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TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Cv. 2009-4675

BETWEEN

IMTIAZ ALI Claimant

AND

STEVE GANEESINGH 1st

Defendant

HARRY PERSAD 2nd

Defendant

DHARMINDRA PERSAD 3rd

Defendant

BEFORE THE HONOURABLE MADAM JUSTICE M. DEAN-ARMORER

APPEARANCES

Mr. Samuel Saunders, Attorney-at-Law for the Claimants.

Mr. Asaf Hosein instructed by Ms. Nisha Persad, Attorneys-at-Law for the Defendants.

JUDGMENT

Introduction

1. This action was instituted pursuant to part 69 of the Civil Proceedings Rules (C.P.R.)

19981. The claimant, as mortgagee, sought orders for possession and repayment of the

outstanding debt. In the course of this decision, the Court considered the circumstances in

which an order for possession should be made.

Procedural History

2. On the 15th

December, 2009, the claimant filed a fixed date claim form seeking the

following relief:

1 Civil Proceedings Rules (CPR) 1998

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“(1) Possession of ALL AND SINGULAR that certain piece or parcel of

land situate in the Ward of Chaguanas…comprising NINE

THOUSAND AND THIRTY ONE SUPERFICIAL FEET…delineated

and coloured pink and shown as Lot No. 9 on the plan attached to and

registered as No. 17329 of 1964…2

(2) Repayment of the sum of $344,500.00”

3. The claimant experienced difficulty in effecting service on the defendants and obtained the

Court’s permission to effect service by placing an advertisement in a daily newspaper of

general circulation in the Republic of Trinidad and Tobago.

4. In May, 2011, when this action came up for case management there was an appearance for

the second and third defendants only. The Court granted permission to the second and

third defendants to file affidavits in opposition to the claim.

5. The Court subsequently directed that the filed affidavits be treated as pleadings, that is to

say that the affidavit of the claimant be treated as the statement of case and the affidavit of

Harry Persad, the second defendant be treated as a statement of defence. The Court then

proceeded to give standard pre-trial directions.

6. This matter was listed for trial on the 3rd

and 4th

February, 2014. On the second day of

trial, the second defendant, Harry Persad, after having taken the oath, began complaining

of pains in his chest. He became gravely ill and had to be taken to hospital. The

defendants subsequently filed a hearsay notice indicating their desire to have the witness

statement of the second defendant tendered in to evidence on the ground that he was

suffering from a myocardial infraction.

2 “The Subject Property”

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Evidence

7. The Court heard the evidence of four (4) witnesses: the claimant, Imtiaz Ali; attorney-at-

law, Nisha Allahar; the third defendant, Dharmindra Persad and the forensic examiner, Mr.

Glenn Parmessar. The evidence of the second defendant, Harry Persad was produced to

the Court by way of a hearsay notice.

8. The claimant Mr. Imtiaz Ali testified that in June, 2002, he had agreed to lend the sum of

two hundred and eighty thousand dollars ($280,000.00) to the first defendant, Steve

Ganeesingh, and that the second and third defendants agreed to secure the loan to the first

defendant by mortgaging the subject property.

9. The claimant testified that the deed of mortgage was executed on the 17th

July, 2002, at the

offices of R.C. Chadeesingh and Company, in the presence of attorney-at-law, Mrs. Nisha

Mathura Allahar. A copy of the deed of mortgage was produced in an “Agreed Bundle”,

which was tendered into evidence by consent and marked “N.M.A.2”.

10. The claimant testified that he had advanced the agreed sum of two hundred and eighty

thousand dollars ($280,000.00), but that the sum, had not been repaid by the date of the

filing of this claim.

11. Under cross-examination, the claimant insisted that the second and third defendants were

present at the offices of R.C. Chadeesingh and Company on the day in question and that

they executed the deed. The claimant also insisted that the sum of two hundred and eighty

thousand dollars ($280,000.00) was indeed transferred to the first defendant. The claimant

volunteered that the funds had been placed in his brother’s account, and that his brother

made a banker’s order, which was given to the first defendant.

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12. Mrs. Nisha Allahar, attorney-at-law testified in support of the claim. It was her evidence

that she was well acquainted with the second and third defendants, having prepared a deed

for their execution in July, 2001. Mrs. Allahar testified further that she saw the second

and the third defendants again in July, 2002. On this occasion, according to Mrs. Allahar

they instructed her to prepare a deed of mortgage in favour of the claimant in respect of

their share of the subject property. Mrs. Allahar told the Court that she prepared the deed

of mortgage pursuant to their instructions. It was Mrs. Allahar’s evidence that on the 17th

July, 2002, the claimant together with the three defendants attended her office at R.C.

Chadeesingh and Company. The defendants there executed the deed of mortgage in her

presence. Following execution by the defendants, Mrs. Allahar and her secretary also

signed the deed.

13. Mrs. Allahar testified that, in spite of her acquaintance with the defendants, she obtained

copies of their identification cards.

14. This witness stated further that prior to executing the mortgage, she ordered a title search

of the premises. The search revealed that on two earlier occasions, the second defendant

had mortgaged the property to secure loans for the first defendant. The first deed of

mortgage was dated the 7th

June, 1983 and the second was dated the 12th

February, 1988.

15. Mrs. Allahar was cross-examined by learned attorney-at-law, Mr. Hosein. This witness

confirmed that she was acquainted with the first defendant, Steve Ganeesingh, and stated

that before 2002, he had been a long-standing client of R.C. Chadeesingh and Company.

She also confirmed that Harry Persad, the second defendant had given her written

instructions.

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16. In the course of being cross-examination, Mrs. Allahar responded to questions as to the

number of deeds which she had executed as an associate of the firm of R.C. Chadeesingh

and Company and as to her ability to recall the one in question. Mrs. Allahar admitted that

by the year 2001, she would have executed hundreds of deeds. She referred to the “usual

execution” where parties attended to execute a deed based on an appointment, they would

have attended before to give instructions.

17. When asked whether the answers which she gave were based on memory, Mrs. Allahar

replied that she remembered some of it and remembered the parties attending the office.

Mrs. Allahar also indicated that when the second and third defendants attended her office

in 2002, she remembered them from the prior transaction.

18. The second defendant, Harry Persad testified in his witness statement dated the 24th

April,

2012, that the claimant was a stranger to him. He stated that the first defendant had been

his son-in-law, who had been married to his daughter, Indrani Gopee. The second

defendant deposed that he had no relationship with the first defendant since the breakdown

of the relationship between Indrani and the first defendant. Harry Persad was cross-

examined briefly before becoming ill and being rushed to the hospital. Under cross-

examination he admitted that he had mortgaged the subject property in 1983 in order to

secure a loan for the first defendant.

19. The second defendant, in his witness statement denied that he executed any mortgage and

denied that he agreed to secure any loan for the first defendant. The first defendant denied

that the signature appearing on the deed, next to the name, Harry Persad, was his signature.

20. Mr. Harry Persad fell ill just prior to his cross-examination. Accordingly his testimony had

not been fully tested in cross-examination.

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21. The evidence of the third defendant, Dharmindra Persad was identical to that of his

father’s, Harry Persad. Dharmindra, like his father Harry, denied all knowledge of the

alleged transaction and claimed that he had no interaction with the claimant since the mid-

90’s.

22. Dharmindra was cross-examined. He told the Court that he last saw the claimant in 1999.

This witness consistently denied that he signed the mortgage and claimed to be unaware of

all other issues.

23. Mr. Glenn Parmessar provided expert evidence on behalf of the second and third

defendants. It was his evidence that the signatures which appeared on the mortgage deed

were probably not those of the second and third defendants. According to his expert

evidence, there was no finding of absolute certainty. Mr. Parmessar also told the Court

that he had unsuccessfully requested further specimen signatures from the second and third

defendants.

24. Mr. Parmessar was cross-examined by learned attorney-at-law, Mr. Asaf Hosein. Under

cross-examination, Mr. Parmessar told the Court that he would normally study ten (10)

specimen signatures. Mr. Parmessar also indicated that his examination was limited

because he did not have “a sufficient number of specimen signatures to arrive at more

conclusive findings...”

25. In answer to learned counsel, Mr. Saunders, Mr. Parmessar admitted that he had

reservations and that he had asked for more specimens. He agreed that the specimens

which had been provided were less than desirable.

26. Mr. Parmessar told the Court that at the top of the scale of certainty is a finding of

“conclusive”, then “highly probable”, then “probable”.

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Facts

27. It has been admitted and established by evidence that the second and third defendants

together with Bindrawati Maharaj were co-owners of the subject property. They are all

related. Both Bindrawati Maharaj and the third defendant are children of the second

defendant. The first defendant, Steve Ganeesingh had been married to Indrani Gopee, also

a daughter of the second defendant. The single issue of fact which arises for the Courts

determination is whether the second and third defendants executed a deed of mortgage in

July, 2002 to secure a loan for the first defendant.

28. For reasons which are set out at paragraphs 54 and 55 below, it was my view that the

claimant has proved on a balance of probabilities that the second and third defendants in

fact executed the deed.

Submissions and Law

29. Parties relied on the submissions as filed by their attorneys-at-law.

30. Learned attorney-at-law for the second and third named defendants, by their submissions

filed on the 21st March, 2014, argued that the second and third defendants had not signed

the deed of mortgage. They argued further that the claimant could not obtain an order for

possession because Bindrawati Maharaj, one of the joint owners of the property, had not

been party to the mortgage and had not been brought before the Court.

31. Learned attorney-at-law cited and relied on Fisher and Lightwood’s Law of Mortgage

(11th

Edition) as stating:

“Any person other than the mortgagor who has an independent right to remain

in occupation should also be made a defendant…”

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32. Citing Section 17 (1) of the Conveyancing and Law of Property Act3, learned attorney-at-

law for the second and third defendants argued further that the second and third defendants

were only capable of conveying by way of mortgage, the shares which they actually held in

the subject property.

33. Mr. Hosein argued further that prior to obtaining an order for foreclosure, the claimant was

required first to obtain judgment against the first defendant as primary borrower.

34. Learned attorney-at-law, Mr. Hosein argued that attorney-at-law, Mrs. Allahar had failed to

advise the defendants of their need as sureties, to obtain independent legal advice. In this

regard, the Court has observed that the second and third defendants had not pleaded as a

defence that the second and third defendants lacked independent legal advice. Moreover,

Mr. Hosein had not explored this aspect of the defence with Mrs. Allahar in the course of

cross-examination.

35. Mr. Saunders, learned attorney-at-law for the claimant, contended in his written

submission filed on the 14th

May, 2014, that his claim had been instituted pursuant to Part

69 of the Civil Proceedings Rules (CPR) 1998 and that it is not a pre-requisite of such a

claim that judgment be obtained before the claimant can proceed against sureties.

36. Learned attorney-at-law argued further that the second and third defendants as parties to

the deed of mortgage are jointly and severally liable to the claimant for monies advanced to

the first defendant.4

37. Mr. Saunders argued further that the submission that the claimant had employed an

incorrect procedure was without merit. Mr. Saunders contended that the claimant’s action

3 Conveyancing and Law of Property Act. Ch. 56:01

4 See paragraph 12 of the Written Submissions filed on behalf of the claimant on the 14

th May, 2014.

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had been instituted pursuant to Part 69.1 (a) to (g) of the CPR5 and that an order for

possession was among the available items of relief.

38. Mr. Saunders agreed however that the second and third defendants held only two-thirds

(2/3) share of the property and that the claimant would be entitled to possession of two-

thirds (2/3) of the premises. Mr. Saunders did not identify the portion of the undivided

share to which the claimant was entitled.

Law

39. Part 69.1 of the CPR6 provides:

“This Part deals with claims by a mortgagor or mortgagee for any of the

following forms of relief:

(a) payment of moneys secured by a mortgage

(b) sale of a mortgaged property

(c) foreclosure

(d) possession of a mortgaged property

(e) delivery of possession by the mortgagee”

40. Part 69.2 requires that the mortgage claim ought to be made by issuing a fixed date claim7.

41. Part 69.4 prescribes the evidence which ought to accompany a claim for possession of

mortgaged property or payment of a mortgage debt. Part 69.4 is set out below:

“On a claim for possession of the mortgaged property or for payment of the

mortgaged debt the claimant must file with the claim form evidence –

(a) exhibiting a copy of the original mortgage



7 Ibid Part 69.3

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(b) exhibiting a copy of any other document which sets out the terms of the

mortgage

(c) giving particulars of

(i) the amount of the advance

(ii) interest payable under the mortgage

(iii) the amount of any periodic payments required to be made stating

whether or not such payments include interest

(iv) the amount of repayments that have been made

(v) the amount remaining due under the mortgage

(vi) where the claim includes a claim for interest to judgment, the daily

rate at which such interest accrues

(d) where the claimant seeks possession of the mortgaged property –

(i) stating the circumstances under which the right to possession

arises

(ii) giving details of any person other than the defendant and his family

who to the claimant’s knowledge is in occupation of the mortgaged

property.”8

42. Learned counsel, Mr. Hosein relied on the learning in Fisher and Lightwood’s Law of

Mortgage, where the learned authors had this to say a paragraph 19.32

“... A mortgagee’s application for an order for possession is simply an order

for recovery of land and is not proceedings for enforcing the mortgage...

8 Civil Proceedings Rules (CPR) 1998, Part 69 (4)

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...Any person other than the mortgagor who has an independent right to

remain in occupation should also be made a defendant. It will generally be

advisable to join every person who may assert a claim...”9

43. At page 402 of their textbook, the learned authors of Fisher and Lightwood’s Law of

Mortgage, set out the law concerning the mortgagee’s remedies for recovery of the debt.

The learned authors wrote:

“The purpose of the mortgage is to secure repayment of the mortgagor’s debt

at the time agreed between the parties...”10

44. At page 433, the authors of Fisher and Lightwood’s Law of Mortgage wrote:

“Every mortgage implies a loan and every loan implies a debt for which the

borrower is personally liable. There will usually be an express covenant to

repay...”11

45. At paragraph 17.4, the learned authors wrote:

“The claim on the covenant can be maintained against any covenantor

whether principal or surety...”12

Reasoning and Decision

46. In these proceedings, a copy of a deed made on the 17th

July, 2002, was tendered into

evidence as part of the Agreed Bundle. The deed was purportedly made between the first

defendant, Steve Ganeesingh, as borrower, Harry Persad and Dharmindra Persad as owners

and the claimant as lender.

9 Fisher and Lightwood’s Law of Mortgage (11

th Edition) Paragraph 19.32

10 Ibid at paragraph 16.9



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47. The first recital of the deed identified Harry and Dharmindra Persad of the owners in fee

simple of the subject property.

48. Then, at Clause 1 of the deed, the borrower and the owner made a covenant to pay the sum

of two hundred and eighty thousand dollars ($280,000.00) to the lender by the 15th

January, 2003, and a further sixty-four thousand and five hundred dollars ($64,500.00), if

the larger sum was not paid by the stipulated date.

49. The covenant to pay was stated to have been made in pursuance of the agreement by the

claimant to lend the first defendant the sum of two hundred and eighty thousand dollars

($280,000.00).

50. Paragraph 1 of the deed contained the following clause:

“In pursuance of the said agreement and in consideration of the sum of TWO

HUNDRED AND EIGHTY THOUSAND DOLLARS ($280,000.00) advanced

and paid by the lender to the borrower...the Borrower and the Owner hereby

covenant with the Lender to pay him on the 15th

day of January, 2003 the said

sum of $280,000.00…”

51. The claimant filed a fixed date claim form seeking to enforce the covenants witnessed by

the deed and sought an order for possession of the premises, or in the alternative, recovery

of the sum of three hundred and forty-four thousand and five hundred dollars

($344,500.00).

52. The first defendant never took part in these proceedings. The trial proceeded against him

without any defence on his part. In my view, the claimant is entitled to judgment against

the first defendant for payment of the sum of three hundred and forty-four thousand and

five hundred dollars ($344,500.00) which he covenanted to repay.

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53. The second and third defendants have appeared in these proceedings and have advanced a

bald denial that they had ever signed the deed. They have admitted that they were

acquainted with the first defendant who had been married to Indrani Gopee, who was and

continues to be the daughter of the second defendant and the sister of the third defendant.

They have contended that they had not seen the first defendant since the mid-90’s, and that

they are complete strangers to the matters alleged in the claim.

54. The burden of proof is of course carried by the claimant, who is required to establish on a

balance of probabilities that the second and third defendants executed the deed.

55. Having considered the evidence earlier in this judgment, I have accepted the evidence of

attorney-at-law, Nisha Allahar, that she was well-acquainted with the defendants and that

they had signed the deed in question. Moreover, I have accepted the evidence of Ms.

Allahar as a professional and as an independent witness.

56. Evidence in support of the defence included the testimony of Glenn Parmessar, the

Forensic Examiner. Mr. Parmessar, by his own testimony, lacked sufficient handwriting

samples for the purpose of comparison. Even without the assistance of sample signatures,

Mr. Parmessar’s findings were not conclusively in favour of the second and third

defendants, finding no more than the probability that the signatures were not those of the

second and third defendants. In my view, the inconclusive findings of the document

examiner do not displace the firm and confident testimony of Mrs. Allahar. I therefore find

on a balance of probabilities that the second and third defendants attended the office of

R.C. Chadeesingh and Company on the 17th

July, 2002, and executed the deed in the

presence of Mrs. Allahar, as alleged by the claimant.

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57. The issue which remains for my determination is whether the claimant is entitled to

possession of the subject premises or payment, by the defendants, of the sum of three

hundred and forty-four thousand and five hundred dollars ($344,500.00).

58. In my view the claimant is not entitled to an order for possession. It had been admitted by

the claimant, in written submissions filed on his behalf, that the second and third

defendants were co-owners of the subject property with Bindrawati Maharaj, who was and

continues to be the daughter of the second defendant and the sister of the third defendant.

The law in this regard is clear that any person who has an independent right to remain in

occupation should be joined as a party. In my view, the failure of the claimant to join

Bindrawati Maharaj as a defendant precludes the claimant from recovering possession.

59. Moreover, it has also been admitted, by the claimant, that the second defendant and the

third defendant each hold a third undivided share in the property. It would be impossible

to make an order for possession without first ascertaining the portions held by the second

and third defendants. Accordingly, it is my view and I hold that the claimant is not entitled

to an order for possession.

60. I turn now to consider whether the claimant is entitled to recover the outstanding sum of

three hundred and forty-four thousand and five hundred dollars ($344,500.00).

61. The law is clear, that a claim on the covenant to pay may be maintained against any

covenantor, either principal or surety (See Fisher and Lightwood’s Law of Mortgage at

paragraph 17.4). In these proceedings all defendants covenanted to pay. In my view they

are jointly and severally liable to make good the sum in question.

62. Belatedly, in written submissions filed on behalf of the second and third defendants, the

defendants contended that the claimant had not proven that he ever advanced the sum of

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two hundred and eighty thousand dollars ($280,000.00) to the first defendant. This

contention is unacceptable, not only because it had not been pleaded by way of the

statement of defence, but because it is inaccurate. The first paragraph of the deed of

mortgage records the advance of the sum by the claimant, as lender, to the first defendant,

as borrower. This document stands as documentary evidence that the sum of two hundred

and eighty thousand dollars ($280,000.00) had been advanced to the first defendant.

63. By the written submissions of their learned counsel, the second and third defendants have

maintained that they were denied the opportunity to obtain independent legal advice. Once

again, this issue had not been pleaded in the statement of defence. In my view, it would be

wholly unfair to allow such an argument to be advanced for the first time at the stage of

written submissions, since the claimant would have had no opportunity to traverse these

allegations by way of pleading or evidence.

64. Accordingly, it is my view and I hold that there ought to be judgment for the claimant

against all defendants for the sum claimed.

Order

65. The defendants to pay to the claimant the sum of three hundred and forty-four thousand

and five hundred dollars ($344,500.00).

66. The defendants pay to the claimant costs prescribed in the sum at fifty eight thousand and

six hundred and seventy-five dollars ($58,675.00).

67. Stay of execution of sixty (60) days.

Dated this 12th

day of March, 2015.

M. Dean-Armorer

Judge

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