CCJ urges Guyana Government to consider reform of Deed’s Registry Act

Feb 26, 2021 News

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Ruling in property dispute…

Kaieteur News – In a judgment delivered yesterday, the Caribbean Court of Justice (CCJ) allowed the appeal of Merlene Todd, a Guyanese embroiled in a battle over a city property, which was sold to her on the basis of a fake power of attorney. In confirming Todd’s ownership to the land, the CCJ urged the Government of Guyana to urgently consider reform of the Deed’s Registry Act.
According to a summary of its judgment, the CCJ outlined that Allan Price (now deceased) owned the West Half of Lot 153 Queenstown, Georgetown.
In February 2004, Ann Jennifer Jeboo, claiming to act on behalf of Price, used a Power of Attorney to sell the lands to MerleneTodd, who obtained a transport. It was subsequently discovered that the Power of Attorney was fake and Jeboo was convicted of fraud.
Price sued both Jeboo and Todd in the High Court seeking to set aside the sale and have the transport declared void. According to the ruling by Section 22 (1) of the Deeds Registry Act, every transport vests in the transferee full and absolute title, but the proviso to the section contains an exception of a transport obtained by fraud in the hands of all parties or privies to the fraud.
Price’s claim against Jeboo was a straight case of fraud. His claim against Todd was not fraud or privity to fraud. Rather, he claimed that by her negligence, she ‘contributed’ to Jeboo’s fraud and the loss of his property. Price died before trial and the claim was continued by his widow, Desiree Price.
Following a full trial in the High Court, Chang CJ delivered a written judgment in which he found that no fraud had been pleaded against Todd, that it was impermissible at the trial to advance a case of fraud against her, and that in any event, there was no evidence that she was privy to the fraud. Accordingly, he refused to declare the transport to Todd void and to set it aside. Desiree Price appealed this decision and asked the Court of Appeal to find that Merlene Todd was a party to the fraud.
Merlene Todd challenged the appeal by arguing that allegations of fraud had not formed part of the pleadings. On the 16 March 2020, the Court of Appeal allowed the appeal and found inter alia that Todd’s gross negligence made her a party to the fraud. The court declared that the transport was null and void. Todd appealed the Court of Appeal’s decision.
The CCJ allowed the appeal and set aside the orders of the Court of Appeal. The CCJ’s judgment was delivered by the Justices Winston Anderson and Justice Denys Barrow at the Trinidad based Court. Justice Barrow found that the allegations of fraud had not been pleaded and Todd was not given an opportunity to respond to these allegations or to defend her against these allegations.
In the judgment, the judges revealed that allegations of fraud must be properly and adequately pleaded. “The allegations of gross negligence were also not pleaded and the Court of Appeal erred in equating gross negligence to fraud.”
Justice Anderson expressed that an appellate court ought to be especially slow in overturning a trial judge’s determination of the scope of the pleading, especially where it appears that the scope of those pleadings, as found by the judge, was accepted by the parties. In these circumstances, he noted that the Court of Appeal was wrong to find that Todd was a party to the fraud.
Justices Barrow and Anderson found that the Court of Appeal erred in drawing the inferences and finding the facts they did and, more fundamentally, in the way they conducted the fact-finding exercise. Anderson expressed that an appellate court should not interfere with the trial judge’s conclusions on primary facts unless it is satisfied that the trial judge was “plainly wrong” and should not interfere unless the inferences drawn by the trial judge were “plainly unreasonable”.
Finding that the original landowner had been deprived of his land through no real fault of his own, then Anderson expressed that this showcased the need for legislative reform.
Separate judgments were delivered by Justice Jacob Wit and Justice Peter Jamadar who both reasoned that the approaches to the law as well as the outcome of this appeal did not seem satisfactory or just. Judges suggested that there may be other legal approaches that could have resulted in different outcomes and explored those possibilities, and that the legislature should review and amend the Deeds Registry Act to refine or improve the law to meet the needs of current land law realities in Guyana.
Jamadar also suggested that the Deeds Registry Act needs to be reviewed and an assessment made whether it passes constitutional muster in Guyana, and if not, what modifications are required to do so, explaining why this should be done. Todd’s appeal was therefore allowed, the orders of the Court of Appeal set aside and the Orders of the Chief Justice, restored, including the order as to costs.

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