Rachel Calixte David Calixte Claimants v Ayrton Cornelius Sargusingh Administrator in the Estate of Garnet Sargusingh Defendant [ECSC]

JurisdictionSt Lucia
CourtHigh Court
JudgeMason J:
Judgment Date24 June 2008
Judgment citation (vLex)[2008] ECSC J0624-4
Docket NumberClaim No. 507/2004
Date24 June 2008
[2008] ECSC J0624-4

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Claim No. 507/2004

Between:
Rachel Calixte
David Calixte
Claimants
and
Ayrton Cornelius Sargusingh Administrator in the Estate of Garnet Sargusingh
Defendant
Mason J:
1

By this action in which an order for specific performance is being sought, the Claimants claim to have purchased by two (2) separate Agreements for Sale, two (2) parcels of landfrom the deceased (now represented by the Defendant as Administrator of his estate) who died before the due execution of a Deed of Sale.

2

The Defendant denies any Agreement for Sale or the payment of any monies. He further contends that in any event the deceased was suffering from dementia for at least one (1) year before his death and so could not consent to any agreement for sale.

Evidence - for the Claimants
3

Mrs. Shirley Lewis, the former attorney at law for the Claimants, by her witness summary, indicated that the Claimants and the deceased attended at her office on 18th August, 2003 and again on 18th September 2003 with respect to the sale and purchase of two (2) disparate parcels of land belonging to the deceased. On each occasion, Mrs. Lewis prepared an Agreement for Sale which the parties all signed in her presence. According to her, she counted out the money which the Claimants gave her and handed it over to the deceased. She said that it was clear to her that the parties had discussed before coming to her the terms of the agreement which she reduced to writing. One copy each of the agreements was given to the Claimants and the deceased and she kept a copy in her office. Mrs. Lewis stated that since the transactions were in cash, she explained to the deceased that she needed to lodge cautions against the property in order to protect the Claimants' interest until the surveys were registered. The deceased signed the caution as requested. The cautions were registered on 30th September, 2003.

4

Mrs. Lewis stated that it was only when the second caution was ready to be lodged that she realised that that her copy of the second agreement was undated. She then inserted the date of 8th September 2003 instead of 18th September 2003. She also dated the second caution 8th September 2003.

5

When the surveys were registered and the property mutated and it was time for the Deed of Sale to be signed, the deceased was resident in the Marian Home. When she went there together with the Claimants the deceased appeared sedated. She felt it prudent to have another Notary present and so one (1) week later accompanied by that Notary she returned to the Marian Home but the deceased again appeared sedated and bloated. Mrs. Lewis decided against having the deceased sign the document and so filed an action to have the Registrar of the High Court sign on his behalf. Before the matter was heard, the deceased died.

6

Under cross examination Mrs. Lewis denied Counsel for the Defendant's suggestions that there were more than two (2) agreements and reiterated the circumstances of the signing of the agreements and the mistake surrounding the dating of the second agreement. She explained that of the three (3) copies of the first agreement the one kept in her office though signed by the parties and herself was undated. The copies given to the parties bore dates. A similar situation occurred with respect to the second agreement. She also indicated that because the Claimants informed her of their intention to purchase the second portion of land, she did not register the caution on the first portion. When she filed the caution for the second portion she inserted on both the caution and the second agreement the date of 8th September instead of 18th September, the date when the transaction had in fact taken place. Mrs. Lewis further explained that she had to retrieve from the Claimants their original copy to produce to the court on the day of the trial as ordered by the Judge her copy having previously been filed in the Land Registry.

7

Mr. Rosemont Joseph, former gardener to the deceased, stated that he had worked for the deceased for over 32 years until the deceased fell ill and went to the hospital. He said that he knew when the deceased sold the land to the Claimants because the deceased drove himself to and from work every day and appeared normal up until he went to the hospital.

8

This evidence was not dislodged under cross examination.

9

The first Claimant gave evidence on behalf of both Claimants. In her Witness Statement, Mrs. Calixte stated that she had known the deceased for 14 to 15 years, that he lived not far from her, that they were on friendly terms. In January 2003 he offered her a parcel of land for sale which she and her husband agreed to purchase. They commissioned a surveyor to survey the property and went with the deceased to see their lawyer to have an agreement for sale drawn up. While at the lawyer's office the deceased indicated that he had a second parcel of land for sale and the Claimants offered to purchase that as well.

10

Mrs. Calixte indicated that the deceased accompanied the surveyor to the property where he pointed out the boundaries of his land and the portions to be excised. She later learnt that the deceased was in the Marian Home and when she visited him there, he suggestedthat she bring the documents for his signature. She later accompanied her lawyer to the Home.

11

Under cross examination she denied hearing that the deceased was senile "at the latter part of his days". She stated that in fifteen (15) years of knowing the deceased and being his neighbour, she never noticed anything strange about his behaviour, nor did she hear anyone in the area say that he did strange things. She denied taking the opportunity of getting his land at a lower price than the true value.

12

Mr. Rufinus Baptiste, licensed Land Surveyor, in his Witness Statement stated that he carried out two (2) surveys for the Claimants, that on both occasions the deceased was present and pointed out the boundaries to him and the areas to be surveyed and that at all times he appeared normal.

13

Under cross examination he admitted to being aware of a transaction between the parties but was unaware of the price the Claimants were paying for the parcels of land. He explained that his description of the deceased as "normal" was of "someone who can converse, comprehend, ……someone who is not senile, who is ok". He denied completing the surveys "in a hurry" stating that the surveys were done in August and September 2003 and the plans were authenticated in May 2004.

- for the Defendant
14

In his witness statement, the Defendant Ayrton Sargusingh, son of the deceased stated that though he had been living in Canada for over twenty (20) years, he made periodicvisits to see his father. In 2002, on one such visit he noticed his father exhibiting strange behaviour "showing absent mindedness, senility and partial amnesia". From time to time the deceased would not remember the Defendant's name or the Defendant's brother's name, he would forget to do simple things like locking the front door when leaving the house, putting out the garbage etc. In November 2003 he made an appointment for his father to see a psychiatrist who confirmed that the deceased was suffering from senility. In April 2004 he procured an order of the High Court making him his father's curator.

15

He was of the opinion that his father could not in the circumstances have consented to any agreement. On searching his father's records, he could not locate any receipts for the sums which the Claimants were supposed to have paid to his father. He was of the view that at the time when the Claimants were supposed to have purchased the land, his father was being well taken care of by him and his siblings and "did not want for anything".

16

Under cross examination, the Defendant admitted that in 2002 when his father visited him in Canada and he noticed that he was acting strangely, yet he allowed him to return to St. Lucia to continue to live alone. The Defendant stated that he had no reason to believe that his father could not live alone, that he was a very independent person.

17

He reiterated that when his father signed the agreements he did not know what he was doing. Further the signature on the second agreement was not his father's. He conceded that the doctor saw his father after the agreement had been signed and that he did not himself know about the agreements for sale. He stated that the doctor went to his father's drugstore in November 2003 to conduct the examination.

18

Also giving evidence for the Defence was the Defendant's brother who in his Witness Statement more or less repeated the Defendant's claims. Cross examination did not reveal anything more of significance.

19

The final witness for the Defence was Mr. Sylvester Leon, the self proclaimed best friend of the deceased. In his Witness Statement he indicated that he had known the deceased for over 25 years, that he visited and talked to him frequently and also did "odd jobs" around the deceased's house. He stated that from about 2002, he noticed the deceased acting strangely. He said that in 2003 the deceased told him that some people had asked him to sell them his land but that he was not even sure who the people were or what deal he was entering into or what he was asking.

20

Under cross examination he vehemently denied that statement saying instead that he went to the deceased at his drugstore and told him that he had seen the "trace line" (for the survey) and the deceased denied knowing anything about it. He stated that the deceased lived alone but that he had a maid and a gardener and he went to work every day. He conceded that although he saw this strange behaviour, he never once alerted the deceased's sons.

Submissions - for the Claimants
21

Counsel for the Claimants considered that there...

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