-Appeal Court affirms judgment for property owner
IN 2008, the Guyana Court of Appeal, by a majority judgment, affirmed a High Court order that returned a  New Amsterdam property to 75-year-old 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 Stanleytown, New Amsterdam. But, to her dismay, her trustee, after rebuilding the house, caused it to be transported in his name.

George, the plaintiff, was granted the relief sought, namely, that she was the owner of the property at Stanleytown, New Amsterdam.

The majority judgment  of the Court came from Justices of Appeal, Mr. Charles Ramson, S.C.  (now Attorney General) and  Ms. Yonette  Cummings-Edwards. The dissenting judge was Mr.  Ian Chang, S.C. now an acting Chief Justice.

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 (who would be her son-in-law) 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 original 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.

But unbeknownst to her, the first defendant obtained  transport of the property in his name following application to the Court  under Section 35 of the Deeds Registry Act. This caused the plaintiff to file 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, that:

(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 Chang dissenting, the Guyana Court of Appeal held that:
(1) In the light 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 (75yrs), it would not have been expedient,  in the interest of  justice,  to further  adjourn the trial under the same provision; and

(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 in 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 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 7 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 Ramson had, among other things, said: “This appeal raises a commonplace concern with respect to the interrelationship 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.’” 

Both Justices Ramson  and Cummings-Edwards referred to 46 cases in support of their majority judgment, which affirmed the order of the learned trial judge, subject to rights of the mortgagee acquired prior to the commencement of the action.

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