“Let the hand receiving it be ever so chaste, yet if it comes through a corrupt polluted channel, the obligation of restitution will follow it.”- Lord Commissioner Wilmot in the case of Bridgeman v Green (1757) Wilm 58
Under what circumstance can a Deed be set aside in Trinidad and Tobago?
Black’s Law Dictionary defines a Deed as “A written instrument by which land is conveyed” (put simply). Common examples of deeds are Deed of Conveyance, Deed of Gift and Deed of Assent.
Land is held in Trinidad and Tobago under two (2) systems:
Most land in Trinidad & Tobago is still held under the old law system which is based on the English Common Law as modified from time to time by statute, including the Conveyancing and Law of Property Act, Chapter 56:01.
Where land is transferred under the Registered System, the legal instrument is referred to as a “Memorandum of Transfer”.
Now let’s get to the crux of the matter: setting aside a Deed.
A deed can be set aside (or rescinded) under certain legal circumstances such as fraud, undue influence and lack of proper execution or consideration. A court may also set aside a deed if it was obtained through duress or if the transaction was unfair or unreasonable.
Other situations whereby a Deed can be set aside are as follows:
For the purpose of this article, I will expound on just a few of the circumstances in which a Deed can be set aside using case authority and then conclude by stating the procedure in setting aside a Deed.
Fraud
In fraudulent execution of a deed, the case of Waimiha Sawmilling Co. v Waione Timber Co (New Zealand) [1925]UKPC 55 (June 30,1925) is instructive wherein Lord Buckmaster expounded on what constitutes fraud in the context of a case concerning title to land: “If the designed object of a transfer be to cheat a man of a known existing right, that is fraudulent, and so also fraud may be established by a deliberate and dishonest trick causing an interest not to be registered and fraudulently keeping the register clear. It is not, however, necessary or wise to give abstract illustrations of what may constitute fraud in hypothetical conditions, for each case must depend upon its own circumstances. The act must be dishonest, and dishonesty must not be assumed solely by reason of [for example] knowledge of an unregistered interest.”
Fraud must be specifically pleaded and proved: CV2017-04031 Dennis Charles v Antoinette Alicia Charles Honore and Ors. The elements of fraud can be found in Derry v Peek (1889) 14 App Cas 337: “…Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, not hearing whether it be true or false….”
Sections 37 and 45 of the RPA set out the conclusiveness of the register in the system of registration under the RPA.
Section 141 of the RPA provides an exception to the conclusiveness of title in cases of fraud where the indefeasibility of the title can be challenged:
“Except in the case of fraud, no person contracting or dealing with or taking or proposing to take a transfer from the proprietor of any estate or interest shall be required or in any manner concerned to enquire or ascertain the circumstances under, or the consideration for which, such proprietor or any previous proprietor of the estate or interest in question is or was registered, or to see to the application of the purchase money or of any part thereof, or shall be affected by notice, direct or constructive, of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding, and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud.”
Section 143 of the RPA limits the persons who can challenge the title of a registered proprietor: “No action of ejectment or other action for the recovery of any land shall lie or be sustained against the person registered as proprietor thereof under the provisions of this Act, except in any of the following cases: … (b) In the case of a person deprived of any land by fraud as against the person registered as proprietor of such land through fraud; or as against a person deriving, otherwise than a bona-fide for value, from or through a person so registered through fraud.”
(See case of Claim No. CV2017-00789, Christopher Glenalbin Roberts v Shurland Clarke and Marion Douglin).
No Independent Legal Advice & Non Est Factum
A deed can also be set aside if the party who conveyed the property had no independent legal advice and/or did not understand the nature of the document (conveying the property) which he or she signed (non est factum).
In Inche Noriah v Shaik Allie Bin Omar [1929] A.C 127 Lord Halshin said at pg135: “To satisfy the rule in cases where independent legal advice is railed upon, … it must be given with a knowledge of all relevant circumstances and must be such as a competent and honest adviser would give if acting solely in the interests of the donor.”
In the case of Claim No. CV2017-00789, Christopher Glenalbin Roberts v Shurland Clarke and Marion Douglin (land possession/adverse possession case), the Honourable Madame Justice Quinlan-Williams alluded to the doctrine of Non Est Factum, stating: “The defence of non est factum is available to persons of full age and understanding who have been misled into executing a deed that is essentially different from that which was intended. The Court of Appeal Case of Sooraj Teeluck v Dhanesar Teeluck Civ App No. P214 of 2013 AC 1004 at 1034 after careful analysis of the case Saunders v Anglia Building Society10 stated that it was only in exceptional circumstances will a person of full capacity be able to satisfy the key elements of non est factum which include: i. That he or she suffers from some sort of disability; ii. That there was a radical or fundamental difference between what the party signed and what the party thought he or she was signing; iii. That in signing the document he or she was not careless in the sense of failing to take adequate precautions against falling into error, or failing to take adequate steps to inform himself or herself about the nature and contents of the document in question.”
Transaction unfair or unreasonable
A Deed can also be set aside if the transaction was unfair and unreasonable. A good example of such is the case of Claim No.CV2007-00058 Hamza Hassanali v Haffiza Mohammed and Sayeed Mohammed (proprietary estoppel case). In that case the Claimant sought, inter alia, that a particular Deed of Conveyance be set aside, claimed equity in a family property; he averred that his father, who was the owner of the property, made representations to him that should he (the Claimant) fund the demolition and reconstruction of the family home, he (the father) would convey a life interest in the home to himself with remainder to the Claimant. The Claimant was successful in his suit and the Court declared the Claimant’s entitlement to a thirty per cent (30%) share or interest in said property and that the Defendants convey to the Claimant the 30% share or interest in the said property within sixty (60) days hereof. “In default, the Registrar of the Supreme Court is hereby directed to execute the necessary conveyance”.
Application to have a Deed Set Aside
The procedure to have a Deed set aside is by making an Application before the High Court by way of Fixed Date Claim Form and Statement of Case. It could also be done by way of Notice of Application, Draft Order and Affidavit. Whichever method is use, the Claimant, through his or her Attorney at Law, must set out the circumstances (pleadings) which merits the Deed be set aside.
I hope this article helps, see you next time!
