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Jul 05, 2014 News
The Caribbean Court of Justice (CCJ) has ordered two Guyanese to vacate a property and pay costs to a purchaser who had bought it a decade ago.
The case was taken to the regional court by Ganga Charran Singh and filed against Ram Singh and Rajcoomarie Singh– the Respondents. On Wednesday, the CCJ delivered its judgement.
According to the court documents, the Respondents owned a property which was the subject of a mortgage in favour of Guyana National Cooperative Bank Trust Corporation. However, they defaulted on the mortgage payments and the Bank sought and obtained an order authorising the property to be sold by a judicial sale.
At the sale by auction, the Appellant purchased the property for $11,020,000 and immediately paid the required 25 per cent deposit. The articles of the auction sale required a purchaser to pay a deposit of 25 per cent of the purchase money and pay the balance by three equal instalments, with interest, at the expiration of two, four and six months.
However, the rules governing the transaction provides that where a purchaser defaults in payment of the instalments, the deposit shall be forfeited unless on application made within seven days of the default, that the Court extends the time for payment.
In November 2004, just before expiry of two months from the date of his paying the deposit, the Appellant attempted to pay the whole 75 per cent balance of the purchase price with interest. He gave evidence, however, that he was told by a member of staff in the Registry of the Supreme Court that no payment could be accepted due to legal proceedings undermining the sale. He had to wait until those proceedings were resolved.
In 2008, the proceedings instituted by the respondents were dismissed.
The Purchaser paid the 75 per cent outstanding balance and interest that he had offered to pay in November 2004. A judicial sale transport was passed in his favour.
However, the Respondents initiated another action to challenge the validity of the Purchaser’s transport which was discontinued. After this, the Purchaser brought proceedings against the Mortgagers seeking possession of the property, damages for trespass and an injunction restraining the Mortgagers from remaining, re-entering and/or occupying his property.
The Mortgagers’ defence was that the transport was void because of the Purchaser’s non-compliance with the Articles of Sale and the requirements of the rules. The trial judge ordered the Mortgagers to deliver up possession to the Purchaser within six weeks, but rejected the Purchaser’s claim for damages for trespass.
He found that the November 2004 conduct of the Registry staff in refusing to accept from the purchaser the proffered 75 per cent outstanding balance of the purchase price, was no more than an irregularity and that the Purchaser had duly become owner of the property in April 2008.
Upon the Mortgagers’ appeal, however, the Court of Appeal vacated the orders of the trial judge. It held that the Purchaser’s evidence about what was said by the Registry staff member upon his attempt to pay the outstanding balance was inadmissible, hearsay evidence. The court further considered that even if the Purchaser’s evidence could be admitted he still had a duty to apply to the court to make the payment due out of time.
It found that, because the Purchaser’s title had been obtained in breach of the Rules of Court, he did not obtain an indefeasible title and ordered that the Purchaser’s 25% deposit be forfeited and that he pay the costs of each of the Mortgagers. It further indicated that the Purchaser was entitled to recover the outstanding balance paid to the Registrar (and which had already been paid to the Bank) though the Registrar was not involved in the proceedings.
Upon the Purchaser’s appeal to the CCJ, the Court first considered whether the Purchaser’s evidence about what he was told at the Registry was inadmissible hearsay. It concluded that the evidence was not inadmissible hearsay evidence as he gave original direct admissible evidence of what he actually did and then what he attempted to do, but was unable to.
CCJ concluded that the Court of Appeal erred in making a declaration that the deposit was forfeited in the circumstances where the Mortgagers did not file a counterclaim.
The Court allowed the Purchaser’s appeal, vacating the orders of the Court of Appeal and upholding the orders of Chief Justice Ian Chang CJ (Ag). The Purchaser was declared to be the owner of the property and entitled to possession of the property. It ordered the Mortgagers to deliver up possession of the property and to pay the costs of the Purchaser to be taxed, if not agreed.
Sir Fenton Ramsahoye, SC, Rajendra Poonai, R. Satram, C. V. Satram and Manoj Narayan appeared for the Appellant.
Edward A. Luckhoo, SC, Robin Stoby, SC, Kim Kyte-John, Sharon F Small and Ms. Faye Barker appeared for the Respondents.
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