REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Civil Appeal No. P 214 of 2013 Claim No. CV 2006-00982 BETWEEN SOORAJ TEELUCK Appellant AND

DHANESAR TEELUCK Respondent

PANEL: I. ARCHIE, CJ P. MOOSAI, JA J. JONES, JA

DATE DELIVERED: 25 October, 2019

APPEARANCES: Mr. S. Marcus SC instructed by Ms. D. James for the Appellant. Mr. S. O’Neil for the Respondent.

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I have read the judgment of Moosai JA and agree with it.

I. Archie Chief Justice

I too, agree.

J. Jones Justice of Appeal

JUDGMENT

Delivered by P. Moosai JA

I. Introduction

[1] The issue raised on this appeal is “non est factum”. The appellant/defendant, appeals against the decision of the trial judge, Mr Justice Boodoosingh, who held that his brother, the respondent/claimant, as a result of his mental disability, had successfully established the plea of non est factum. Consequently, the judge ordered the impugned deed made between the appellant and the respondent as vendors of the one part and the respondent and their mother, Sankalia Teeluck, as purchasers of the other part be set aside and directed the Registrar General to expunge this deed from the records.

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[2] The main issue arising in this appeal, one of importance but not altogether free from difficulty, is whether the judge was correct in holding that the plea of non est factum was available to the respondent. The resolution thereof would have required the judge to make both findings of fact and law. It is common ground that no innocent third party rights are involved. [3] In my judgment, and mindful of the very real constraints facing an appellate court in its review of findings of fact, there was a proper and sufficient basis for the judge to arrive at his conclusions of fact. Thus, the judge could reasonably have come to the conclusions which he did and cannot be said to have been plainly wrong. Moreover, the judge’s determination of the case was not vitiated by any error of law. In particular, the judge correctly applied the law to the facts in holding that all the constituent elements of the plea of non est factum had been established by the respondent. Consequently the impugned deed was void. [4] In the circumstances the appeal is dismissed.

II. Relevant background facts.

[5] Dhanesar Teeluck (Dhanesar), Sooraj Teeluck (Sooraj) and their six sisters are the children of their father, Teeluck Tamesar (Teeluck), and their mother, Sankalia Teeluck (Sankalia). Both parents are now deceased, Sankalia having died some time after Teeluck on 15 December 2005. Dhanesar was born on 22 October 1946 and was 66 years old at the time of trial. Sooraj is the youngest child of the family. [6] By deed registered as No. 21307 of 1985, their father, Teeluck, conveyed to Dhanesar and Sooraj as joint tenants three parcels of land in Chaguanas comprising 19 acres in total (the subject lands). [7] By the impugned deed dated 21 October 1993 and registered as No. 15789 of 1993 (the 1993 deed), Dhanesar and Sooraj as vendors purported to convey the subject lands to Sooraj and their mother, Sankalia, as joint tenants for the purchase price of $80,000.

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[8] Some twelve years later on 15 December 2005, Sankalia died. Her death left Sooraj, the surviving joint tenant, as the sole owner of the subject lands. [9] Relying on the doctrine of non est factum Dhanesar, on 24 April 2006, commenced these proceedings against Sooraj seeking a declaration that the 1993 deed was null, void and of no effect and an order setting it aside. The essential grounds upon which Dhanesar relied in his pleadings are as follows: i. His signature was procured by Sooraj at the time when he was mentally ill, he having been undergoing treatment and under the care of a psychiatrist since 1978. ii. He did not know or understand that he was conveying his share of the subject lands to the purchasers, namely to Sooraj and Sankalia. iii. The alleged of $80,000 or any part thereof was never paid to him. [10] By way of defence, Sooraj denied that Dhanesar executed the 1993 deed when he was mentally ill. It was further contended that, at the time of execution thereof, Dhanesar knew and understood that he was conveying his interest in the subject lands to Sooraj and their mother, Sankalia. In support of this latter contention, Sooraj averred that Dhanesar read the 1993 deed and that the attorney at law who prepared and took its execution also enquired of Dhanesar whether he understood the nature of the transaction and Dhanesar answered in the affirmative. [11] Thus, the issue arising for determination before the judge on the plea of non est factum can be stated concisely, namely whether or not Dhanesar by reason of his mental disability was capable of sufficiently understanding the substance of the particular transaction entered into.1

1Saunders v Anglia Building Society [1971] AC 1004 at 1034 (Lord Pearson).

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III. The judge’s conclusions

[12] The conclusion which the judge arrived at on this plea is set out at paragraph 20 of his judgment and provides a brief synopsis of his crucial findings of both fact and law:

20. I am of the view that there was sufficient from the claimant himself and from the evidence of the reports of Dr Maharajh that the claimant suffered a disability of a mental nature that would have impaired his ability to understand the contents of a document such as a Deed without the benefit of careful and independent advice. I am also of the view that the claimant did not properly appreciate what he was signing and given his mental position he ought to have benefited from proper advice before he did as he did. I also accept that the document he thought he was signing was fundamentally different from what he thought he was signing [sic]. I also conclude that he was not careless about it but he must have been misled by his brother and family members and the attorney had not properly and fully advised him.2

IV. The appellant’s submissions

[13] The appellant contends that the judge’s decision was against the weight of the evidence, in particular the judge should have preferred the evidence of Sooraj and Ms Ram. [14] The medical evidence of Dr Maharajh was inadmissible. Even if admissible, little or no weight could have been attached to the documents of Dr Maharajh since he was not cross-examined. Further, no evidence has been led as to Dhanesar’s state of mental health at the time of the execution of this deed in October 1993. Additionally, the judge did not assess Dr Maharajh’s evidence fully as he did not attach sufficient weight to the matters that the doctor found favourable to the appellant’s case: in particular what is contained in Dr Maharajh’s first report of 11 February 2008 that, with proper treatment, Dhanesar is capable of managing and administering his property and affairs.

2 CV 2006-00982 Teeluck v Teeluck.

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[15] Even if the evidence of the respondent is accepted, the plea of non est factum could not and did not arise having regard to the authorities and what is required to establish this plea. In particular Dhanesar: i. When he left home he knew where he was going: to the office of an attorney at law. ii. He knew he was going there to sign a paper, a deed. iii. When he was going there, he knew what a deed was. However, in further cross-examination, he claimed not to have known what a deed was. iv. When Sooraj told him that he was going to the attorney’s office to sign a paper, he did not ask what kind of paper. v. After much reluctance, he admitted that he was fearful that his wife would have gotten the land. vi. He never asked what the paper which he was requested to sign was about or for an explanation of it. vii. He did not read the deed, nor did he testify that he was unable to read. viii. He thought that the transaction was to preserve his interest in the land. ix. In 1993 he had problems with his wife. He had to give her money. [16] Dhanesar’s motive, namely to protect the land from his estranged wife, indicates that he was aware of the nature of the document he was executing, a document conveying away his property, and that the plea of non est factum would not avail him in those circumstances. The deed as executed achieved this purpose. [17] Dhanesar did nothing during the remaining lifetime of his mother (who died in 2005) to set aside the 1993 deed, and that no explanation was forthcoming from him as to his failure to take any action until some 13 years later.

V. The respondent’s submissions

[18] The respondent contends that the constituent elements of non est factum have been established by him. There was significant evidence before the court that the he has and

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continues to suffer from an illness, which leaves him prone to being easily influenced and manipulated due to a fragile ego structure. Further, the court did not err in making a finding of fact that he was not careless in that he did not properly appreciate what he was signing and, given his mental condition, he ought to have benefited from proper advice before doing what he did.

VI. Issues on appeal

[19] The three essential issues arising on appeal are: i. The admissibility of the reports of Dr Maharajh. ii. If admissible, what weight, if any, the judge ought to have been attached to them. iii. Whether or not the plea of non est factum has been established by the respondent.

VII. The Medical Evidence

[20] The appellant objects to the admissibility of the medical evidence of Dr Maharajh essentially on the basis: i. of its hearsay nature; ii. that it does not purport to be a witness statement within the Civil Proceedings Rules (CPR)3 Part 29; and iii. that it could not be utilised as expert evidence as it did not meet the criteria prescribed under CPR Part 33. [21] The medical evidence is comprised of three medical reports of Dr Maharajh dated: i. 11 February 2008;

3 Consolidated Civil Proceedings Rules 2016.

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ii. 14 July 2008; and iii. 9 January 2010. [22] In addressing the issues of admissibility and weight4 with respect to these medical reports, there is no gainsaying that the basic principle under which our courts operate is that evidence is given orally with cross-examination of witnesses, and the admission of hearsay evidence constitutes the exception to the rule. The Evidence Act Chap 7:02 governs the admissibility of hearsay evidence in civil proceedings.5 Section 37 (1) provides for the admissibility of out-of-court statements as evidence of the facts stated:

37. (1) In any civil proceedings a statement made, whether orally or in a document or otherwise, by any person, whether called as a witness in those proceedings or not, shall, subject to this section and to Rules of Court, be admissible as evidence of any fact stated therein of which direct evidence by him would be admissible. Section 37 contemplates compliance as well with rules of court.

[23] It is clear that, subject to any evidential objections that may have arisen, the direct oral evidence of Dr Maharajh with respect to Dhanesar’s medical condition as contained in these medical reports would have been admissible in these proceedings. The material rules of court are Part 30 of the CPR which deals with the admissibility of hearsay evidence. Part 30.2 (1) provides that any party who wishes to give hearsay evidence which is admissible only by virtue of section 37, 39 or 40 of the Evidence Act must serve on every other party a hearsay notice. It is common ground that on 29 November 2012, Dhanesar filed the requisite hearsay notice prescribed by Part 30.3 (4)6 on the ground outlined in

4 See analysis of Jones J (as she then was) in CV 2005-00371 Saunders v Des Vignes. 5 See in particular section 36: “(1) In any civil proceedings a statement other than one made by a person while giving oral evidence in those proceedings is admissible as evidence of any fact stated therein to the extent that it is so admissible by virtue of any provision of this Part or by virtue of any other statutory provision or by agreement of the parties, but not otherwise. (2) In this section “statutory provision” means any provision contained in, or in an instrument made under, this or any other Act including any Act passed after the commencement of the Evidence (Amendment) Act 1973 (that is, 15th November 1973).” 6 “If the party giving the notice – (a) does not intend to call any person of whom details are contained in the notice; and (b) claims that any of the reasons set out in rule 30.6 applies, the notice must say so and state the reason(s) relied on.

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Part 30.6, namely that Dr Maharajh died before the trial began.7 In those circumstances Part 30.7 precluded Sooraj from filing a counter-notice.8 The rationale for Part 30.7 is undoubtedly because Section 43(3) of the Evidence Act confers no residual discretion on a court to exclude such evidence where the requirements of the rules affecting its admissibility have been complied with: see Rasool v West Midlands Passenger Transport Executive.9 [24] In these circumstances the judge rightly admitted the medical evidence of Dr Maharajh. Consequently it would be a matter of weight to be accorded to the medical evidence: Section 41(3).10 [25] The appellant contends that notwithstanding the admissibility of the medical evidence of Dr Maharajh, little or no weight ought to have been attached to it by the trial judge as it did not purport to be a witness statement within CPR Part 29, and more significantly, did not meet the stipulations for deployment as expert evidence under Part 33 of the CPR. As mentioned previously, it is common ground that Dr Maharajh died during the course of the proceedings in the High Court. It would be for very obvious reasons therefore that the relevant aspects of his medical reports could not have made its way into a witness statement as deposed by him. [26] Concerning the challenge to the status of the medical evidence and its classification as expert evidence, this court accepts that if it were indeed to be deployed in such a , strictly speaking, permission ought to have been sought and granted under the CPR to treat Dr Maharajh as an expert.11 No application was made by Dhanesar under Part 33 and this failure formed the basis of an additional challenge by Sooraj in the proceedings

7 The several reasons for not calling a person as a witness on the ground of unavailability in Part 30.6 are taken from section 43 (2) (b) of the Evidence Act. 8 Consistent with section 43 (2) (b) of the Evidence Act. 9 [1974] 3 All ER 638. 10“(3) In estimating the weight, if any, to be attached to a statement admissible in evidence by virtue of section 37, 38, 39 or 40 regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement and, in particular— (a) in the case of a statement falling within section 37(1) or 38(1) or (2), to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent the facts...” 11 It may be noted that Part 33 authorises the judge to raise the issue of the necessity for expert evidence independently of the parties: see Kelsick v Kuruvilla CA P277 of 2012 (Jamadar JA) in particular [39].

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below. Unfortunately, the record of appeal is bereft of any express indication as to the manner in which this challenge was determined. What is available however, is the aforementioned hearsay notice which sought to introduce this medical evidence into the proceedings. It is implicit in his assessment and subsequent conclusions that the judge must have been cognisant of the fact that the said evidence contained the opinions of a medical practitioner, a psychiatrist at that, and if accepted, could only have been accepted as that of an expert. [27] CPR rule 33.5 (1) requires the court’s permission for the calling of an expert witness or the filing of an expert report, and rule 33.5 (3) provides that the court may grant permission on or without an application. In admitting the medical reports of Dr Maharajh pursuant to the hearsay notice, the judge effectively granted permission for the adducing of these reports as expert evidence without application, a course that was clearly open to him under the Rules. The requirement that permission be sought under Part 33 before expert evidence is admitted is one which is geared toward ensuring that only expert evidence that is reasonably required to resolve the proceedings justly is placed before the court: CPR 33.4. There is no question that the appellant was aware of the medical evidence. It was placed before the court since 2006 and he would therefore have had more than sufficient notice of the claimant’s intention to utilise the opinions of Dr Maharajh in support of his claim. [28] The trial judge was also very careful to treat with the evidence in a manner which was neither unfair nor prejudicial to the appellant. Of all that was included in the reports of Dr Maharajh, substantial weight was attached only to the diagnosis of the doctor specific to Dhanesar’s mental health,12 largely as a result of the corroborating evidence of Dhanesar himself that he had been seeing the doctor for over twenty years.13 There was no real dispute of this fact, save for the statement made by Sooraj that he did not know that Dhanesar suffered from any mental illness. Dhanesar’s corroborating evidence appears to explain why the judge chose, rightly in my view, to attach little or no weight

12 Teeluck v Teeluck (n 2) [7]. 13 See [34] below.

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to the other aspects of Dr Maharajh’s evidence and opinions which may have proved favourable to either the claimant or the defence.14 [29] I am of the view therefore that the judge, in the specific circumstances of this case, was entitled to treat with the medical evidence in the manner that he did and there was no resultant prejudice or unfairness to the appellant in doing so.

VIII. The judge’s findings of fact.

[30] In so far as the appellant argues that the judge’s decision is against the weight of the evidence and that, in particular, the judge should have preferred the appellant’s evidence, this is a challenge against the judge’s findings of fact. The principles governing appellate review of findings of fact by a judge at first instance are well-established. This court must be satisfied that the judge was plainly wrong in the sense that the judge’s decision is one which no reasonable judge could have reached, or his or her decision is one which cannot reasonably be explained or justified: Beacon Insurance Co Ltd v Maharaj Bookstore Ltd;15 Henderson v Foxworth Investments Ltd.16 This court in Sookraj v Sookraj17 referred to the recent Privy Council authority of Bahamasair Holdings Ltd v Messier Dowty Inc18 where Lord Kerr summarised the basic principles in this area as follows: i. Any appeal court must be extremely cautious about upsetting a conclusion of primary fact. Very careful consideration must be given to the weight to be attached to the judge’s findings and position, and in particular the extent to which, he or she had, as the trial judge, an advantage over any appellate court. The greater that advantage, the more reluctant the appellate court should be to interfere.

14 Teeluck v Teeluck (n 2) [7] & [8]. 15 [2014] 84 WIR 248. 16 [2014] 1 WLR 2600. 17 CA 126 of 2011. 18 [2018] UKPC 25.

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ii. Duplication of the efforts of the trial judge in the appellate court is likely to contribute only negligibly to the accuracy of fact determination. iii. The principles of restraint do not mean that the appellate court is never justified, indeed required, to intervene. The principles rest on the assumption that the judge has taken proper advantage of having heard and seen the witnesses, and has in that connection tested their evidence by reference to a correct understanding of the issues against the background of the material available and the inherent probabilities. Where one or more of these features is not present, then the argument in favour of restraint is reduced. [31] Similarly the United Kingdom Supreme Court in Henderson19 summarised the limited role of an appellate court in reviewing findings of fact of a lower court, Lord Reed stating at para 67: …in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified. [32] It is clear that the judge, in considering the plea of non est factum, evaluated the oral and documentary evidence placed before him. This would have been comprised of the testimony of Dhanesar and the medical reports of Dr. Maharajh on the claimant’s behalf; and the testimony of Sooraj and Ms Ram on behalf of the defence. [33] At the very beginning of his judgment, at paragraphs 2, 3 and 4, the judge concisely highlighted the gravamen of each party’s assertion in his pleadings. The issue joined was as to Dhanesar’s mental capacity to sufficiently understand this 1993 deed which he signed. He correctly identified the three elements required to establish a plea of non est

19 (n 16).

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factum as set out in the case of Lloyds Bank PLC v Waterhouse,20 noting that there must be clear and positive evidence to that effect.21 [34] Thereafter the judge proceeded to assess the evidence led at trial. It could not have escaped the attention of all parties that the weight to be attached to the psychiatric evidence of Dr Maharajh as contained in his medical reports was critical to the outcome of this case. The judge properly recognised that, in the absence of cross-examination of Dr Maharajh, he was obliged to examine the doctor’s evidence with a measure of care. As a result he chose in his assessment of the evidence, as he was entitled, to attach greater weight to matters which lay within Dr Maharajh’s expertise, namely his psychiatric opinions and his contemporaneous notes with respect to Dhanesar’s core mental condition and which, in my view, was incontrovertible: ...He had a schizophrenic illness characterised by hallucinations and delusions. His report said his mental illness was a remitting and relapsing one with periods of clarity. In these periods he is prone to being easily influenced and manipulated due to a fragile ego structure.22 He conversely attached little or no weight to the doctor’s opinions and evidence on certain contentious matters of fact likewise contained in the reports (some of which might have favoured the claimants, some the defence), stating: …Certain opinions were given about the claimant’s ability to enter into a land transaction but I could attach little or no weight to these contentions because of the inability to assess the witness through cross-examination. There were also some strong conclusions made by the doctor such as the claimant never intended to transfer his lands to anyone (report of 9 January 2010). I attached no weight to these types of conclusions. 8. In his January 2010 report the doctor had stated that the defendant had come to him in 1993 and asked him for a letter that the claimant was mentally fit to do a land transaction. The letter was requested by the Attorney […]. His report states that he had called [the attorney] and informed her that the claimant was mentally ill and unfit to undertake a land transaction. [The attorney] denied having any such conversation with the doctor or receiving such a call. This was a question of fact that would have required me to assess the respective witnesses on cross-examination.

20 [1993] 2 FLR 97. 21 Ibid [4]. 22 Teeluck v Teeluck (n 2) [7].

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I could therefore make no conclusion on that matter as to whether there was this conversation.23 [35] In assessing the oral testimony of the witnesses at trial and their credibility and reliability, the judge preferred Dhanesar’s evidence over that of Sooraj and Ms Ram. He was entitled to do so. In coming to that conclusion the judge in my view embarked on a careful and detailed analysis of all of the evidence. For example, he found Dhanesar to be categorical and consistent on the central point of his evidence that he did not want to lose his interest in the land.24 Nonetheless, he was critical of certain aspects of Dhanesar’s evidence.25 With respect to Sooraj, his assertion that Dhanesar never suffered from mental illness, coupled with his vagueness and evasiveness about any knowledge of same, led the judge to be suspicious of his evidence. Regarding the attorney, the judge was deeply concerned that she, despite her assertion to the contrary, was not acting on behalf of Dhanesar at the time thereby leaving him bereft of proper or independent legal advice. Moreover, the many contradictions in the defence’s case as to the consideration stated in the 1993 deed led the judge to conclude that no consideration had in fact been paid to Dhanesar. Thus he remarked: 9. Given all of the evidence, however, it did appear to me that the claimant was a person who would have needed careful and independent advice and for whom the precaution of obtaining a medical report about his condition at the time of the transaction should have been followed. Even if the attorney did not specifically know of his illness, the defendant ought to have known that the claimant had a mental illness of long-standing for which he was being treated.26 [36] With respect to the evaluative exercise undertaken by the judge, it is my judgment that there was no sufficiently material undermining his conclusions. Having taken proper advantage of hearing and seeing the witnesses, he could therefore have reasonably come to the conclusions which he did in the face of the evidence as a whole.

23 Ibid [7] & [8]. 24 Ibid [17]. 25 Ibid. 26 Ibid.

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[37] Against that backdrop, I can now go on to briefly examine the law on non est factum and apply its principles to the facts of the case.

IX. Law and discussion

[38] The defence of non est factum has its origins in the Middle Ages. Given the preponderance of illiteracy at the time, there was the need for the law to recognise an exception to the general rule that a person is bound by his or her signature on a document in cases where an illiterate individual had the document incorrectly read to him or her before signing.27 The name of the defence comes from the words of the signer’s pleading, “haec scriptum non est factum meum” (this writing is not my deed). [39] The doctrine has over the years been modified and its remit widened to include cases other than those of illiteracy and it may now be possible for a party of full age and understanding to utilise the defence if he or she can establish being misled into executing a deed or signing a document essentially different from that which was intended. As was succinctly stated by Lord Wilberforce in Saunders v Anglia Building Society:28 … a document should be held to be void (as opposed to voidable) only when the element of consent to it is totally lacking, that is, more concretely, when the transaction which the document purports to effect is essentially different in substance or in kind from the transaction intended. Many other expressions, or adjectives, could be used – “basically” or “radically”, or “fundamentally”. In substance, the test does not differ from that which was applied in the leading cases of Thoroughgood (1582) 2 Co. Rep. 9b and Foster v Mackinnon (1869) L.R. 4 C.P. 704, except in moving from the character/contents distinction to an area in better understood modern practice. [40] The effect of a successful plea of non est factum is that the deed or is void, even if it had fallen into the hands of, or acted upon by, an innocent third party. In most cases

27 This exception was firmly established in Thoroughgood’s Case (1584) 2 Co. Rep. 9. 28 (n 1).

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the mistake would have been induced by fraud, but this may not be a necessary factor. As set out in the oft cited passage of Byles J in Foster v Mackinnon,29 the deed or contract: … is invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signor did not accompany the signature; in other words, that he never intended to sign, and therefore in contemplation of law never did sign, the contract to which his name is appended. [41] Given the far reaching implications of its effect, the Commonwealth courts share the consistent view that the application of this doctrine, by necessity, must be kept within narrow confines. The reasoning behind this consensus is mainly twofold. Firstly, consideration must be given to the deleterious effect which a void document may have on innocent third parties,30 moreso if the confidence of third parties who rely upon the authenticity of signatures is not to be eroded.31 Secondly, as explained by Donovan LJ in Muskham Finance Ltd v Howard,32 “much confusion and uncertainty would result in the field of contract and elsewhere if a man were permitted to try to disown his signature simply by asserting that he did not understand that which he signed.”33 [42] Nonetheless, Lord Wilberforce in Saunders recognised that the plea of non est factum was still a vital tool that may be implemented, albeit in rare circumstances.

But there remains a residue of difficult cases. There are still illiterate or senile persons who cannot read, or apprehend, a legal document; there are still persons who may be tricked into putting their signature on a piece of paper which has legal consequences totally different from anything they intended. Certainly the first class may in some cases, even without the plea, be able to obtain relief, either because no third party has become involved, or, if he has, with the assistance of equitable doctrines, because the third party's interest is equitable only and his conduct such that his rights should be postponed. Certainly, too, the second class may in some cases fall under the heading of plain forgery, in which event the plea of non est factum is not needed, or indeed available and in others be reduced if the signer is denied the benefit of the plea because of his negligence. But accepting all that has been said by learned judges as to the necessity of

29 (1869) L.R. 4 C.P 704. 30 G. Kodiliyne, M. Kodiliyne, Commonwealth Caribbean Contract Law (Routledge 2014) p 138. 31 M. Furmston, Cheshire, Fifoot & Furmston’s Law of Contract (17th edn, Oxford University Press 2017) p 336. 32 [1963] 1 QB 904. 33 Ibid p 914.

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confining the plea within narrow limits, to eliminate it altogether would, in my opinion, deprive the courts of what may be, doubtless on sufficiently rare occasions, an instrument of justice.34 (Citations removed) [43] Therefore, it may only be in exceptional circumstances that a person of full capacity will be able to satisfy the key elements of non est factum, as established in the leading authority of Saunders. For a successful plea of non est factum, a party must establish: 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.

Dhanesar’s Disability

[44] Having already endorsed the trial judge’s assessment of, and conclusions on, the medical evidence relative to Dhanesar, it follows that this court agrees with the trial judge that Dhanesar suffered from a mental disability. In particular, his mental vulnerability was such that it left him susceptible to influence due to a fragile ego structure, and this formed the foundation for the judge’s conclusion that the effect of this particular vulnerability was a general susceptibility to influence, particularly by members of his family. The import of this conclusion was that it became of little or no relevance whether the medical evidence established that Dhanesar was suffering from a relapse or was experiencing a period of clarity at the time of the execution of the deed. Stated otherwise, having regard to the chronic and general nature of his condition, Dhanesar was someone who was and would have remained particularly vulnerable. [45] Having arrived at this conclusion, it then became a question of whether or not this particular vulnerability was such that it would have prevented Dhanesar on his own from appreciating any fundamental difference (if it is found to differ as a question of law)

34 (n 1) pp 1025-2026.

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between what he thought he was signing and the deed which he in fact executed at that time. After conducting his assessment of the evidence of both Sooraj and Dhanesar the trial judge was satisfied that it was. He found that Sooraj was not only solely responsible for instructing the attorney as to the preparation of the deed and its contents, but that Dhanesar, who had been taken to the office by Sooraj, was encouraged to sign the document divesting him of his interest. This he did without having received anything by way of consideration, contrary to the terms recited in the said deed. The judge was of the view therefore that the operation of Dhanesar’s disability prevented him from appreciating on his own the contents and effect of the deed he signed, and the affixing of his signature in all the circumstances came about through the prevailing influence of his family, particularly his brother Sooraj. These were conclusions that he was properly entitled to arrive at on the evidence, and this court makes the concurrent finding that Dhanesar’s condition was sufficient in all the circumstances to support the conclusion of the trial judge on non est factum, at least with regard to this limb, and he was therefore not plainly wrong.

What Dhanesar signed versus what Dhanesar thought he was signing; was the document radically or fundamentally different?

[46] The deed of 1993 saw Dhanesar assign his interest in the subject lands to both his mother and brother, Sooraj, as joint tenants. Dhanesar’s position on the evidence was that he never intended to wholly divest himself of his interest, but to keep it outside of the reach of his wife, who his family had convinced him was being unfaithful and who would lay claim to these lands upon their inevitable separation. It was his belief therefore that he was signing a document that would have accomplished this and testified that he did not know that he was in fact executing a deed, nor was he aware of the import of such a deed. [47] Counsel for Sooraj in turn submited that the deed as executed was not fundamentally or radically different from what was within Dhanesar’s contemplation as it effectively prevented his wife from obtaining any interest in the subject lands. That it was not accomplished in the specific manner in which Dhanesar envisioned is, in the context of

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the plea, irrelevant. Further, inasmuch as it was, by his own evidence, his aim to protect his interest from his wife, there was no mechanism available to him in law to do so while simultaneously retaining his own said interest. [48] Despite the descriptive terminology employed by the House of Lords in Saunders in an effort to convey the sharp distinction that ought to be present between the document that was in fact signed and that which he or she thought was being signed, difficulties still remain in determining what in fact amounts to a ‘radical’ or ‘fundamental’ difference in all the circumstances of a particular case for the purposes of establishing the plea successfully. In Saunders, an elderly widow agreed to allow her nephew, with the assistance of a third party, Lee, to use the deed to her leasehold property in order to raise funds. A document was prepared and brought to the widow for her signature, and in answer to her enquiries, she was told that it was a deed of gift conveying her interest to her nephew. The document, which in fact purported to convey the said interest to Lee by way of sale, was signed by the widow without having been read by her as her glasses were at the time broken. No monies were ever paid by Lee to the widow or her nephew and Lee subsequently entered into a mortgage with a third party which he defaulted upon. [49] The House of Lords was of the view that although there appeared to be a seemingly impressive distinction between what the widow signed and what she thought that she was signing, a thorough examination of the evidence did not support her claim that the to Lee was fundamentally different from that which she envisioned. In arriving at this conclusion, three of the Law Lords adopted the analysis of Russel LJ in the court of appeal, agreeing that the paramount consideration was the ‘object of the exercise’. The evidence in their view clearly established that it was the widow’s intention all along to enable the assignee of her interest to raise a loan on the security of the property for the benefit of her nephew, an object which would have been accomplished under the document as executed had Lee been honest in his endeavours. The manner in which the object of raising funds for the benefit of her nephew was to be accomplished was never explicitly specified. In fact, it was revealed on the evidence that the nephew was reluctant to have the interest transferred to him personally as he was in the process

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of being separated from his wife and did not want the property to in turn be exposed to possible exploitation in those proceedings. All of these considerations were vital in establishing that the widow was, in all the circumstances, prepared to utilise her property to the benefit of her nephew, and would have more likely than not executed an assignment to Lee provided that she was satisfied that it would have enured to her nephew’s benefit. [50] This analysis and conclusion of the House of Lords in Saunders is undoubtedly relevant to this present case. It quite clearly informs the appellant’s argument that the objective of the respondent (protecting his interest from his wife) was met by the deed as executed. By transferring the property to both his mother and brother as joint tenants, it ensured that his wife could not lay claim to any interest in the subject lands if they in fact became estranged. While there might be some force in this argument, it ignores a fundamental aspect of the evidence with which the trial judge did in fact find favour. The judge below accepted the evidence of Dhanesar that it was his family, specifically his sisters and brother, who convinced him that his wife was being unfaithful to him and that he ought to do what was necessary to ensure that she did not take from him his inheritance, that is, his interest in these lands. The judge also accepted that while he may have been persuaded by his family members that he ought to take steps to protect his interests, it was never his intention to do so by forfeiting his said interest in the lands entirely. As previously stated, these were findings that the trial judge could properly have come to on the evidence placed before him and he was therefore not plainly wrong in doing so. It is therefore an incomplete and somewhat misleading assertion that the object of the exercise was met by the deed as executed. While it is unarguable that by transferring his interest in the lands to his mother and brother, Dhanesar’s wife could no longer maintain any claim to it, it does not address Dhanesar’s clearly expressed intention to retain his own interest in what was his inheritance left to him by his father. The retention of this interest was a fundamental aspect inextricably linked to any consideration of the objective of the transaction, and by extension the assessment of the character of the document signed as against that which Dhanesar thought he was signing.

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[51] I therefore concur with the finding of the trial judge that the 1993 deed as executed was fundamentally and/or radically different from the document Dhanesar thought that he was executing and it was never his intention to completely divest himself of his interest in the subject lands, even in a bid to protect himself from a threat he was persuaded was imminent. [52] As to the appellant’s submission that Dhanesar’s intention could not be realised by any device contemplated by law, I find this argument to be of no relevance in the context of this discussion. The respondent is a layman and it cannot be a realistic expectation that he would be aware of the mechanisms of law or the parameters in which they operate. He cannot therefore be penalised for expectations which, without proper legal advice, he may reasonably have held. As I have already expressed, I agree with the finding of the trial judge that the respondent was not the recipient of proper or independent legal advice before the execution of the 1993 deed (a feature of even greater weight and significance when viewed in the context of Dhanesar’s particular vulnerability) and he therefore would not have appreciated at the time that not only could his intention not be realised in law, but the document that he was about to execute was certainly not drafted to allow him to retain his said interest.

Was Dhanesar careless in signing the 1993 deed?

[53] To successfully plead the doctrine of non est factum, the claimant must also prove that he or she was not careless in affixing their signature to the document in question. It follows therefore that, notwithstanding a party’s success in establishing that the document was of a fundamentally different character and that their disability prevented them from appreciating this fundamental difference, the plea may still be defeated if he or she cannot show that they were not careless in the execution of the document. [54] The case of Saunders is also instructive on this point. The Law Lords were of the view that the signor may not disown his signature, notwithstanding the fact that the document was radically different from that which he intended to sign, unless he or she proves that they exercised reasonable care. What amounts to reasonable care will again depend on all the circumstances of the case and the nature of the document signed. The standard of

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‘reasonable care’ requires however, further qualification. Within the context of the plea of non est factum, the standard cannot be the same which operates usually in the wider civil law for the simple reason that such a ‘reasonable person’ will not usually be able to rely on the doctrine at all. The test therefore is a subjective one, specific to the person and the circumstances of the individual case. The question to be addressed then becomes whether or not that person took such care as one so disadvantaged could have been expected to take.35 [55] The onus of proof lies on the signor to establish that he acted carefully, and not on the other side to prove the contrary.36 This requirement that the signor must not have been careless or negligent is one seemingly based on the principle that a party must not benefit or gain an advantage from his own wrong. [56] The question of negligence or carelessness assumes even greater significance where the case involves an innocent third party into whose hands the signed document has now fallen and who desires to act upon its contents. Bearing in mind that a successful plea renders the signed document void, it is understandable why the courts have been very careful in their application of the doctrine where its effect would be to leave an innocent third party completely disenfranchised. Where there is no innocent third party, the test of carelessness must still be strictly applied.37 However, in the overall assessment of the particular circumstances of a given case, whether or not an innocent third party is involved and the extent to which they will be affected are considerations which must be accordingly weighed.38 [57] I now turn to the particular circumstances of this case in order to determine whether the trial judge was correct in concluding that Dhanesar was not careless or negligent in the signing of the 1993 deed. Several factual findings of the judge are immediately relevant, all of which this court has found no reason to overturn. Firstly, having had the

35 G.H. Treitel, The Law of Contract (11th edn, Sweet & Maxwell, London 2003) p 329. 36 Cheshire (n 31) p 339. 37 See Saunders (n 1) pp 1016, 1019, 1027, 1038. 38 The Australian courts however have seemingly adopted an approach which renders the question of carelessness irrelevant where no innocent third party is involved: see Halsbury’s Laws of Australia (2017) [110-5645] and [110- 5650].

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benefit of observing not only Sooraj and Dhanesar, but also the attorney at law responsible for the preparation of the deed and before whom it was executed, the judge was satisfied that the deed was neither read over nor its contents explained to Dhanesar before he affixed his signature. This was especially concerning when it was the attorney’s initial position that she was in fact acting on behalf of Dhanesar, a position that the judge had cause to reject as she was unable to produce any written instructions to this end. She also disclosed that her services were in fact paid for by Sooraj, not Dhanesar, and when Dhanesar in 2002 had gone to other attorneys with respect to the 1993 deed, she wrote in response on behalf of Sooraj and his mother. The judge concluded that it would have been a serious conflict of interest to act for Dhanesar and later Sooraj when the deed was challenged, and it was more likely than not that she had been acting all along for Sooraj.39 [58] There was also significant divergence in the evidence of both the attorney and Sooraj with respect to the contents of the 1993 deed. Whilst the deed recited that consideration was in the sum of $80,000.00, both individuals gave different accounts as to its payment. The attorney in her evidence said that she had been instructed by Dhanesar that the payment had already been made to him by the time of execution, whereas Sooraj disclosed that the money was to be paid over a period of time via instalments and that he was the one who gave his mother the money to pay Dhanesar. He also went on to say that the sum of $65,000.00 was paid to Dhanesar in two instalments. Given these inconsistences, the judge went on to reject the evidence of Sooraj, and accepted the evidence of Dhanesar that no monies were in fact paid to him. [59] These findings of the judge, coupled with his aforestated conclusions on the mental capacity of Dhanesar, are significant in the context of the discussion as to the carelessness of the respondent. For whatever reason, it was clear that there was cause for Dhanesar to seek to protect his interest in the subject lands from his wife. By his own evidence, Dhanesar, some years prior to the execution of the 1993 deed, was involved in a relationship with a woman who had taken from him the sum of $37,000.00. It is against this backdrop, and with full knowledge of his particular mental vulnerability, his family

39 Teeluck v Teeluck (n 2) [14].

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must have deemed it best to have him cede his interest in the lands, lest he lose same to his wife following their seemingly imminent separation. To this end, the judge was satisfied that Sooraj not only retained the services of an attorney, but instructed her as to the specific contents of the deed, in direct contradiction to what the trial judge found to have been the express and consistent wishes of Dhanesar throughout, that he retain his interest in these lands. The inconsistencies in the accounts given by the attorney and Sooraj relative to the consideration also evidences a bid to manipulate events and engineer a specific outcome on the part of Sooraj. It is clear that an attempt was made to create the impression that Dhanesar was not just divesting himself of his interest seemingly out of the blue, but that he was being adequately compensated in turn. [60] Sooraj’s clear orchestration of events was compounded by the failure of the attorney to not only read and explain the contents of the deed to Dhanesar, but to provide proper advice to him as her purported client, or recommend that he take the deed to another attorney to obtain independent legal advice. Whether or not she was specifically aware of the fact that Dhanesar was mentally vulnerable, the manner in which events unfolded should have alerted her and prompted a greater measure of caution on her part, even if it was out of professional self-interest. Her explanation that it was a family transaction in which she did not deem it necessary to take additional steps is unfortunately insufficient in the circumstances. [61] Counsel for Sooraj emphasised quite heavily the failure on the part of Dhanesar to read the contents of the deed before signing. There was no evidence that Dhanesar was incapable of reading, and ordinarily, a failure to inform oneself of the contents of a document before signing due to laziness or general carelessness or negligence is fatal, particularly in the context of non est factum. The mental vulnerability of Dhanesar is however a unique feature, the operation of which, to my mind, renders any normal approach to answering the question of carelessness somewhat inapplicable. The reasons for this viewpoint are as follows. [62] Notwithstanding his general susceptibility to influence, particularly by members of his family, the evidence is not that Dhanesar was incapable of managing his own affairs on a

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day to day basis, nor that he could not on his own make certain decisions. The two are clearly not mutually exclusive and a reasonable example of its common operation can be found in the circumstances of this very case. Here is a man who, perhaps initially on his own, but certainly with the subsequent encouragement of his closest family, entertained doubts concerning the sustainability of his marriage. Given his prior experience (an incident involving the giving of some $37,000.00 to another woman who then left the country with same), it was agreed that something be done to protect what was in effect their deceased father’s legacy, and his sons’ (Dhanesar and Sooraj) inheritance, the subject lands. To Dhanesar’s mind, this was to be accomplished via a document which would have the effect of placing the lands outside of the reach of his wife. It was never his intention to part with his inheritance. He was then told by Sooraj that his signature was required on the document drafted to protect his interest from his wife and taken by him to the office of the attorney where he signs the 1993 deed. Neither the deed nor its contents are explained to him prior to his signing. It is at this point that it can be said that his vulnerability operated at its peak. Dhanesar does not entertain the notion of reading the deed for himself or making specific enquires, having been told by Sooraj that this was the document he needed to sign to protect himself. For the average man or woman signing in these circumstances, it would have been an act occasioned by misplaced trust which nonetheless could have been avoided by the reasonable act of reading through the document and ascertaining the effects of its contents before signing. The law is generally unsympathetic to those who find themselves in this unenviable position. For Dhanesar however, the appending of his signature is the product of insistent influence exerted by his family and their persistent encouragement that something be done to protect these lands. This is then coupled with the assurances given by Sooraj (who had made all the necessary arrangements, including instructing and paying for the services of the attorney), that the execution of the 1993 deed would be the means through which this is accomplished. [63] In light of these circumstances and his particular susceptibility to influence, it is unsurprising that Dhanesar acted in the manner that he did. It cannot be said that he was

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careless with specific regard to his failure to read the document before signing, nor can his overall conduct be criticised to the extent that a finding of carelessness capable of vitiating his plea in non est factum be arrived at.

X. Disposition

[64] There was a proper and sufficient basis for the trial judge to arrive at the conclusions of fact that he did and it cannot be said that he was plainly wrong in doing so. His determination of the case was not vitiated by an error of law and he correctly applied the law to the facts in holding that all the constituent elements of the plea of non est factum had been established by the respondent. The evidence before him was sufficient to support the determination that Dhanesar Teeluck suffered from a disability of mind which prevented him from appreciating that the 1993 deed was radically or fundamentally different from the document which he envisioned signing, and he was not careless in executing the said deed in all the circumstances. Consequently, this court affirms the decision that the impugned 1993 deed was void. [65] In the premises, the appeal is dismissed. We shall hear the parties on the issue of costs.

P Moosai Justice of Appeal

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