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Republic of Trinidad and Tobago in the Court Of 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. Page 1 of 26 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. Page 2 of 26 [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. Page 3 of 26 [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 consideration 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). Page 4 of 26 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 evidence 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. Page 5 of 26 [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 Page 6 of 26 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.
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