Trustee moves to take over NA property

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Appellate Court affirms judgment for property-owner

IN 2008, the Guyana Court of Appeal by a majority judgment affirmed a High Court order that had returned a New Amsterdam property to a 75-year-old woman, Ena George….who claimed she was being fleeced by her trustee.

According to George, before migrating to the United States, she gave her trustee (Collymore) money to renovate and rebuild a house at 35 Stanleytown, New Amsterdam. But, to her dismay, her trustees after rebuilding the house, caused it to be transported in his name.

The plaintiff George was granted the relief sought, i.e., she was the owner of the property at 36 Stanleytown, New Amsterdam.

The majority judgment of the court came from Justices of Appeal Mr Charles Ramson, S.C. (former attorney general) and Ms Yonette Cummings-Edwards.
The dissenting judge was Mr Ian Chang, S.C., former acting chief justice (CJ).

The facts disclosed that in 1980 the plaintiff and her daughter, the second defendant, who was married to the first defendant, moved into a rented accommodation (the property) in New Amsterdam.

In 1983 the plaintiff gave US$ 1000 to the first defendant to make a down payment on the property; she then moved to the United States and sent the balance to pay off for the property.

Owing to its condition, the building was demolished and a new wooden house was erected in its place. Renovations were also carried out with money sent by the plaintiff and handed over to the defendants. Unbeknownst to the plaintiff, the first defendant obtained transport for the property in his name following application to the court under section 35 of the Deeds Registry Act.

The plaintiff filed an action, seeking, inter alia, a declaration that she was the owner of the property.

At trial, the plaintiff gave evidence. The defendants were resident overseas and chose not to attend court, although their attorney gave some evidence. The trial judge granted the plaintiff the relief sought and the first defendant appealed on the following grounds, inter alia, (1) the trial judge had failed to exercise his discretion to grant an adjournment to the first defendant, for the defendant to return to Guyana and testify; (2) the law of Guyana did not recognise the equitable concept of a trust, but, if it did, the judge had been in error for concluding that a resulting trust had arisen.

With former CJ Chang dissenting, the Guyana Court of Appeal held (1) In view of the fact that both parties resided in the USA and the plaintiff had returned to Guyana to prosecute her case and remained there over the period of postponements granted by the learned trial judge under Ord 33, r 4, to allow for the first defendant to be present to testify in his defence, coupled with the age of the plaintiff (75years), it would not have been expedient in the interest of justice to further adjourn the trial under the same provision.

(2) In the instant case, the trial judge had found as a fact that the plaintiff had given the first defendant money over a period of time to purchase the property at issue for herself, but the latter, by stealth, engineered the passing of the conveyance in his own name under section 35 of the Deeds Registry Act, Chapter 5: 01.

The first defendant had therefore been in a fiduciary position vis-a-vis the plaintiff and the uncontradicted testimony had been to the effect that the property had not only been purchased but had been also substantially rehabilitated after its conveyance over a period of time with money entrusted to the first defendant upon a written request by the first defendant to the plaintiff.

To this, the first defendant had irrefragably been a trustee for the plaintiff and whether an express, constructive or a resulting trust, it would be inequitable not to divest him of that legal title. By virtue of Section seven of the Court of Appeal Act, the court was entitled to confirm, vary, amend or make any such order as the court might have made.
In his judgment, Justice of Appeal Ramson had among other things said, “This appeal raises a commonplace concern with respect to the inter-relationship between parents and their scions in whose names immovable property is conveyed by purchases, or transfer simpliciter.

The agony of any, if not all disputes, culminates in litigation with an outpouring of emotion which further divides the parties, whatever the ruling of the courts.
“Along the journey of life, relationships constructed on the basis of trust that ought to be milestones are fractured by greed, covetousness, diabolical selfishness and not infrequently, inexplicable, intransigence.

“Paradoxically, it is the law of trusts to which the courts must turn in a bid to rescue the aggrieved party if the picayune beneficiary was to be divested of his/her benefactor’s ci-devant property Tyndall v. Tyndall (Civil Appeal No. 32/94) are two such cases and though dissimilar in factual contents, raised not dissimilar jurisprudential polemics.
“The Ancient County Berbice was once home to a quaint rural community in the early 1980s, and two of the litigants in this appeal formed part of that environment.

“The second-named defendant in the action out of which the instant appeal arose is the only daughter of the respondent, whose culture prompted her to give as she put it,’ the first preference to look after my business.’

Justice of Appeal Ramson and Justice Cummings-Edwards had referred to 46 cases in support of their majority judgment.

The majority judgment affirmed the order of the learned trial judge, subject to rights of the mortgagee acquired prior to the commencement of the action.

Justice of Appeal Chang who had delivered a minority judgment had said, “I found myself in the regrettable position of disagreement with that majority decision.”