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INTRODUCTION
[1] This is an appeal from a decision of the Court of Appeal of Guyana given
on 31 October 2007. In its decision a majority of that Court (Claudette
Singh and Chang JJA, Roy J, Additional Judge, dissenting) allowed an appeal
against a judgment of the High Court (Carl Singh CJ) which was handed down
on 26 October 2006. After having obtained leave to appeal from the Court
below, Ramkishun, the appellant, filed a notice of appeal with this Court on
31 December 2007. The appeal was heard by us on 21 April 2009. Thereafter,
in the course of our own researches we unearthed a substantial body of
Roman-Dutch law, mainly South African cases and legal writings, which seemed
to be highly relevant. Accordingly, we decided to draw the attention of both
parties to this material and to invite them to make further written
submissions. The parties subsequently filed their submissions and, in the
case of Ramkishun, additional authorities. We now give judgment in this case
which touches some important aspects of the land law of Guyana.
THE FACTUAL BACKGROUND
[2] The facts in this case have been established by the High Court without
interference from the Court of Appeal. We make the facts so established our
point of departure in dealing with this case.
[3] In March 1980, Solomon Fung-Kee-Fung, the father of the respondents in
this appeal, agreed to sell to Sukhree, the original plaintiff in this case,
a plot of land for the purchase price of $35,000. The land, described as lot
22, Section B, Plantation Ruimzight, West Coast Demerara, comprises 4.915
acres. On 20 March 1980, at the request of Solomon Sukhree paid a deposit of
$10,000 against the purchase price. The following day a receipt for this
deposit, prepared by attorney�at-law Hugh Chan, was signed by Solomon in the
presence of two witnesses. It was issued to Sukhree who was also given
possession of the land. In the following years, on several occasions Sukhree
requested Solomon in vain to transfer the land to her.
[4] In February 1983 Solomon died intestate without having transferred the
land. Sukhree thereupon contacted Solomon's son, Ashford, the first
respondent, who took her to his mother, Letitia, Solomon's widow. Letitia
resided elsewhere; for many years she and her late husband had lived
separately. In the presence of Ashford, Sukhree showed Letitia the receipt
and asked for the land to be transferred to her. Letitia indicated that she
was prepared to honour Solomon's agreement with Sukhree but told her that
she had to wait for the grant of "probate" before she could do anything and
that Sukhree would be informed by Ashford when everything was ready to
proceed. Thus the impression was conveyed to Sukhree that once the paperwork
was done, the transport would be passed to her.
[5] In the years following that meeting, Sukhree visited Letitia regularly
but on every such occasion Letitia told her that the necessary "papers" (the
letters of administration) had not yet been obtained. In the initial stage
that was not untrue but, unknown to Sukhree, on 23 August 1983 Letitia had
been granted letters of administration. And on 15 February 1984, in her
capacity of administratrix of the estate of Solomon, she passed transport of
the land to Solomon's heirs ab intestate ie herself and her children,
Ashford, Michael, Doreen, Leila and Elaine. When that transport was passed
both Letitia and Ashford were present at the Deeds Registry; the other
children were represented by Letitia pursuant to four separate powers of
attorney. Sukhree was not informed about these developments, and for many
years Letitia kept her dangling, telling her over and over again quite
falsely that she, Letitia, was not yet in a position to proceed with the
transfer.
[6] It was finally in 1991 that Sukhree, who at that time was still in
possession of the land, went to the Deeds Registry only to discover that for
a very long time she had been deceived by Letitia and that title to the land
had been vested in Letitia and the other heirs as early as 1984. Upon this
discovery she went to the United States of America (USA) where Letitia was
then staying. There she met with Letitia and Ashford. She confronted them
with her findings at the Deeds Registry and insisted that the land had to be
transported to her in fulfillment of the agreement of sale with Solomon.
Letitia then told her (for the first time) that the land was "children's
property" but she gave her word that upon her return to Guyana in two weeks'
time she would have the transport passed to Sukhree. Relying on this
undertaking Sukhree returned to Guyana. One month later Letitia had still
not appeared and Sukhree decided that the time had come to take action.
[7] On 2 September 1991, Sukhree had an action filed in the High Court for
specific performance of her contract with Solomon. This action was
unfortunately and inexplicably brought against the deceased. It was
subsequently dismissed. After the filing of this first case, Ashford took
possession of the land, whereupon Sukhree in June 1992 filed a second action,
this time against Ashford for an order of possession and damages for
trespass. It is not clear what happened to this case. It seems to have
evaporated in the mists of time.
[8] Finally, at long last, the current action was filed in August 1993
against Letitia and her five children. In this action Sukhree sought inter
alia the following remedies:
a. specific performance of the agreement between herself and the deceased
Solomon as evidenced by the receipt of March 21, 1980;
b. declaration that the then defendants, the six heirs ab intestato of
Solomon, held the property in trust for Suhkree,
c. damages in excess of $15,000 for breach of the said contract,
d any further or other relief which to the Court might seem just, and
e costs.
[9] Several legal grounds have been advanced on behalf of Sukhree and, after
her death, the administratrix of her estate, in support of these claims.
Firstly, it was argued that Letitia and her children had obtained the
transport by fraud and that on this basis the transport should be rescinded.
Secondly, it was argued that because of the promises expressly made to
Sukhree by Letitia and implicitly by Ashford, they together with the other
four heirs to the estate had become upon passing of the transport to the six
of them, (constructive) trustees for Sukhree and, after her death, Sukhree's
estate. A third ground was further developed before the Court of Appeal. It
simply stated that Letitia and the five other heirs of Solomon, having
received the property as volunteers, were under a duty to honour the
contract entered into by Solomon with Sukhree.
THE JUDGEMANT OF THE HIGH COURT
[10] The High Court ruled in favour of Sukhree. The Chief Justice held that
the conduct of Letitia and Ashford with respect to Sukhree amounted to a
form of fraud ("equitable fraud") by means of which the transport was
obtained. Having come to this conclusion, the Chief Justice then considered
the relevance of s. 23 of the Deeds Registry Act, Cap. 5:01. According to
the proviso to this section "any transport ... 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...". This action, having been brought more than two
years after discovery of what the Chief Justice deemed to be fraud, would
clearly fail if this period of limitation applied to any action based on
fraud. Following the reasoning of George J in Alliceck v Demarara Bauxite Co.,
Ltd[FN1], however, the Chief Justice concluded that the proviso did not
deprive the Court of its discretionary power under the general principles of
equity to order a rescission of a transport obtained by fraud in a suit
brought more than one year after the discovery of the fraud.
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[FN1] (1968) GLR 140, 151-152
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[11] Having overcome this hurdle, the Chief Justice then turned to the
question whether there had been an unreasonable delay in the commencement or
prosecution of the proceedings. After all, Sukhree had waited until August
1993 before requesting the Court to order the specific performance of a
contract entered into more than 13 years earlier. Considering, however, that
Sukhree had been put into possession of the land by Solomon and had remained
in possession until 1991, and that she had over and over again been assured
by Letitia and Ashford that the transport would be passed to her, the Chief
Justice concluded that the delay in bringing the case had not been so
unreasonable as to bar Sukhree from getting the relief to which she was
otherwise entitled.
[12] Consequently, the Chief Justice declared the transport obtained by the
defendants (all of them) void for the fraud of Letitia and Ashford. This
resulted in the cancellation of the transport which in turn had the
consequence that title to the land was re-vested in the estate of Letitia
through Ashford as administrator of that estate. He was directed to pass
transport of the land to Sukhree upon payment by her of the balance of the
purchase price.
[13] Alternatively, the Chief Justice decided that when Letitia and Ashford
accepted the transport, given their knowledge of the contractual liability
of the estate of Solomon and their repeated undertakings to Sukhree to
honour that obligation, they clearly held that transport on trust for
Sukhree. In the view of the Chief Justice, this knowledge and the "fraudulent
conduct" of Letitia and Ashford converted them, and apparently also the
other heirs, into "constructive trustees" in which capacity they were all
ordered to convey the property to Sukhree upon payment of the balance.
THE COURT OF APPEAL�S MAJORITY JUDGEMENT
[14] In the Court of Appeal the judicial tide turned in favour of Letitia
and her five children. In a fully reasoned judgment for the majority of the
Court, Chang JA explained why in his considered view Allicock v Demarara
Bauxite should not be followed in its entirety. He held that the
jurisdiction of the Court in equity to rescind a transport obtained by fraud
had been overtaken by the statutory power of the Court under the proviso to
section 23 of the Deeds Registry Act, Cap. 5:01. As this proviso requires
any such action to be brought within twelve months of the discovery of the
fraud, which requirement Sukhree had not met, her action was barred. Chang
JA thought that the word "fraud' in the proviso should be interpreted in a
broad way. It was not limited to the more serious type of fraud known as "common
law fraud" but also embraced the concept of "equitable fraud." The learned
Justice of Appeal reasoned that it could, however, "hardly be contended, let
alone concluded that [Letitia and her children] obtained the transport by
way of fraud." He stated: "The transport was obtained under the rules
governing intestacy and knowledge in the beneficiaries of the agreement of
sale and of the payment of the deposit did not infect those proceedings with
fraud." On behalf of the majority of the Court of Appeal, he expressed the
view that: "In any event, the mere intentional breach of contract cannot be
fraudulent and being a party to such breach of contract cannot translate
into fraud".
[15] As to the submission that, alternatively, Letitia and her children
after having obtained the transport should be considered as holding that
transport on trust, as constructive trustees, for Sukhree, Chang JA held
that in this case there was no room for the operation of the doctrine of
constructive trust as this doctrine was founded on the already rejected
submission that Letitia and her children had procured the passing of the
transport to themselves by the use of fraud.
[16] According to Chang JA, both the question whether Letitia and her
children had obtained the transport by fraud and whether a trust could be
constructed in Sukhree's favour, turned of necessity on whether the
agreement of sale and purchase conferred on Sukhree as purchaser, legal or
equitable rights or interests in the property. Chang JA concluded it did not
and that Sukhree had merely a personal right to claim specific performance
of the agreement.
[17] Agreeing that there was a deliberate breach of contract by Letitia as
administratrix of the estate of Solomon, the majority of the Court of Appeal
decided that, were it not for the fact that the case was brought well
outside the three year statutory limitation period, such a breach could only
have given rise to a claim for damages. They concluded that Sukhree or her
estate was only entitled to restitution of the deposit originally paid by
Sukhree.
THE DISSENT IN THE COURT OF APPEAL
[18] Perhaps somewhat surprisingly, the majority judgment did not make
mention of the third ground advanced on behalf of Sukhree, ie that Letitia
and her children having received the transport and title to the property as
volunteers were under a duty to honour the contract with Sukhree who was a
purchaser for value. It was precisely this point, however, that was
addressed by Roy J in his succinct dissent. In his view the agreement of
sale and purchase remained alive at the date of the death of the vendor (ie
Solomon) and it therefore bound his estate. Consequently, it bound not only
the administratrix of the estate but also the intestate's heirs being all
volunteers. Roy J based this rather bold assertion on English textbooks and
the English authorities which they cited. He also referred to section 3 (d)(iii)
of the Civil Law of Guyana Act, Cap 6:01, which expressly provides that the
relief by judgment for specific performance shall in the case of immovable
property be granted on the same principles on which it is granted in England
in the case of contracts relating to land.
[19] Although Roy J did acknowledge that the delay in bringing the action
was considerable, he held that this delay was mainly caused by Letitia's
false promises and undertakings to pass the transport to Sukhree. Against
this background and in the circumstances of the case Roy J considered it
understandable that Sukhree had waited as long as she did before she
instituted these proceedings. She could, therefore, not be faulted for the
delay, at least not to such an extent as to deny her or her heirs their
right to the property.
THE REASONING IN THE HIGH COURT�S JUDGEMENT; THE TRUST CONSTRUCTION
[20] The reasoning of the Chief Justice shows some obvious flaws. Even if
the Court had the power to rescind a transport for reasons of fraud outside
of the statutory twelve month time limit, it is not at all clear from the
judgment how the undoubted fraud of Letitia and Ashord's apparent complicity
in it, can be attributed to the other defendants who were not shown by the
evidence to have known of the agreement of sale between Solomon and Sukhree.
It is even less clear how Letitia's fraudulent conduct ie her lulling
Sukhree into inaction with false promises and lies, both before she became
administratrix of Solomon's estate as well as after she had ceased to act as
such, could have made all the heirs trustees for Sukhree.
[21] Assuming, but not deciding, that a resulting or constructive trust of
immovables might be possible under the laws of Guyana if only to a limited (in
personam) extent, Letitia's conduct, and Ashford's complicity in that
conduct, could not in any way have converted the other heirs into trustees
for Sukhree. An administrator of the estate represents the deceased and not
the heirs. When Letitia made promises and gave undertakings to Sukhree that
she would transfer the property to her, it could not be said that she was
doing so on behalf of the heirs. Only when she received the transport on
behalf of the four children who were not present to receive it themselves,
did she represent them. For that purpose she was acting on the authority of
separate powers of attorney from the absent heirs. So, even if it could be
said (which it cannot) that Letitia's knowledge of the agreement for sale
was at that stage imputed to the absent heirs; it could not make the
promises made and the lies told by Letitia their promises and their lies.
For that reason alone, the trust argument is misconceived.
THE CONCEPT OF FRAUD IN THE PROVISO TO S.23(1) OF THE DEEDS REGISTRY ACT
[22] Section 23 (1) of the Deeds Registry Act, Cap. 5:01, provides, so far
as relevant for present purposes, that every transport of immovable property
other than a judicial sale transport shall vest in the transferee the full
and absolute title to the immovable property, subject to certain statutory
claims and registered rights and interests, provided that any transport "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".
[23] Fraud, like freedom, comes in many shapes. On the one hand, there is
the more serious and obvious form of fraud, in legal parlance "common law
fraud." On the other hand, there are various forms of "unconscionable
conduct" or "improper behaviour" which qualify as "constructive fraud", "quasi
fraud" or, a rather curious expression, "equitable fraud." The first
question to be answered therefore is whether fraud within the meaning of the
proviso is limited to "common law fraud" or whether it has a broader meaning
which includes "equitable fraud."
[24] It does not appear that the High Court gave a clear answer to this
question although the Chief Justice did declare himself "in complete
agreement" with the approach taken by George J in Allicock v Demerara
Bauxite Co. In that judgment George J (as he then was), basing himself on
the observations of Bell CJ in Coombs v Stafford[FN2] and some English
authorities on the meaning of "fraud" in a limitation statute, held that the
word "fraud" in the proviso extended to "equitable fraud" which in his view
included undue influence and breach of a fiduciary relationship. The Court
of Appeal expressly agreed with George J on this particular issue and held
that fraud in the proviso "embraced fraud both in common law and in equity."
The Court of Appeal was, however, firmly of the view that it would be taking
things much too far to treat "the mere intentional breach of contract" as
fraudulent or to hold that "being a party to such breach of contract" would
"translate into fraud."
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[FN2] (1952) LRBG 49, 73
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[25] It is clear that in equity the concept of fraud was used in the much
wider sense of "unconscionable conduct" and that it was not limited to false
statements or other forms of intentional deceit. At first, the equitable
rules did not apply to common law actions but after law and equity were
fused in England in 1873 these rules applied to those actions as well. It is
therefore not illogical that in later statutes the word "fraud" was
interpreted in the wider equitable sense. In effect, this was what happened
for example when the Courts consistently interpreted the word "fraud" in s.
26 of the English Limitation Act 1939 in this manner. In Alliceck George J
referred to the judgment of Lord Evershed MR. in Kitchen v R.A.F.
Asseciatien and Others[FN3], where the Master of the Rolls said that the
word "fraud" in this provision "is by no means limited to common law fraud
or deceit. Equally, it is clear, . that no degree of moral turpitude is
necessary to establish fraud within the section." Another Master of the
Rolls, Lord Denning MR., dealing with the same provision, was equally clear
in King v Victor Parsons & Co (A firm)[FN4] where he said: "The word "fraud"
here is not used in the common law sense. It is used in the equitable sense
to denote conduct by the defendant or his agent such that it would be "against
conscience" for him to avail himself of the lapse of time.. .Like the man
who turns a blind eye. He is aware that what he is doing may very well be a
wrong, or a breach of contract, but he takes the risk of it being so. He
refrains from further inquiry lest it should prove to be correct; and says
nothing about it. The court will not allow him to get away with conduct of
that kind".
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[FN3] [1958] 2 All ER 241, 249; [1958] 1 WLR 563, 572
[FN4] [1973] 1 WLR 29 at 33
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[26] This Court agrees with the Court of Appeal that the word "fraud" in the
proviso to s. 23(1) of the Deeds Registry Act, Cap. 5:01 has to be
interpreted in a wide sense. The question remains, of course, how wide
should this be? In this respect it is instructive to recall the words of
Lord Evershed MR. in the above mentionedcase: "What is covered by equitable
fraud is a matter which Lord Hardwicke did not attempt to define two hundred
years ago and I certainly shall not attempt to do so now...". Lord Evershed
was, of course, referring to an abstract definition of fraud. In this case,
however, we have before us a concrete situation which has to be assessed and
a similarly concrete question which has to be answered: did Letitia's
behaviour towards Sukhree, assuming it amounted to an intentional breach of
contract, constitute fraud within the broad meaning of the proviso?
[27] To answer that question the Court will first consider what the answer
would have been under the Roman-Dutch law which was the body of law in
Guyana before 1917 when momentous changes in that law were brought about by
the Civil Law of British Guiana Ordinance 1916 (now the Civil Law of Guyana
Act). Although that statute sought to substitute the English common law and
English principles of equity for the Roman-Dutch law, it simultaneously
retained and codified certain portions of that law especially those dealing
with immovable property. It was also with respect to that particular "codification"
that the Deeds Registry Ordinance 1919 (now the Deeds Registry Act) was
designed and adopted. Dalton J (in his judgment in the case In re Samson ex
parte Official Receiver[FN5]), describing himself as "one who had some hand
in the drafting of the Deeds Registry Ordinance and in seeing it through the
legislature", stated that "the whole purport of the Deeds Registry Ordinance"
was "the retention of the old law relating to transports and mortgages... In
effect the law as it stood in this Colony before 1917 and in South Africa
was retained".
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[FN5] (1922) LRBG 133
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[28] What then was the law in the then Colony and in South Africa when a
vendor of immovable property breached his contract with a purchaser and
transferred the property to another who knew about the earlier contract?
Unfortunately, no clear and specific Guyanese case law on this subject prior
to 1917 can be located. Early nineteenth century sources do reveal, however,
that the Courts in Guyana had always considered themselves as having the
power to grant relief in cases of fraudor palpable error based on the broad
concept of equity which was, and always has been, part of the civil law.
According to Dr F.H.W. (now Sir Fenton) Ramsahoye in his authoritative book
The Development of Land Law in British Guiana: "Principles of Roman-Dutch
law could always have been invoked to prevent fraudulent conduct and to
rectify mistakes and it would appear that a substitution [by the Civil Law
Ordinance] of English equity for the broad equity of the Roman-Dutch system
was in this respect a substitution only in form. Remedies similar to decrees
of specific performance and injunction were also familiar to that system...".[FN6]
On the other hand, in South Africa where the Roman-Dutch law is still the
common law, both the case law and juridical writings on the subject are rich
and plentiful. So it is there where we should look to find out what the
position was in "the old law" of Guyana.
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[FN6] Op cit p 227
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[29] That position emerges with striking clarity from both the ancient
authorities (the writings of the learned Roman-Dutch jurists[FN7]) and the
constant flow of fairly consistent South African case law as it gradually
developed from the last part of the nineteenth century. The classic 1882
case of Cohen v Shires, McHattie and King[FN8] is of special relevance to
the case before us. Shires had sold two farms, Hendriksdal and Elandtsdrift,
to Cohen who had paid part of the purchase price. Shires subsequently sold
and transferred the same farms to McHattie and King who both knew of the
earlier sale to Cohen. Cohen instituted an action in the Supreme Court of
the Transvaal for the cancellation of the transfers of the farms by Shires
to McHattie and King, and further prayed that Shires would be ordered to
pass transfer of the farms to him. It was contended on behalf of Cohen that
both the vendor and the second purchasers having notice of the first sale
were mala fide. The transfer in favour of the second purchasers should,
therefore, be set aside on the ground of fraud. The subsequent order to pass
the transfer of these farms to Cohen should be granted as Roman-Dutch law (in
contradistinction to Roman law) recognizes an action for specific
performance. Counsel for McHattie and King, however, contended that Cohen's
only remedy was an action for damages now that the transfer had passed or,
in other words, had become indefeasible.
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[FN7] See eg R G McKerron, Purchaser with Notice, 1935 SA Law Times Vol. 4
pp 178-182, who mentions and cites, among others, Voet 6.1.20, Anthonius
Matthaeus, Paroemiae Belgarum jurisconsultis usitatissimae 7.6, Jan van de
Sande, De prohibita rerum alienatione, 1.19.2.19,Andreas Gail, Practicae
Observationes , book 2 55 11, and Joannis Loenius, Decisiones (annotated by
Tobias Boel), 1712, casus 80
[FN8] 1 SAR TS 41
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[30] Kotze CJ, ruling in favour of Cohen, stated that the "Roman-Dutch law
... clearly recognizes the right to a specific performance of a contract ...
such is the true rule of the civil law." As to the main point, he deplored
the fact that no definite Roman-Dutch authority was cited in support of
Cohen's contention. The Chief Justice, however, had found such an authority
in Loenius Decisions, Case 80[FN9], which reads: "Also, a person having sold
his property thereafter selling and transferring the same to another, the
last purchaser, who has received transfer, may retain the same, unless it
was known to him that the seller had previously sold the same thing to a
third person, and he therefore became doli particeps; in that case he may,
when defending himself by setting up the last sale and transfer, be repelled
by replication doli, and made to return the thing last bought by and
conveyed to him."
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[FN9] See footnote 7
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[31] In 1921, in McGregor v Jordaan and Another[FN10] which was a case where
the owner of a farm (Jordaan) had granted a right of pre-emption on his farm
to another (McGregor) and subsequently sold the farm to a third person who
had knowledge of the prior unregistered right, the Cape of Good Hope
Provincial Division (Kotze JP) was able to state unhesitatingly: "It is a
clear rule of our law that, where a vendor sells a thing to A, and then
subsequently sells the same thing to B, and gives him delivery or transfer
thereof, B having knowledge of the previous sale to A, the latter is
entitled to claim a cancellation of the delivery or transfer to B upon the
ground that the vendor and the second purchaser with notice are considered
to have acted in fraud of the rights of the first purchaser.The rule, which
gives the first purchaser the right to have the sale to the second purchaser
with notice cancelled, is based on fraud. The object is toprevent the second
purchaser taking an unfair or improper advantage of his own wrongful act.
The policy of the rule is to discourage and disallow covert and fraudulent
dealing in violation of another's rights... The object of the law is at all
times to discourage and prevent fraud; and conduct such as that of which the
second defendant has been guilty amounts to fraud."
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[FN10] 1921 CDD 301
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[32] This statement of the Roman-Dutch law basically reflects the state of
the law as it still exists in South Africa. It should be noted, however,
that relevant "notice" or "knowledge" in this law is strictly limited to
actual knowledge of the second purchaser or, at its highest, to his acting
with dolus eventualis in respect of the existence of the prior personal
right (the more familiar expression in English law would be blind eye's
knowledge)[FN11]. Constructive notice, as it is known in English equity has
never been accepted by the Roman-Dutch law as that would have required the
recognition of equitable rights and interests in immovable property which is
a concept repugnant to both the Roman-Dutch law in South Africa[FN12] and
the law as it stands in Guyana as this Court recently confirmed in Ramdass v
Jairam[FN13].
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[FN11] See P J Badenhorst, Juanita M Pienaar and H Mostert in Silberberg and
Schoeman's The Law of Property, 5th edition pp 83-88; see also J E Scholtens,
Double Sales, 1953, SALJ 22 pp 22-34
[FN12] See McKerron, op cit pp 178-179
[FN13] [2008] CCJ 6 (AJ)
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[33] Although there is a view expressed in some South African legal writings
and cases that the mere knowledge of the previous transaction without more
provides a sufficient basis for cancelling a transfer of immovable property[FN14],
the leading cases still indicate that the impugned transaction has to have a
"fraudulent scent" without which it cannot be declared void. This was
recently confirmed by the Supreme Court of Appeal of South Africa in the
2007 case of Dream Supreme Properties 11CC v Nedcor Bank and others[FN15].
In that case Streicher JA stated for the majority of the Court that although
"an inference of fraud of a second purchaser is drawn from the mere fact of
knowledge of a prior sale" it would still be necessary to establish that the
impugned actions of that purchaser could be regarded "as a species of fraud."
It will only be in exceptional cases, however, that the taking of a
transport with knowledge of a prior sale will not be categorized as
unconscionable and fraudulent.
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[FN14] See Badenhorst, Pienaar and Mostert, op cit pp 86-87 and Gerhard
Lubbe, A Doctrine in search of a theory: reflections on the so-called
doctrine of notice in South African Law, 1997 Acta Juridica p 246 et seq
[FN15] [2007] SCA 8 (RSA)
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[34] In conclusion, given that it was "the whole purport" of the Deeds
Registry Act to retain "the old law relating to transports" it would appear
from these sources that the word "fraud" in the proviso to s. 23 of that Act
includes the situation where the owner of a property or the administrator of
the estate of which such property forms part intentionally breaches a
contract of sale with a purchaser of that property in order to have it
transferred to another who knows of the earlier contract but who
nevertheless in his own interest participates and assists in that breach.
Such a scenario also falls within the ambit of the proviso which provides
that fraud can only be invoked against those who are "privy and party" to it.
[35] Despite the fact that Letitia transferred the property to the heirs in
accordance with the rules governing intestacy she did so with the knowledge
that she was thereby in breach of the agreement for sale made with Sukhree.
In order to conclude, however, that all the heirs were involved in a
fraudulent transaction and so had obtained the property by fraud within the
meaning of the proviso, it should at the very least be shown that the other
heirs had that same knowledge.
[36] There is no evidence that the heirs, other than Letitia and Ashford,
had any personal knowledge of the agreement of sale with Sukhree. When the
transport was passed, however, they were represented by Letitia who did have
that personal knowledge. Generally speaking, depending on the circumstances
of the case, the knowledge of the representative may sometimes be imputed to
the principal and deemed to be his knowledge.
[37] Given the circumstances of the case before us, however, it would be
quite wrong to impute Letitia's knowledge to the heirs represented by her
when receiving thetransport on their behalf. The authorities show that
imputation of knowledge in this context can only be made if that knowledge
was acquired by Letitia in the course of acting within the limited mandate
she had been given by the heirs to act on their behalf in connection with
the transfer of the property to them.[FN16]. The evidence, however, was that
she acquired her knowledge of the agreement of sale long before she became
administratrix. It has, therefore, not been established that any of the
heirs in this case other than Letitia and Ashford had either personal or
imputed knowledge of the agreement between Solomon and Sukhree. For this
reason alone, it cannot be said that they all obtained the property by fraud.
----------------------------------------------------------------------------------------------------------------
[FN16] See eg Abbey National plc v Tufts [1999] 2 FLR 399 at 404H and Rock
Permanent Benefit Building Society v Kettlewell (1956) 168 EG 397
----------------------------------------------------------------------------------------------------------------
DOES THE TWELWE MONTH LIMITATION PERIOD IN THE PROVISO TO S. 23 OF THE DEEDS
REGISTRY ACT APPLY TO ALL FORMS OF FRAUD?
[38] In his analysis of this issue Chang JA placed remarkable emphasis on
the question whether a transport obtained by fraud was void from the very
beginning or void or voidable only from the time that the judicial
declaration to that effect was made. The learned Justice of Appeal concluded
from the wording of the proviso to s. 23 of the Deeds Registry Act that such
a transport must be voidable and not void ab initio irrespective of the kind
of fraud by which it was obtained. He further reasoned that there could not
be an equitable jurisdiction dehors the proviso when the word "fraud" in the
proviso embraced equitable fraud. Hence his conclusion that the exercise of
the court's equitable jurisdiction had been overtaken by the statutory power
of the court under the proviso to s. 23 and was therefore subject to the
twelve month limitation period prescribed by the proviso.
[39] This Court agrees with this last conclusion and the reasoning which
supports it. They seem logical and inescapable. But we are not prepared to
rule, in the same absolute and unqualified manner as the Court of Appeal did,
that under the proviso a transport cannot be held to be void ab initio. In
some instances of "common law fraud", for example, depending on the
circumstances, that might indeed be the case.
THE POSITION OF THE HEIRS AS VOLUNTEER TRANSFEREES
[40] As will be recalled, Roy J in his dissent indicated that he would have
dismissed the appeal against the judgment of the Chief Justice as he was of
the opinion that Letitia and her children being the heirs to the estate of
Solomon Fung-Kee-Fung, were all bound by Solomon's agreement for sale with
Sukhree not because they all knew about this agreement (there was no
evidence that the heirs other than Letitia and Ashford knew about it) but
because they all received the property as volunteers. Unfortunately, Roy J
based this conclusion wholly on English textbooks on equity and the English
authorities cited therein without any further analysis. Indeed, s. 3 (d) (iii)
of the Civil Law of Guyana Act, Cap. 6:01, provides that "the relief by
judgment for specific performance shall be granted in the case of immovable
property on the same principles on which it is granted in England in the
case of contracts relating to land or to interests in land."
[41] Counsel for the respondents, however, objected on several grounds to
the unrestricted application of these English principles in this case. In
the first place he suggested that the heirs were not volunteers. Making
reference to a passage from Stroud's Judicial Dictionary of Words and
Phrases, Seventh Edition, Volume 3 (pp. 2964-2965), he contended that a
volunteer can only be someone in whose favour an appointment was made when
the appointor was under no obligation to appoint. As Letitia in her capacity
as administratrix of the estate of Solomon was obliged under the rules of
intestacy, as codified in s. 5 of the Civil Law of Guyana Act, Cap. 6:01, to
distribute the estate to its lawful beneficiaries, it followed that they
could not be volunteers. Counsel conceded that Letitia in her capacity as
administratrix had a contractual duty to transfer the property to Sukhree
who had a personal right to receive the transport. But given the fact that
Letitia was at the same time under the aforementioned statutory obligation
to distribute the estate to the beneficiaries (the heirs) who were
statutorily entitled to the assets of the estate, the most Sukhree could
have claimed was damages.
[42] A second objection put forward by counsel was that the English rule
that volunteers are bound by contracts entered into by their predecessor
could only be applied if Sukhree, as a contractual purchaser, had an
equitable interest in the land, which is not permissible under Guyanese law.
A third objection was that specific performance cannot be decreed where
performance is impossible. This was the case here, according to counsel,
because when Sukhree filed these proceedings claiming specific performance
the title had already been passed to the beneficiaries and therefore,
according to counsel, the performance of her contract of sale was legally
impossible. The fourth and last objection was to the effect that Sukhree's
claim was barred on the basis of analogous limitation, an objection we will
address later in the judgment.
[43] It is generally accepted that a person who in relation to any
transaction has not given valuable consideration is a "volunteer." Heirs
clearly fall within that[FN17] category. The first objection, therefore,
fails. The second and third objections will have to be considered together.
----------------------------------------------------------------------------------------------------------------
[FN17] See eg Wu Koon Tai and another v Wu Yau Loi [1997] AC 179 at 184,
189-190
----------------------------------------------------------------------------------------------------------------
SPECIFIC PERFORMANCE AGAINST A VOLUNTEER IN ENGLISH LAW
[44] The position in English law is crystal clear from the following:
"At common law, it would follow from the proposition that the burden of a
contract is incapable of assignment that if an owner contracts to sell
property to a purchaser, but before completing the sale he transfers the
property to a third party, the purchaser cannot enforce the contract against
the transferee but is left only with an action for damages against the
original owner. If the contract is specifically enforceable the courts of
equity will, however, treat the original purchaser as the owner of the
property in equity from the time of the contract. He has, therefore, a
proprietary claim to the property which can be enforced by an order for
specific performance against a subsequent transferee of the legal estate in
the property, despite the absence of privity of contract between them,
unless the transferee is a purchaser for value of the legal estate without
notice. Thus, if the subject-matter of contract is such that the contract
would be specifically enforced against the original vendor (for example, if
it is for the sale of land or of a chattel of special value) it can be
enforced against a subsequent transferee who is not a purchaser for value
from the vendor, such as a donee or the trustee of a voluntary settlement
made by the vendor." [FN18]
In other words: "Where there is a contract for the sale or demise of
property and the property is thereafter transferred to a third person, the
general principle is that specific performance may be granted against the
transferee, if he is a volunteer, or takes with notice of the prior contract,
or has acquired only an equitable title and has no better equity than the
purchaser�"[FN19] (emphasis added).
----------------------------------------------------------------------------------------------------------------
[FN18] Jones and Goodhart, Specific Performance, Second Edition, pp. 201-202
[FN19] 44(1) Halsbury's Laws of England, Fourth Edition, Reissue, para. 915
----------------------------------------------------------------------------------------------------------------
[45] Applying these equitable principles to the case at hand, as Roy J did
and as section 3 (d) (iii) of the Civil Law of Guyana Act, Cap. 6:01, seems
to require, it would seem natural to conclude that the contract of sale
between Sukhree and Solomon can still be enforced against Solomon's heirs,
and that they, being volunteers, are bound to comply with that contract. The
problem - and this was counsel for the respondents' main objection - is that
the English rule that a volunteer is bound by an agreement to sell land
entered into by the person from whom he got the land, is linked to the
concept of equitable rights and interests in land, a concept which, as we
have seen, is repugnant to the law of Guyana. It would seem therefore that
despite the clear words of s. 3 (d) (iii) of the Civil Law of Guyana Act,
Cap. 6:01, specific performance cannot uncritically be founded "on the same
principles on which it is granted in England." The legal meaning of these
words must be established upon a proper interpretation of this proviso in
the context of the entire section. As far as relevant, s. 3 of the Civil Law
of Guyana Act, Cap. 6:01, provides:
a. "From and after the date aforesaid [the 1st January, 1917] -(a) the law
of Guyana relating to wills movable or personal property, immovable or real
property and chattels real, and all matters relating to any of the aforesaid
subjects, and the law of Guyana relating to all other matters whatsoever,
whether ejusdem generis with the foregoing or not, shall cease to be
Roman-Dutch law, and as regards all matters arising and all rights acquired
or accruing after the date aforesaid, the Roman-Dutch law shall cease to
apply to Guyana;
b. the common law of Guyana shall be the common law of England as at the
date aforesaid including herewith the doctrines of equity as then
administered or at any time thereafter administered by the courts of justice
in England, and the High Court shall administer the doctrines of equity in
the same manner as the High Court of Justice in England administers them at
the date aforesaid or at any time hereafter;
c. the English common law of real property shall not apply to immovable
property in Guyana;
d. there shall be as heretofore one common law for both immovable and
movable property, and all questions relating to immovable property within
Guyana and to movable property subject to the law of Guyana shall be
adjudged, determined, construed and enforced, as far as possible, according
to the principles of the common law of England applicable to personal
property:
Provided that �
(i) immovable property shall be held as heretofore in full ownership, which
shall be the only ownership of immovable property recognised by the common
law ...;
(ii) the law and practice relating to conventional mortgages or hypothecs of
movable or immovable property and to easements, profits a prendre, or real
servitudes, and the right of opposition in the case of both transports and
mortgages, shall be the law and practice now administered in those matters
by the Supreme Court;
(iii) the relief by judgment for specific performance shall be granted in
the case of immovable property on the same principles on which it is granted
in England in the case of contracts relating to land or to interests in land;"
WHEN CAN SPECIFIC PERFORMANCE BE GRANTED IN GUYANA?
[46] There have been judicial attempts over time to grapple with the
difficulty of reconciling the conflict between those statutory provisions
which prescribe the adoption in Guyana of the law of equity as it has been
developed in England and those which preserve certain fundamental features
of Roman-Dutch land law. Thus, in the case of British Colonial Film Exchange
Limited v De Freitas,[FN20] Verity J stated that it must "be borne in mind
that equity as now administered in England in no case seeks to override the
specific provisions of statute, and that the exercise of equity jurisdiction
within this colony is of necessity subject to such restrictions as may be
imposed upon it by statute either directly or indirectly by reason of some
difference in the statute law of the colony which renders its exercise in
certain cases improper or impossible". A little further on in the same
judgment Verity J elaborated: "By its provision of a system of civil law ...
the Ordinance [ie the Civil Law Ordinance which is now the Civil Law of
Guyana Act] does limit the application of the doctrines of equity in so far
as they may be repugnant to specific enactment or impossible of application
to the legal system in force within the colony." As to s. 3 (d) (iii) of
what now is the Civil Law of Guyana Act, Cap. 6:01, the judge stated that
the effect of that provision was not "to limit the application of the equity
jurisdiction to be exercised in this colony but to secure that in these
cases it is to be exercised on similar grounds to those upon which it is
exercised in England." This interpretation, Verity J said, "excludes the
creation of equitable estates in land ... but it recognizes the principle of
the application of the doctrines to persons rather than to classes of
property, and only excludes their application where it would involve the
recognition and adoption of legal rules of land tenure or estates in land,
excluded from the Civil Law of the Colony, or equitable rules analogous
thereto." (emphasis added). And he concluded: "I have then to consider
whether or not the relief asked for in the present case would offend against
the statute as so interpreted."
----------------------------------------------------------------------------------------------------------------
[FN20] (1938) LRBG at 38-39
----------------------------------------------------------------------------------------------------------------
[47] In 1968 these dicta were by and large endorsed by Luckhoo C (Ag),
Bollers CJ[FN21] concurring, in Dennis Li v Lucy Walker[FN21], a case which
dealt with the application of partition as an equitable remedy in Guyana,
which "would not in my view operate to create any equitable interests in
land, or to make effective the Englishlaw of real property or any incident
attached exclusively to land tenure or estate in England. It is not a remedy
which is peculiar to the English law of real property, but is fundamental to
any system of modern law, being really based upon the equitable need for a
fair division of land in cases of concurrent ownership."
----------------------------------------------------------------------------------------------------------------
[FN21] (1968) 12 WIR 195 at 202
----------------------------------------------------------------------------------------------------------------
[48] The thrust of these decisions seems to be that in the case of contracts
relating to land the English principles and remedies can be applied if and
to the extent that they do not offend against, but are compatible with,
statutes like the Civil Law of Guyana Act and the Deeds Registry Act and the
parts of the civil (Roman-Dutch) law which they have retained. Ramsahoye[FN22]
states that "the application of equitable doctrines has been excluded when
the results were likely to conflict with statutory provisions." (emphasis
added). And it would appear that these provisions as a rule "must be
construed by reference to the old system" as it existed before 1917[FN23],
although there is nothing in these statutes that seems to "preclude the
development of the Roman-Dutch law on these subjects on the basis of well
established principles."[FN24]
----------------------------------------------------------------------------------------------------------------
[FN22] op cit p 281
[FN23] See Ramsahoye op cit p 291
[FN24] See Ramsahoye op cit p 280
----------------------------------------------------------------------------------------------------------------
[49] When section 3 of the Civil Law of Guyana Act is read in its entirety,
it is clear that its drafter or, to be exact, the drafter of the Civil Law
of British Guiana Ordinance, 1916 (the predecessor of the Civil Law of
Guyana Act), intended to introduce by and large the English common law (including
the doctrines of equity) as the common law of Guyana. This follows from
sections 3(a), (b) and (d). It is equally clear that in the area of
immovable property, the Roman-Dutch law was retained to some extent, which
follows from s. 3 (d) (i) and (ii). From this legal structure it can be
deduced that in the interpretation of Guyanese law the main rule of
construction must be that the English common law (including the doctrines of
equity) should be followed unless the expressly retained Roman-Dutch law
would strongly otherwise require.
[50] This rule of construction applies also to the third proviso in s. 3(d)(iii)
although its position is somewhat peculiar. Even though it is apparently the
English law of personal property generally that governs immovable property
in Guyana (so far as it is not governed by the retained Roman-Dutch law),
the proviso seeks to ensure that in the case of immovable property the
equitable remedy of specific performance shall be granted on the same
principles on which it is granted in England in the case of contracts
relating to land or to interests in land. The specific question which needs
to be answered in this case is whether a purchaser for value of land can
obtain specific performance against a volunteer who is not a party to the
contract. The answer under English law is, in accordance with Halsbury's
Laws of England (see para. [44]), that in such a case relief can be obtained
on the general principle that "specific performance may be granted against
the transferee if he is a volunteer, or takes with notice of the prior
contract." As we have seen, the latter part of that principle has been
subsumed and modified by the proviso to s. 23 of the Deeds Registry Act but
there is no such provision with respect to volunteers.
[51] The general principle referred to, is in English law, as we have stated,
clearly linked to the concept of an equitable interest or estate in
immovable property. The first proviso in s. 3(d)(i) of the Civil Law of
Guyana Act, however, states: "immovable property may be held as heretofore
in full ownership, which shall be the only ownership of immovable property.".
The effect of this proviso is, as we held in Ramdass v Jairam, that there
can be no equitable interests in immovables in Guyana. This legal
underpinning or rationalization of the principle that specific performance
can be granted against a transferee volunteer is therefore not available in
Guyana. That is, however, not the end of the story. It raises the question
whether the principle could be accepted and justified on another legal basis
which is compatible with the statutory provisions and the aspects of
Roman-Dutch law thereby retained. In that case specific performance against
a volunteer transferee can be granted "on the same principles as it is
granted in England" albeit with a different doctrinal underpinning.
Obviously, if specific performanceagainst a volunteer would have been
possible under the Roman-Dutch law in Guyana before 1917, the question
whether the principle can be separated from its English underpinning will be
answered affirmatively.
SPECIFIC PERFORMANCE AGAINST A VOLUNTEER IN ROMAN-DUTCH LAW
[52] As we have noted before, equity was not unknown to the civil law. It
was always part of Roman and Roman-Dutch law but it was never, as in English
law, a distinct or separate jurisdiction. The courts of Guyana are enjoined
by s. 3(b) of the Civil Law of Guyana Act, Cap. 6:01, to "administer the
doctrines of equity in the same manner as the High Court of England
administers them", but they must recognize that, in the words of de Villiers
CJ, they "can administer equity only so far as consistent with the
principles of Roman-Dutch law"[FN25]. This is a dictum that is also known
and has been quoted in Guyana[FN26]. Given the special position of the core
of Guyanese land law, as laid down in s. 3(d)(i) and (ii) of the Civil Law
of Guyana Act, Cap. 6:01, and in the Deeds Registry Act, Cap. 5:01, it is
necessary to analyse the relevant Roman-Dutch law in order to establish if
and to what extent this law and the English doctrines of equity can be
harmonized. No specific Guyanese case law was cited to us on this issue, nor
did we find any. But it would clearly seem prudent to pay special regard to
developments in the law of South Africa, given the many similarities between
the Roman-Dutch Law in that country and in Guyana, as evidenced by the many
Guyanese judgments in which South African cases were cited and relied upon[FN27].
All the more so because of the fact that the issue at hand lies squarely in
the area of general Roman-Dutch property law and more particularly in the
field of transfer of land and registration of deeds, in which the law in
Guyana is closely modeled after the South African system. So, again, we
return to the Roman-Dutch law in South Africa.
----------------------------------------------------------------------------------------------------------------
[FN25] In Mills and Sons v Benjamin's Trustee (B. 1876, at p. 211), see
Ramsahoye, op cit pp 273-274.
[FN26] See Ramsahoye, op cit p 274
[FN27] See Ramsahoye op cit p 17 and, by way of example, Barry v Mendonca
(1923) LRBG at 107-111 where Douglass J cited both South African and English
cases
----------------------------------------------------------------------------------------------------------------
[53] It might come as something of a surprise that the current position of
the Roman-South Africa with regard to the making of orders for specific
performance against volunteers is quite similar to that in English law. The
position is succinctly stated in Silberberg and Schoeman's The Law of
Property: "A successor who acquires a real right gratuitously (ex titulo
lucrativo) has to observe undertakings of his or her predecessor with regard
to the thing even in the absence of knowledge on his or her part."[FN28]
Similar statements of the law can be found in most of the relevant
commentaries[FN29], albeit not always without criticism. [FN30] Although it
would appear that this part of the law is not as firmly rooted in ancient
Roman-Dutch law as, for example, the doctrine of notice as described at
paras. [29] - [33] and its theoretical basis is still somewhat in doubt[FN31],
it is clearly accepted as Roman-Dutch law.
----------------------------------------------------------------------------------------------------------------
[FN28] Op cit p 88
[FN29] See Mohamed Paleker, Succession; C G van der Merwe and A. Pope,
Servitudes and other real rights, and D. Hutchison and F. du Bois, Contracts
in general, contributions published in Wille's Principles of South African
Law, 9th edition, pp 668-637, 627 and 814 respectively; see also
Honore-Cameron, South African Law of Trusts, 5th ed., para. 356
[FN30] See eg W E Cooper, Landlord and Tenant, 2/1994, pp 282-284
[FN31] See Gerard Lubbe op cit p 251
----------------------------------------------------------------------------------------------------------------
[54] The analysis would have to start with the law of succession. In
Roman-Dutch law two separate distinctions are made: the first is between
universal successors (ex titulo universali) and particular or singular
successors (ex titulo particulari or singulari), and the second is between
onerous successors (ex titulo oneroso) and gratuitous or lucrative
successors (ex titulo lucrativo), known in Guyana respectively as successors
for value and volunteers. The essential difference between a universal
successor and a particular successor is that the former takes over both the
assets and liabilities of his predecessor whereas the latter takes over only
a particular asset but no liabilities.[FN32] It is for this reason that a
universal successor is by definition bound to honour an agreement to sell an
asset (including immovable property) entered into by his predecessor with a
third party. Such a contract creates a personal right in the purchaser to
acquire a real right in the property. This right which has been described by
this Court in Ramdass v Jairam and in Ramdeo v Heralall[FN33] as a jus in
personam ad rem and in South African jurisprudence and literature as a jus
in personam ad rem acquirendam, is binding on the universal successor even
if the contract is not registered and even if the universal successor has no
knowledge of it.
----------------------------------------------------------------------------------------------------------------
[FN32] Cooper op cit pp 281-282
[FN33] [2009] CCJ 3(AJ)
----------------------------------------------------------------------------------------------------------------
[55] Traditionally, heirs and administrators of intestate estates or
executors of wills were counted among the universal successors ie the
successors who would be bound by prior obligations (ad rem) of their
predecessors, whereas purchasers, legatees, usufructuaries and donees were
examples of the typical particular successor who would not be so bound. What
occurred in the South African courts was a shift in focus from the
universal-particular succession dichotomy to one where the emphasis was
instead on whether or not one was a successor for value. Clearly, universal
successors are always "volunteers" whereas the purchaser for value, an
onerous successor, is the most prominent particular successor. In time, the
courts gradually came to interpret the category of particular successors in
this context as limited to successors for value only. This development was
obviously influenced by English law and occurred against the background of
existing and emerging Roman-Dutch principles of equity which tended to
soften the rigour of the civil (Roman) law. For present purposes, it does
not seem necessary to extensively explore the relevant Roman-Dutch case law,
but it might be useful and illustrative to touch briefly on some of the most
important cases from the period before 1917.
[56] The 1887 case of Van Veuren v Van Veuren34, concerned a contract
between a father and his son for the transfer (for good consideration) of
two farms to the son on the death of the father. Afterwards the father, a
widower, remarried. The second wife had no knowledge of the contract when
she married the father in community of property. Inevitably, when the father
passed away, there was a dispute between the widow and the son. The widow
contended that as there was no registration of the son's rights and as the
farms were registered in the father's name, the son had only a jus in
personam upon the contract. According to the widow, her claim to her half of
the joint estate took preference. In an extremely concise judgment, De
Villiers CJ stated: "This is ... a case where the father was the owner of
two farms, which he bound himself by a binding contract to transfer to his
son, and the defendant, the second wife, obtained no right in respect of
these farms except a right subject to the son's claim. The son is in exactly
the same position as a purchaser. If A bought land from B and paid the price
and B then married and afterwards died, A could compel B's executors to give
him transfer."
----------------------------------------------------------------------------------------------------------------
[FN34] 5 SC 415
----------------------------------------------------------------------------------------------------------------
[57] In Jansen v Fincham (1892)[FN35], a case about a non registered
servitude, De Villiers CJ contrasted the position of a purchaser (onerous
successor) on the one hand with that of an heir, legatee, or donee, on the
other hand. He then reasoned: "It is as the particular successor of Naude
that the defendant acquired his right of ownership [of the land]. If those
rights were acquired bona fide and for value the absence of registration [of
the servitude] is fatal to the plaintiffs claim. If, however, these rights
of ownership were not acquired bona fide or for value, the defendant cannot,
as against the plaintiff, claim greater rights than Naude himself possessed."
----------------------------------------------------------------------------------------------------------------
[FN35] 9 SC 289
----------------------------------------------------------------------------------------------------------------
[58] In 1908, the Natal court gave judgment in the case of Antje Komen v
Hendrik de Heer and Others[FN36]. The plaintiff in this case was a widow who
under her husband's will was bequeathed the lifetime use and enjoyment of
the whole of his estate of which a part was leased to De Heer and others.
The judgment of the court was given by Broom J who acknowledged that: "The
position of the plaintiff as usufructuary for life is, of course, different
from that of a universal heir." The judge further stated: "The plaintiff
took the usufruct from the testator under a lucrative, as distinguished from
onerous, title. In the widest sense of the term, no doubt, she is a singular
successor, but her position as usufructuary is very different from that of a
purchaser or creditor for value... The plaintiff ... gave no value...".
Earlier in the judgment Broom J held "that the plaintiff as universal
usufructuary can only claim what is left after satisfying the obligations of
the testator, and as the lease is included in the obligations of the
testator, she can only get it subject to that obligation." Considering the
authorities, he explained that: "There appears to be ground for holding that
in its primary meaning the term particular or singular successor in this
connection would indicate a purchaser, or one acquiring ex oneroso titulo"
----------------------------------------------------------------------------------------------------------------
[FN36] 29 NLR 237
----------------------------------------------------------------------------------------------------------------
[59] Having reached this point in tracing the development of Roman-Dutch
jurisprudence, nine years before Guyana separated itself for the most part
from that great body of law, we can now draw some definitive conclusions.
While it is true that Roman-Dutch law in South Africa in the course of the
twentieth century further developed what would become a general doctrine ie
that volunteers who acquire a real right, in whatever form, are bound by an
undertaking of their predecessor with regard to the thing to which the real
right adheres whether they have knowledge of that undertaking or not, all
the basic elements of that doctrine were already firmly in place before
1917.
[60] Remarkably, there are no South African cases reported which deal with
the application of this doctrine in cases where, as in the case before us,
the heir to immovable property which has been transported to him, is called
upon to transfer that property to a purchaser from his predecessor. But
there is a 1971 case which seems to be in point: Van der Pol v Symington[FN37].
In that case the original lessor of a farm, a lady, who had granted the
lessee an option to purchase, had died during the currency of the lease.
After her executor had transferred the farm to the heir (her son), the
lessee sought to exercise the option against the son. Hiemstra J held that
the son was bound by the option, even if he had not known of it, on the
basis that he was a gratuitous successor to the original lessor. The judge
acknowledged that he had no direct authority but stated that the case could
and should be decided on principle while referring to the case of Jansen v
Fincham, mentioned above, and Oliver v Matzner and Matzner,[FN38] a 1942
case about servitudes. The 1971 case is now clear authority for the
proposition that under Roman-Dutch law even if the property concerned has
been transferred to the heir, the latter is still subject to the earlier (personal)
right ad rem in the same way that would have been the case under English law.
But the basis for that conclusion was already laid in the old case law.
----------------------------------------------------------------------------------------------------------------
[FN37] 1971 (4) SA at 472-475 (reported in Afrikaans with an English summary);
also briefly discussed by Hurt AJA (Supreme Court of Appeal of South Africa)
in Spearhead Property Holdings Ltd v E & D Motors (Pty) Ltd (214/2008)
[2009] ZASCA 70 at para. 56.
[FN38] 1942 TPD 324-334
----------------------------------------------------------------------------------------------------------------
CONCLUSIONS
[61] On the strength of the above it is apparent that there is indeed a
proper legal basis for Roy J's seemingly bold assertion that Letitia and her
children were bound by the agreement between their predecessor, Solomon and
Sukhree. Both on principle and on the authorities, the Court concludes that
the equitable principles as applied in England with respect to specific
performance against a volunteer are compatible with Roman-Dutch Law or any
Guyanese statute, notably the Civil Law of Guyana Act, which retained and
codified part of that law. The Court is therefore of the view that section
3(d)(iii) of the latter Act, properly construed, does indeed fully apply in
this case. The heirs of Solomon are bound by the agreement because they are
volunteers as against Sukhree who was a purchaser for value. Ultimately, any
other conclusion would seem absurd as the land law of Guyana is an amalgam
of both Roman-Dutch law and English law, and both would have come to the
same result: the granting of specific performance against the heirs.
[62] As appears from the Roman-Dutch authorities, it is clear that
Roman-Dutch law reaches the same conclusion as English law without relying
on the doctrine of equitable interests in land. It cannot therefore be said
that a grant of specific performance in the circumstances of this case is
tantamount to the introduction through the backdoor of equitable proprietary
rights or interests. In this connection it is interesting to note that a
similar equitable doctrine seems to have developed in Scotland which is also
a so-called "mixed jurisdiction" with civilian roots somewhat comparable to
Guyana. Scottish property law also knows the concept of full ownership (dominium)
and consequently also rejects the existence of equitable interests. In that
jurisdiction "the rule is that a real right granted in breach of a
pre-existing contract or other obligation is voidable at the instance of the
creditor in that obligation if the grantee knew of the obligation or if the
grant was not for value."[FN39] This rule against "Offside Goals" as it is
now prosaically called in Scotland is "an exception to the usual rule that a
purchaser or other grantee takes property free from the personal obligations
of his author."[FN40] The position of the grantee not taking for value (a
volunteer) has in some cases been analysed by reference to the principles of
unjust enrichment[FN41], a reference which can also be found in some South
African commentaries.[FN42]
----------------------------------------------------------------------------------------------------------------
[FN39] See Kenneth G C Reid et al, The Law of Property in Scotland (1996),
para. 695
[FN40] See Reid ibid.
[FN41] See Scottish Law Commission in Discussion Paper No. 125 on Land
Registration: Void and Voidable Titles (2004), p 65
[FN42] See eg Tony Honore, Trusts, the Inessentials p 22 (users.ox.ac.uk/~alls0079/Burn.pdf),
and M.J. de Waal and RRM Paisley, Trusts, in Mixed Legal Systems p 838
----------------------------------------------------------------------------------------------------------------
[63] More importantly, however, the difference between the English and the
Roman-Dutch systems of equity can be shown when applying the "acid test" of
insolvency. Whilst in English law the purchaser of land or some unique
chattel has an equitable proprietary interest that is unaffected by the
vendor's insolvency, in Roman-Dutch law which does not recognize such
equitable interests in land, the purchaser has only a personal right, which
means that in case of the vendor's insolvency the property, which is the
subject of the agreement for sale, falls into the pool of assets available
to the general creditors with whom the purchaser must compete in pursuing
such monetary claims as he may have. This is also the case in Guyana where
this position has been "codified" in s. 39(5) of the Insolvency Act, Cap.
12:21: "No contract for the sale of any interest in immovable property ...
shall be of any force or give any right of preference which has not been
completed by transport ... duly passed before the Court or a judge; except
that the creditor may claim under his contract as a concurrent creditor
against the debtor's estate."
[64] This Court is aware of the fact that its conclusions might at first
sight seem to derogate somewhat from the indefeasibility of transports as it
is sometimes perceived to have been ordained by s. 23 of the Deeds Registry
Act, Cap. 5:01. It has to be noted, though, that this indefeasibility has
never been absolute and certainly not as strongly preserved as under the
Land Registry Act[FN43]. One of the better known exceptions to the
indefeasibility of transports is the acquisition of land by prescription
which is not disturbed by this provision. There are other exceptions[FN44].
Upon further reflection, however, it will be appreciated that the transport
itself is not vitiated by a successful action brought by a prior purchaser
and based upon an equitable principle. The transport stays intact. If the
action succeeds it only means that the transport has to be passed to the
purchaser on the basis of a personal obligation. If that obligation was not
personal, it would survive even a bankruptcy but in Guyana at least it does
not. In cases like these the perceived certainty and efficiency of the
Guyanese Deeds Registry system are not eroded disproportionately (if at all)
by allowing the action. In this particular case no reliance on the register
by innocent third parties was involved and the property which the
respondents are required to surrender (for which they gave no consideration)
should never have been transferred to them in the first place. The broader
effect of this decision is therefore at its highest a cautious and limited
recalibration of the balance between legal certainty and equity.
----------------------------------------------------------------------------------------------------------------
[FN43] Although even with respect to the Land Registry Act in personam
exceptions would seem possible, see Hayton J in Ramdeo v Heralall [2009] CCJ
3 (AJ) especially at paras. [38-40]
[FN44] See eg Coddett v Thomas (1957) LRBG 181-183
----------------------------------------------------------------------------------------------------------------
[65] For completeness' sake, there is one other issue that needs to be
addressed. That is "the law and practice relating to the right of opposition
in the case of ...transports" as enacted in the Civil Law of Guyana Act (section
3 (d) (ii)), the Deeds Registry Act (sections 23 and 29) and the Deeds
Registry Rules (rules 7, 8 and 9). This part of the law is peculiar to
Guyana and cannot be found in South Africa or any other existing Roman-Dutch
jurisdiction. Under this law any transfer of immovable property has to be
publicly announced or advertised in the Official Gazette well in advance of
the transfer in order to enable interested parties to preserve their rights.
These parties might be persons claiming a right relative to the property (in
or ad rem) or they may be unsecured creditors with a liquidated claim
against the owner of the property, though not necessarily related to it. It
would appear that this system has some bearing on the law in the context of
this case. It does not, however, as was suggested by counsel for the
respondents, preclude the application of s. 3(d)(iii) of the Civil Law of
Guyana Act.
[66] The fact that a purchaser has the right to oppose a transfer to another
person of the land previously purchased by him, does not mean that, if such
an opposition has not been filed or pursued, the purchaser is prohibited
from seeking an order for specific performance. On the contrary, as a rule
an interested party will only be deprived of his rights if he has actual
notice of the transaction affecting them and although in a position to do so,
takes no steps to oppose, or, having filed an opposition, withdraws it
without proper justification.[FN45] Further, the personal right of the
purchaser to compel the vendor or his successors to transfer the title to
property to him, is not absolute but is always subject to the rights of the
creditors of the vendor or those of his successors "if duly established and
enforced against the land in the mode by law prescribed." [FN46]
----------------------------------------------------------------------------------------------------------------
[FN45] See Ramsahoye op cit p 248 and 268 (footnotes 66 and 67); see also
Gondchi v Hurrill, (1931-7) LRBG 509, 511
[FN46] Re C O Andrews ex parte The Administrator General, (1901) Official
Gazette, 28 September 737
----------------------------------------------------------------------------------------------------------------
[67] It is public knowledge that the efficiency of the Guyanese system of
land transfer has substantially deteriorated in the last few decades. But
for many years it appears to have functioned quite well. This could provide
one explanation for the dearth of Guyanese case law in the area of "double
sales". In fact, many dubious transfers of immovable property in Guyana were
actually prevented because of the existing system of advertisements and
opposition.[FN47] It was in such an opposition case, Bhoolai v Girwar
andMohamed Sadiq[FN48], that Duke J (Ag) stated the law in Guyana as follows:
"An owner of land is entitled to give it away but he must do so in the
proper manner, that is to say, by passing transport which may be opposed by
any person to whom he has by an existing enforceable contract of sale agreed
to sell it. An owner of land is at liberty to consent to judgment for a debt
which does not exist in fact, thereby causing his land to be taken in
execution for non-payment of the execution debt, but he is not so entitled
where he has by a pre-existing enforceable contract of sale agreed to sell
the land to another person. Where there is such a contract, the judgment by
consent would be obtained in fraud of the rights of the purchaser under the
contract, and the purchaser would have a right to oppose the sale at
execution, for non-payment of the debt, of the land which was the subject of
the contract of sale. It would be immaterial that the judgment creditor did
not know of the pre-existing contract of sale by the owner of the land who
has consented to judgment, because the judgment creditor would be a
volunteer and would have acquired the judgment otherwise than by way of
valuable consideration" (emphasis added). As we have shown, this is exactly
the position in the case of an unopposed transfer.
----------------------------------------------------------------------------------------------------------------
[FN47] See E M Duke, A Treatise on The Law of Immovable Property in British
Guiana, 1923, pp 19-21
[FN48] (1944) LRBG 88
----------------------------------------------------------------------------------------------------------------
LIMITATION AND LACHES
[68] In this case the heirs were bound by the agreement between Solomon and
Sukhree, and so the latter was entitled to commence an action against the
heirs for specific performance. As this action is not based on the proviso
to s. 23 of the Deeds Registry Act, Sukhree was not bound by the limitation
period laid down in that proviso. An action for specific performance is an
equitable remedy which means that the general rules of equity, including
those concerning laches, apply in accordance with s. 3 (b) and 3(d)(iii) of
the Civil Law of Guyana Act, Cap. 6:01.
[69] Counsel for the respondents cited a passage from the Court of Appeal
decision in this case which he suggested was "most germane to the issue at
hand." In that passage the Court of Appeal stated that Sukhree's claim for
damages for breach of contract was made well outside the three year
statutory limitation period prescribed by s. 8 of the Limitation Act, Cap.
7:02, and the Court noted "en passant, that, if the common law remedy for
breach of contract has been debarred by the Limitation Act, the equitable
remedy of damages cannot be granted as a corresponding or substitute remedy".
It then went on to say that: "Equity follows the common law and the
equitable remedy of specific performance is in practice granted where
damages will not be an adequate remedy - not where equity is no longer
legally available". By expressly adopting those words, counsel for the
respondents apparently seeks to argue that Sukhree's action for specific
performance could be barred using statutory limitation by way of analogy.
[70] This argument is clearly wrong. An equitable action for damages cannot
be compared with an equitable action for specific performance. It would be
distinctly inequitable for a court of equity, a court of conscience, to be
compelled to apply a rigid limitation period taking no account of the
justice of each case. Indeed, the law reports are replete with cases where
specific performance has been decreed well after such a rigid limitation
period has expired. While equity provides a remedy by way of specific
performance and the common law by an award of damages, "even if it is
appropriate to analogize from the common law, the analogy will be governed
by the parameters of the equitable doctrine of laches."[FN49] This Court is
in agreement with this statement of the law. There is no need to say more on
this point.
---------------------------------------------------------------------------------------------------------------
[FN49] La Forest J in M. (K.) v M. (H.) [1992] 3 SCR 6
---------------------------------------------------------------------------------------------------------------
[71] Counsel for the respondents, however, did also invoke the defence of
laches on at Sukhree had waited unreasonably long before she filed this
action. After all, he averred, it was only in 1993 that she filed this
action for specific performance while the breach of contract had already
occurred in 1984.
[72] In order to successfully invoke laches as a defence it is not enough to
plead and prove mere delay. It is usually necessary to establish (1) that
the action has been commenced after an unreasonably long period and (2) that
the party against whom the action was launched has been prejudiced[FN50].
The leading case on laches is still the Privy Council case of Lindsay
Petroleum Co v Hurd[FN51] in which the Lord Chancellor, Lord Selborne, said:
"Where it would be practically unjust to give a remedy, either because the
party has, by his conduct, done that which might fairly be regarded as
equivalent to a waiver of it, or where by his conduct and neglect he has,
though perhaps not waiving that remedy, yet put the other party, in a
situation in which it would not be reasonable to place him if the remedy
were afterwards to be asserted, in either of these cases, lapse of time and
delay are most material. But in every case, if an argument against relief,
which otherwise would be just, is founded upon mere delay, that delay of
course not amounting to a bar by any statute of limitations, the validity of
that defence must be tried upon principles substantially equitable. Two
circumstances, always important in such cases, are, the length of the delay
and the nature of the acts done during the interval, which might affect
either party and cause a balance of justice or injustice in taking the one
course or the other, so far as relates to the remedy". The Court recalls
that this authority was also appropriately cited and relied on by the Chief
Justice when he dealt with this defence.
---------------------------------------------------------------------------------------------------------------
[FN50] See I C F Spry, The Principles of Equitable Remedies; Specific
Performance, Injunctions, Rectification and Equitable Damages, 2001 p 235:
"... a court with equitable jurisdiction, when it is deciding whether the
defence of laches should prevail, enquires whether there has been, first,
unreasonable delay by the plaintiff, and secondly, any consequent prejudice
or detriment to the defendant or third persons in ordering specific
performance." See also Meagher Gummow and Lehane's Equity, Doctrines &
Remedies, 4th edition, 36-20 and Snell's Equity, 31st edition, 5-19. Further
Lord Neuberger of Abbotsbury in Fisher v Brooker [2009] UKHL 41 at para. 64
and 79 emphasising the significance of detrimental reliance.
[FN51] (1874) LR 5 PC 239-240
---------------------------------------------------------------------------------------------------------------
[73] Although the Court is in full agreement with the respondents that a
very long time (nine years) had gone by before Sukhree filed her action in
the High Court, it is evident on the facts of the case that almost seven of
those nine years were lost due to Letitia's deceit. Even if one takes the
view that Sukhree had waited unreasonably long before bringing her action
after she discovered what Letitia had done, it would still be difficult to
establish laches on Sukhree's part. Obviously, at no point in time could her
conduct have been interpreted as acquiescing in the situation, not between
1984 and 1991, when she regularly visited Letitia to enquire about a
possible date for the passing of the transport, nor between 1991 and 1993,
when she upon discovery of the deceit followed Letitia all the way to the
USA to confront her and subsequently filed several actions in Court to
pursue her right to the property. Furthermore, not only did the respondents
never allege any prejudice because of the delay, but also the evidence in
the case does not disclose any prejudice or detriment suffered by them. On
balance, it would not be just to bar Sukhree's action. The defence of laches
can, therefore, not successfully be invoked. It follows that the appeal must
be allowed.
DECISION
[74] The appeal is allowed.
The respondents shall convey to the appellant within eight weeks of the date
of this order the property described as Lot 22, Section B, Plantation
Ruimzight, West Coast Demerara, upon payment of the balance of the purchase
price, failing which the Registrar of Deeds is authorised and empowered to
do so
The respondents shall pay the appellant the costs of these proceedings in
this Court and in the courts below, such costs to be taxed unless agreed.
JUDGMENT OF THE HONOURABLE MR. JUSTICE NELSON
[75] I have reached the same conclusion as my learned colleagues, but have
done so by a somewhat different route.
[76] At the time when this action was brought in 1993 to enforce an
agreement for sale between Solomon and Sukhree on March 21, 1980 in respect
of Lot 22 Section B, Ruimzight, West Coast Demerara, (the disputed land")
the respondents were the registered proprietors of the disputed land.
[77] In obtaining letters of administration of the disputed land the
administratrix went through the administration procedures provided by the
Deceased Persons Estates' Administration Act, Cap. 12:01. This procedure
involves notice to the public and the right of an interested person to lodge
a caveat. Letters of administration were duly granted to Letitia in August
1983. No claim was made against Solomon's estate by the appellant.
[78] Letitia then vested the disputed land in the respondent beneficiaries
including herself. The statutory procedure required notice of the impending
transport of title to be advertised in the Gazette. There was an opportunity
for any objector, even a simple unsecured creditor, to object to the
transport: see proviso (ii) to section 3 of the Civil Law of Guyana Act, Cap
6:01. The passing of transport is a public judicial proceeding: see section
12 of the Deeds Registry Act, Cap. 5:01 and Rules 6 and 8 of the Deeds
Registry Rules. No objection has been taken to the procedure leading up to
registration.
[79] No issue arose in the courts below or in this Court as to the state of
mind of Sukhree in relation to the facts above recited. Ultimately the state
of mind of Letitia and Ashford (which could conceivably fall within an
expanded definition of fraud) could not be attributed to the next-of-kin
beneficiaries collectively. The state of mind of the respondents or fraud is
therefore not relevant to this appeal.
[80] In my judgment, given the facts accepted by the Court of Appeal, the
resolution of the issues in this appeal lies within the very narrow compass
of the proper construction of the relevant Guyanese statutes. For ease of
reference I set out hereunder the relevant provisions, so far as is material:
THE CIVIL LAW OF GUYANA ACT, CAP. 6:01
"3. From and after the date aforesaid �
a. the law of Guyana relating to wills ... movable or personal property,
immovable or real property and chattels real, and all matters relating to
any of the aforesaid subjects, and the law of Guyana relating to all other
matters whatsoever, whether ejusdem generis with the foregoing or not, shall
cease to be Roman-Dutch law, and as regards all matters arising and all
rights acquired or accruing after the date aforesaid, the Roman-Dutch law
shall cease to apply to Guyana;
b. ...
c. the English common law of real property shall not apply to immovable
property in Guyana;
d. ...
Provided that �
(i) immovable property may be held as heretofore in full ownership, which
shall be the only ownership of immovable property recognized by the common
law and shall not be subject to any rule of succession by primogeniture or
preference of males to females, or to any other incident attached to land
tenure or to estates in lands in England and not attached to personal
property in England ;
(ii) the law and practice relating to conventional mortgages or hypothecs of
movable or immovable property, and to easements, profits a prendre, or real
servitudes, and the right of opposition in the case of both transports and
mortgages, shall be the law and practice now administered in those matters
by the Supreme Court;
(iii) the relief by judgment for specific performance shall be granted in
the case of immovable property on the same principles on which it is granted
in England in the case of contracts relating to land or to interests in land;"
[81] In the context of Guyanese property law which does not recognize
equitable interests in land[FN52], how can specific performance of a
contract of sale of land between V and P be granted against V's successor in
title in favour of P, where in English law specific performance would be
granted to P on the basis that V's successor in title took subject to P's
equitable interest? In Guyanese law what do the words in the third proviso
to section 3 of the Civil Law of Guyana Act ("the third proviso") mean - "on
the same principles on which it is granted in England in the case of
contracts relating to land or interests in land"?
THE DEEDS REGISTRY ACT, CAP. 5:01
23. (1) From and after the 1st January, 1920, every transport of immovable
property other than a judicial sale transport shall vest in the transferee
the full and absolute title to the immovable property or to the rights and
interest therein described in that transport, subject to �
a. statutory claims;
b. registered incumbrances;
c. registered interests registered before the date of the last advertisement
of the transport in the Gazette;
d. registered leases registered before the date of the last advertisement of
the transport in the Gazette:
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, or from the 1st
October, 1925, whichever is the more recent."
"12(3) All transports and mortgages passed after the commencement of this
Act shall be registered by the Registrar and filed as of record in the
registry."
----------------------------------------------------------------------------------------------------------------
[FN52] Ramdass v Jairam (2008) 72 WIR 270; and cases at footnotes 1-6 of
[22] of Ramdass v Jairam (supra); Vansluytman v New Building Society (1996)
54 WIR 270, 276
---------------------------------------------------------------------------------------------------------------
[82] In the Guyanese Deeds Registry system does registration of a subsequent
dealing extinguish all prior unregistered interests subject to any
exceptions as to indefeasibility mentioned in section 23 of the Deeds
Registry Act? It is clear that the fraud exception does not arise because no
fraud can be proved in relation to the registration of the beneficiaries'
title. Would specific performance lie against heirs to land under an
intestacy (a) where their deceased predecessor in title entered into a
contract for the sale of land and title had been vested in them after his
death and (b) where 9 years' delay in bringing such an action is treated as
not unreasonable in the circumstances?
THE MEANING OF THE THIRD PROVISO
[83] In my judgment the drafters of the Civil Law of British Guiana
Ordinance intended that full and absolute ownership was to be the "only
ownership of immovable property" recognized in Guyana from January 1, 1917:
see the first proviso to section 3. It is also clear that the doctrine of
estates in lands, including the judicial recognition of obligations of an
estate owner to deal with land in a particular way (equitable estates), was
not recognized in Guyanese law.
[84] The drafters of the Civil Law Ordinance were also aware that by section
3(c) the English common law of real property was being abrogated and
replaced by the English common law of personal property.
[85] Thus, when the drafters of the Civil Law Ordinance referred in the
third proviso to specific performance being granted "in the case of
contracts relating to land or interests in land" they did not intend by a
side wind to re-introduce the regime of equitable estates and interests in
land from English real property law. That phrase merely identifies a type of
contract for which specific performance is available in English law and does
not import substantive English real property law. It would have made no
difference if the availability of specific performance in Guyana was
referenced to the availability of that remedy in England in relation to the
sale of unique chattels.
[86] The phrase "the same principles on which it is granted in England"
signifies that the remedy of specific performance is available in Guyana on
the same general principles that govern the exercise of specific performance
in English law. For example, specific performance will not be granted to a
volunteer under a voluntary agreement[FN53]. Another well-known principle is
that specific performance is a discretionary remedy.
----------------------------------------------------------------------------------------------------------------
[FN53] Re Anstis (1886) 31 Ch D. 596
----------------------------------------------------------------------------------------------------------------
[87] Thus, a Full Bench of this Court contemplated in Ramdass v Jairam[FN54]
at [17] that, although the appellant acquired no equitable interest in the
land purchased from Loki, he was entitled to seek from Loki an order for
specific performance of the agreement for sale under the third proviso to
section 3 of the Civil Law of Guyana Act if title to the land remained
vested in her. Specific performance of a contract for the sale of land is
thus available in Guyana to a party although the contract of sale creates no
equitable interest in the land. In my judgment the same principle would
apply to the person who took the land from the owner without providing any
consideration[FN55]. I would therefore hold that the heirs of Solomon upon
an intestacy would themselves be prima facie exposed to an action for
specific performance.
----------------------------------------------------------------------------------------------------------------
[FN54] (2008) 72 WIR 270
[FN55] 44(1) Halsbury's Laws of England (Fourth Edition, Reissue) para. 915
where this exception to the doctrine of privity is set out.
----------------------------------------------------------------------------------------------------------------
THE INDEFEASIBILITY POINT
[88] Although the Deeds Registry Act does not use the word "indefeasible",
the term can be used to describe the result of proper registration of title
pursuant to section 23. It is not suggested that title under the transport
land system is as cast-iron as title under the Torrens system or the Land
Registry system of Guyana.
[89] The plain words of section 23(1) of the Deeds Registry Act say that "every
transport shall vest in the transferee the full and absolute title". The
question is whether under the transport land system of Guyana ("the Deeds
Registry System ") a volunteer, like a transport holder who has bought the
land, is entitled to the protection of the register. That cannot be
determined without asking how conclusive is entry on the register in the
Deeds Registry System? Are there any exceptions to indefeasibility other
than the statutory ones?
[90] In Australia where the Torrens system legislation has an
indefeasibility clause some jurisdictions have held that such a clause
protects a registered proprietor who is a volunteer. New South Wales and
Western Australia have accorded protection to volunteers: Bogdanovic v
Koteff[FN56] applying the principle of indefeasibility in Frazer v Walker[FN57]
and approved in Breskvar v Wall[FN58]; Conlan v Registrar of Titles[FN59]
where Owen J examined the cases and held that "the doctrine of
indefeasibility can apply to the holder of a registered interest where the
proprietor has been registered through a voluntary transaction.": see [200].
----------------------------------------------------------------------------------------------------------------
[FN56] (1988) 12 NSWLR 472
[FN57] [1967] AC 569 (P.C.)
[FN58] (1971) 126 CLR 376
[FN59] (2001) 24 WAR 299; [2001] WASC201
----------------------------------------------------------------------------------------------------------------
[91] Victoria and South Australia have denied protection to volunteers. The
leading case is King v Smail[FN60]. It is to be noted that this case was
decided before the Privy Council decision in Frazer v Walker (supra) where
it was held that a third party acquired a good title from a registered
proprietor who had bought from a fraudster, even if the instrument of
transfer was forged and was otherwise void. In Rasmussen v Rasmussen[FN61]
Coldrey J followed King v Smail (supra). The divergence of opinion in the
Australian jurisdictions is in my view due to differing perceptions as to
how "rock-solid" the register should be. The same problem faces Guyana.
----------------------------------------------------------------------------------------------------------------
[FN60] [1958] VR 273
[FN61] [1995] VR 613
----------------------------------------------------------------------------------------------------------------
[92] At the end of the day the courts have already eroded the
indefeasibility of the register in the Deeds Registry System: see Toolsie
Persaud Ltd v Andrew James Investments Ltd et al[FN62] a decision of this
Court. Any further erosion of the indefeasibility principle by the judges
must be based on a policy choice between the certainty and security of title
when once on the register i.e public confidence that there is no return to
the uncertainties of title searches, and on the other hand the unfairness of
reversing the land title of a successor in title by gift or inheritance. In
the instant appeal in which the Court of Appeal has upheld a finding that
there was an excusable delay of nine years in approaching the courts, it is
open to the courts to hold that in certain cases, of which the present
factsprovide one example, the courts will treat a successor in title who has
not given value as bound by a contract of sale made by an immediate
predecessor in title with a third party. On the present facts public
confidence in the reliability and security of the register will not be
destroyed where a purchaser has been in possession of most of the land since
1980 and the land has been transferred to volunteer beneficiaries against
whom specific performance is available in Guyana law. I would hold that
specific performance would lie against the next-of-kin beneficiaries and
that for present purposes the register is not indefeasible.
----------------------------------------------------------------------------------------------------------------
[FN62] (2008) 72 WIR 292
----------------------------------------------------------------------------------------------------------------
[93] In Dennis Li v Lucy Walker[FN63] Acting Chancellor Luckhoo admonished
that a court in interpreting section 3(a) of the Civil Law of British Guiana
Ordinance should not lose sight of "the main object of the Ordinance, namely,
the abrogation of the Roman-Dutch law". I have respectfully borne this
admonition in mind in arriving at my conclusion.
----------------------------------------------------------------------------------------------------------------
[FN63] (1968) 12 WIR 195, 204
----------------------------------------------------------------------------------------------------------------
CONCLUSION
[94] I would accordingly allow the appeal and make the same orders as those
contained in the joint judgment of my learned colleagues. |
|