitable proprietary interest
therein capable on general equitable principles of binding third parties
other than a bona fide purchaser for value without notice. In any event,
under the Land Registry Act a registered proprietor obtained an absolute
indefeasible title except in the case of fraud, and fraud could not be
imputed to a proprietor merely from his knowledge of the existence of a
contractual interest that was not protected on the register: ss 65 and 69 of
the Act. Moreover, Chang CJ (ag) considered that for a person to bring an
action against a registered proprietor to recover land under s 70(2) such
person needed to be be deprived of an existing proprietary interest in land,
and a contract to purchase land is not such an interest.
LEAVE TO APPEAL TO THE CARIBBEAN COURT OF JUSTICE (THE "CCJ")
[23] The Appellant obtained leave to appeal to the CCJ from the majority of
the Court of Apeal on 9 July 2008 on the basis that he had an appeal as of
right under s 6(a) of the Caribbean Court of Justice Act, No 16 of 2004,
because the Disputed Parcels were worth over one million Guyanese dollars
and there was a genuinely disputable issue over whether a contract to
purchase land created an equitable proprietary interest in land, while such
a contract might be treated differently if concerning registered land as
opposed to transported land falling under the Deeds Registry Act, Cap 5:01.
THE INTERVENING IMPACT OF RAMDASS V JAIRAM[FN3]
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[FN3] [2008] CCJ 6 (AJ), (2008) 72 WIR 270
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[24] On 22 July 2008 the CCJ delivered judgment in Ramdass v Jairam.It
held[FN4] that equitable proprietary interests in Guyanese immovables (as
opposed to movables) could not exist in Guyanese property law. The interest
of a purchaser under a contract of sale of an immovable, while affording him
the right to sue the landowner for specific performance, is merely a
personal right exercisable against the landowner to compel full and absolute
title to the land to be transferred to the purchaser: this is a "ius in
personam ad rem"[FN5]. It made no difference that the purchaser had been
given vacant possession of the land and had even paid the full purchase
price[FN6]. Moreover, because a contractual purchaser of land has no in rem
right imposed on or attached to the land, he cannot have a "registered
interest" within the meaning of ss 2 and 23 (1) (c) of the Deeds Registry
Act that can affect the full and absolute title to land vested in the
landowner by a transport registered under that Act[FN7]. It follows that to
protect his in personam right a contractual purchaser or his attorney needs
regularly to read the Gazette to see if it advertises a transport to another
of the land he has contracted to purchase, so that he can then oppose the
passing of the transport in timely fashion and in due form.
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[FN4] At [20] and [27]
[FN5] At [33]
[FN6] At [1]
[FN7] At [31]-[32]
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THE ISSUES BEFORE THE CCJ
[25] At the case management conference it was agreed to have written
submissions as to two issues:
(1) In the case of land under the land registration system in Guyana, in the
context of this Appeal, what are the rights and remedies, if any, of a
purchaser in possession prior to completion where the vendor subsequently
sells to a second purchaser who becomes the registered proprietor pursuant
to the Land Registry Act, Chapter 5:02?
(2) Whether on the facts found there was evidence of fraud within the
meaning of the Land Registry Act and, if so, what are the consequences for
this case?
INDEFEASIBILITY OF TITLE: "THE REGISTER IS EVERYTHING"
[26] The objects of the Land Registry Act according to s 4(1) are "to
simplify the title to land and facilitate dealing therewith and to secure
indefeasibility of title to all registered proprietors, except in certain
cases specified in this Act." By s 4(2) the Act has to "be construed in such
manner as shall best give effect" to those objects.
[27] Accordingly, s 66 states as follows:
"Every proprietor registered with an absolute title shall hold the
registered land subject to
(a) any interests registered or entered in the register;
(b) any public right of way or easement;
(c) any charge on or over land created by the express provisions of any
other Act without reference to registration under this Act to secure any
unpaid rates, taxes, assessments or other moneys due and owing to the State
or to any statutory authority;
(d) such interests as may under the provisions of this Act subsist over
registered land without being entered in the register,
but with all rights, privileges and appurtenances belonging or appurtenant
to such land and free from all other rights and interests whatsoever
including rights and interests of the State."
[28] Section 65(1) lays down the rule that, subject to some special cases
involving first registration or adverse possession,
"the title of every registered proprietor shall be absolute and indefeasible
and accordingly shall not be impeached or affected in any way by the
existence in any other person of any interest (whether derived by grant from
the State or otherwise) which but for this Act might be held to be paramount
or to have priority or by reason or on account of any informality or
irregularity in the application or proceedings for registration except
(a) in the case of fraud;
(b) as regards any portion of land erroneously included in any parcel by
misdescription of boundaries, unless such proprietor is a bona fide
purchaser for value or derived title from or through such a purchaser;
(c) as otherwise specified in the register or provided in this Act."
[29] To protect persons dealing with registered land of a registered
proprietor s 69 provides as follows:
(1) A person contracting or dealing or taking or proposing to take a
transfer in respect of registered land shall neither be required nor be
concerned in any manner to
(a) inquire or ascertain the circumstances in or under which or the
consideration for which the registered proprietor or any previous registered
proprietor of the land in question is or was registered;
(b) see to the application of the purchase money or any part thereof;
(c) give effect to, nor be affected in any way by, any notice of any
instrument, fact or thing, whether registered or not under the Deeds
Registry Act or under any other Act, or of any trust, right or interest
unregistered or unprotected by caveat, any rule of law or equity to the
contrary notwithstanding.
(2) The protection granted by this section shall not apply to a person who
is privy to or has notice of any fraud relating to the transfer to such
person, but knowledge of the existence of any instrument, fact or thing,
trust, right or interest, unregistered or unprotected as aforesaid, or
omission to search a register not kept under this Act or investigate any of
the matters hereinbefore mentioned, shall not of itself be imputed as fraud.
[30] It is to be noted that under s 69(1)(c) a person contracting to take a
transfer of registered land is not to be affected in any way by "any notice
of" any instrument, trust, right or interest unregistered or unprotected by
caveat, any rule of law or equity to the contrary notwithstanding. "Notice"
in equity extends beyond actual notice to constructive notice and imputed
notice, the latter being actual or constructive notice of an agent that is
imputed to his principal. A purchaser has constructive notice of those
matters that would have come to his knowledge if such inspections and
inquiries had been made as ought reasonably to have been made in all the
circumstances.
[31] By virtue of s 69(2) the protection in s 69(1) does not apply to a
purchaser "who is privy to or has notice of any fraud relating to the
transfer" making him registered proprietor, while the purchaser's knowledge
of any fact or thing, trust, right or interest unregistered or unprotected
(e.g. by a caveat) or his omission to investigate any such matters "shall
not of itself be imputed as fraud." This latter clause needs to be construed
in context as "shall not of itself be imputed as notice of fraud."
[32] Section 70 then provides as follows:
(1) "Save as hereinafter provided no action of ejectment in respect of
registered land or other action suit or proceeding for the recovery of such
land shall lie or be sustained against the registered proprietor except in
relation to the enforcement of mortgages, charges, leases or other interests
registered under this Act or of an order of the Commissioner made under
section 49, and the production of the certificate of title shall be held in
every court of law to be an absolute bar and estoppel to any such action,
any rule of law or equity to the contrary notwithstanding.
(2) An action may be brought against a registered proprietor not being a
bona fide transferee for value nor deriving title from or through such a
transferee by
(a) a person deprived of any land by or through the fraud of the registered
proprietor or of any prior registered proprietor from or through whom he
derived title otherwise than as a bona fide transferee for value;
(b) a person deprived of or claiming any land erroneously included in any
parcel by misdescription of boundaries;
Provided that the claim of such person is not then barred by any law
relating to limitation."
[33] Section 70(2)(b) reminds one that the Act contains provisions for
rectification of the register by the Court with corresponding provision for
compensation to be paid out of an Assurance Fund to persons suffering loss
or damage from rectification otherwise than due to their own fault . In
particular, s 61(a) provides as follows:
"Rectification of the register may be ordered by the Court in such manner as
the Court thinks fit
(a) where the Court is satisfied that the registration of any person as
proprietor of land has been obtained through any error or omission or by
reason of any entry procured by fraud or made under a mistake."
[34] There is a crucial proviso to s 61 as follows:
"Provided that as against a proprietor who has acquired the land bona fide
for value the Court shall not rectify the register unless such proprietor is
privy to the fraud or mistake or has caused or substantially contributed
thereto by his act, neglect or default."
It would seem in context that a "bona fide" proprietor and also a "bona
fide" transferee within s 70(2) are to be regarded as bona fide if they have
knowledge of a relevant matter but are not privy to any fraud or mistake.
[35] Due to the strength of the above indefeasibilty of title provisions, a
person desirous of protecting his or her in personam ad rem right (like a
contractual purchaser or a person interested under an express, resulting or
constructive trust of an immovable) needs to lodge a caveat under s 125 of
the Land Registry Act or, where appropriate, have a restriction or
prohibition entered under s 117 or s 126 thereof respectively.
[36] By way of contrast, in the case of unregistered land indefeasibility of
a transported title is provided by s 23(1) of the Deeds Registry Act. Every
transport of immovable property (other than a judicial sale transport) vests
in the transferee the full and absolute title to the immovable property
subject only to (a) statutory claims, (b) registered incumbrances, (c)
registered proprietary interests registered before the date of the last
advertisement of the transport in the Gazette and (d) registered leases
registered before such date. Thus a person having an in personam ad rem
right against a landowner needs regularly to monitor the Gazette to watch
for an advertised transport by the landowner so that the passing of
transport may be opposed in good time.
[37] There is a narrow fraud proviso to s 23(1): "Provided that any
transport, whether passed before or after the 1st January, 1920, obtained by
fraud shall be liable in the hands of all parties or privies to the fraud to
be declared void by the Court in any action brought within twelve months
after the discovery of the fraud."
[38] It is, however, important to realize that apart from the limited
statutory exceptions to the principle of indefeasibility of registered or
transported title there is an in personam exception to such principle. In
particular, the doctrines of equity, as administered in the High Court of
Justice in England and applicable in Guyana under s 3 (b) of the Civil Law
of Guyana Act , Cap 6:01, provide that "equity will not allow a statute to
be used as an instrument of fraud", while recognizing that if, in the
interests of security of title to land, a right affecting land has to be
protected by entry on a register then it is not fraud to take advantage of a
strict statutory right enabling a purchaser to take free of an unprotected
right. As Lord Denning, however, has pointed out in Crabb v Arun DC[FN8], in
a passage endorsed by Ramson JA in Collymore v George[FN9], "Equity will
prevent a person from insisting on his strict legal rights whether arising
under a contract, or on his title deeds, or by statute - when it would be
inequitable for him to do so having regard to the dealings which have taken
place between the parties."
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[FN8] [1976] Ch 179 at 187-188
[FN9] (2008) 72 WIR 229 at 244
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[39] As Lord Wilberforce stated in Frazer v Walker[FN10], a New Zealand case
involving a system of land registration similar to that of Guyana:
"their Lordships have accepted the general principle, that registration
under the Land Transfer Act 1952 confers on a registered proprietor a title
to the interest in respect of which he is registered which is (under s 62
and s 63) immune from adverse claims, other than those specifically
excepted. In doing so they wish to make clear that the principle in no way
denies the rights of a plaintiff to bring against a registered proprietor a
claim in personam .... for such relief as a court acting in personam may
grant. That this is so has frequently, and rightly, been recognized in the
courts of New Zealand and of Australia."
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[FN10] [1967] 1 AC 569 at 585
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[40] Without intending to limit or define the various situations in which in
personam ad rem actions may be admitted against "O" ,the owner of an
indefeasible registered or transported title, it seems that a person, "P",
may be able to make a successful in personam claim against O in respect of
O's title where P claims to rescind his transfer of the land to O due to O's
undue influence, or P claims that dealings between O and P had led to O
being an in personam trustee of the land for P[FN11] or to O being
personally obliged on equitable estoppel principles to create an interest in
land for P[FN12]. Against third parties O has an indefeasible title as
absolute owner, but O cannot maintain this against P where there have been
dealings between them that would clearly make this inequitable[FN13].
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[FN11] Collymore v George (2008) 72 WIR 229. Note s 129(a) and (d) of the
Land Registry Act
[FN12] Clark v Kellarie (1970) 16 WIR 401, Thorner v Major [2009] UKHL 18
[FN13] Further see Tang Hang Wu, "Beyond the Torrens Mirror: A Framework of
the In Personam Exception to Indefeasibility" [2008]Melbourne Univ LR 20
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THE APPELLANT'S POSITION ON THE FACTS FOUND IN THE HIGH COURT
[41] In the absence of any such dealings between the Appellant and the
Respondent, there are no special circumstances justifying the Appellant
having any in personam claim against the Respondent outside the parameters
of the Land Registry Act.
[42] Within those parameters two routes might have been available to the
Appellant to show that he was entitled to become registered proprietor of
the Disputed Parcels. These routes involved proceeding under either s 70(2)
or s 61.
[43] The Court of Appeal, however, considered that s 70(2) was not available
to enable the Appellant to bring an action for "the recovery of' land under
s 70(1) because he was not "a person deprived of any land" since he never
had any in rem proprietary interest in land.
[44] There is something to be said for such approach because s 70, in
historical context based on actions of ejectment, seems concerned to enable
someone in possession of land by virtue of an in rem proprietary interest to
recover possession thereof. However, in a broad sense, a person whose
contract would have enabled him to become registered proprietor of certain
land, but for the intervention of title being transferred to a stranger, can
be regarded as a person deprived of such land, and it is a special feature
of Guyanese property law (unlike, say, Jamaican law[FN14]) that a
contractual purchaser of land does not have an in rem proprietary interest.
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[FN14] In Honiball vAlele (1993) WIR 314 the Privy Council assumed that the
respondent, a USA resident, who had bought the disputed land and paid taxes
thereon, but had not registered his title because uncertain whether to
develop the land as an individual or through a company, could recover the
land under the equivalent s 161 of the Jamaica Registration of Titles Act as
"a person deprived of land by any fraud"
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[45] For the present we will leave the issue open because, in any event, the
Appellant would not have been able to satisfy the requirements of s
70(2)(a). The Respondent ranked as a bona fide transferee for value because
as noted above at [34] a person is regarded as bona fide even if he has
knowledge of an unprotected interest so long as he is not privy to any
fraud, and, as will shortly be explained, it was neither properly pleaded
nor established at the trial by cogent evidence that he was so privy.
[46] Irrespective of s 70, it is clear that under s 61 the court may order
rectification of the register against a registered proprietor (even so as to
replace him) if his registration had been obtained by reason of an entry
procured by fraud. Here, as under s 70, no assistance can be given to the
Appellant unless the Respondent was privy to some fraud relating to the
transfer of title to him.
[47] The Appellant's attorney strove manfully to try to establish that there
was some evidence of the Respondent being privy to some fraud, while trying
to invoke rules 24 and 30 of Order 17 of the High Court Rules, so as to
circumvent rule 6. This clearly requires that "in all cases in which the
party pleading relies on any misrepresentation, fraud.. , particulars (with
dates and times, if necessary) shall be stated in the pleading."
[48] Rule 24 is concerned only with allegations as to a person's mental
state and rule 30 is concerned only with technical objections as to "any
alleged want of form." Paragraph 20 of the amended Statement of Claim (at
[16] above), however, relates to the conduct of the Defendants alleged to
"have acted fraudulently" i.e. in fraudulent fashion without particularizing
fraudulent conduct involving the Respondent as third Defendant, while a lack
of such particulars is a fundamental matter of substance not of form.[FN15]
----------------------------------------------------------------------------------------------------------------
[FN15] Roberts v Toussaint (1963) 6 WIR 431 at 433 and 436 per Wooding CJ,
Leon Vansluytman v New Building Society Limited (1996) 54 WIR 270 at 277 per
Bernard JA
----------------------------------------------------------------------------------------------------------------
[49] The Appellant's attorney submitted that the alleged contract dated 14
November 1991 between the Respondent and Mr. Dharamlall had been concluded
after Mr. Dharamlall's Agreement of 29 April 1993 with the Appellant but had
been fraudulently back-dated. Otherwise, why was it not used to stop the
Appellant fencing the Disputed Parcels and filling them in with sand and why
was it not pleaded in the Respondent's Defence to this action, his earlier
equitable in personam claim prevailing over the Appellant's later such
claim? Indeed, why was it not pleaded in Mr. Dharamlall's Defence to the
Appellant's specific performance Action No. 620 of 1993? Moreover, was not
Mrs. Dharamlall's Action No.557 of 1993 an artifice to stall the contracted
transfer to the Appellant and enable Mr. Dharamlall and the Respondent
arrange for the Respondent to obtain title rather than the Appellant,
especially when one notes the involvement of Mr. Bacchus acting for both Mr.
and Mrs. Dharamlall - and for the Respondent in drafting the Respondent's
Defence?
[50] To answer these questions one can respond "why were all these matters
not pleaded in the amended Statement of Claim, so that the Respondent and
his co-Defendants and then the trial judge could deal with these issues?"
Roy J would then have been able to make a finding that the Respondent was -
or was not - privy to a fraud enabling him to be entered as registered
proprietor.
[51] As matters stand, it is possible that Mrs. Dharamlall had a genuine
claim against her husband to be owner of one half of the Disputed Parcels.
It is possible that this matter, so closely affecting Mr. Dharamlall, was at
the forefront of his mind when formally defending the Appellant's specific
performance Action No 620 of 1993 by pointing out that his wife's Action
prevented him from performing his contract with the Appellant. When the
Appellant brought Action No 1592 of 1993 the Respondent had already become
registered proprietor and so could simply rely upon the indefeasibility of
his title and the lack of any particulars of fraud as pleaded in paragraphs
6 and 7 of his Defence drawn up by the ubiquitous Mr. Bacchus. Admittedly,
it is odd that in paragraph 5 it is stated that the Respondent "is a bona
fide purchaser for value without notice and he bought on the strength of the
first-named Defendant's title," so implying that there was no notice of an
earlier contract with the Appellant, yet the Respondent's contract was
alleged to have been concluded in 1991 before the Appellant's 1993
Agreement. It could, however, be argued that the bona fide purchaser defence
was unthinkingly put forward as a standard defence by an over-worked
attorney throwing the proverbial "kitchen sink" at the Appellant. The
Appellant's difficulty is that as stated by Wooding CJ in Roberts v
Toussaint[FN16], "Proof of fraud or dishonesty depends upon certainty, not
on maybe", and the facts and circumstances relied upon to evince the fraud
must be clearly, distinctly and fully pleaded.
----------------------------------------------------------------------------------------------------------------
[FN16] (1962) WIR 431 at 434
----------------------------------------------------------------------------------------------------------------
[52] As seen above, there are circumstances here that raised significant
suspicions that the Respondent might have been privy to some fraud enabling
him to become registered proprietor of the Disputed Parcels. We, however,
are not in a position to resolve any of these factual issues. They were
never pleaded nor brought specifically to the attention of the trial judge.
[53] In a democratic society where the rule of law prevails it is
fundamental that if a plaintiff seeks to establish a factual basis for
allegations that the defendant defrauded him, he must in his pleadings
specify precisely the nature of the allegations upon which such very serious
charge is founded and set out full factual particulars to justify such
allegations. No such matters as those raised in [49] above were pleaded and
particularized, so that the Respondent and his co-Defendants could
justifiably expect not to have to meet charges of fraud. The judge himself
was not in a position to make any findings as to fraud. Hence, though asked
to declare that the transfer by the first Defendant was "illegal null, void
and of no legal effect and is vitiated for fraud", Roy J in his order merely
declared the transfer to be "null void and of no legal effect."
[54] The Appellant, via his then attorney, has only himself to blame for
this. He is also to blame for not entering a caveat (i) when the Agreement
was not duly completed within a month or (ii) when Mrs. Dharamlall filed her
Action No. 557 of 1993 on 18th May, 1993, or (iii) when he filed his action
No. 620 of 1993 for specific performance on 8th June, 1993.
CONCLUSION
[55] The appeal must be dismissed with costs here and below to be paid by
the Appellant, such costs being agreed in the sum of $350,000 (three hundred
and fifty thousand Guyanese dollars). |
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