THE REPUBLIC OF TRINIDAD AND TOBAGO CV 2012 05209 IN THE HIGH COURT OF JUSTICE Between TARA RAMLOCHAN Claimant And RAMDAI RAGBIR (In her capacity as the Legal Personal Representative of the Estate of Capildeo Ragbir who died on the 29 th day of August 2009, the Deceased) First Defendant CAPILDEO RAGBIR CONSTRUCTION AND PROFESSIONAL SERVICES LIMITED Second Defendant Before the Honourable Mr Justice Ronnie Boodoosingh Appearances: Mr Hendrickson Seunath SC leading Mr Edwin Roopnarine for the Claimant Ms Lisa Francis for the Defendants Date: 3 May 2016 Page 1 of 22
JUDGMENT 1. This claim concerns a property located at 206 Churkoo Village, Manahambre Road, Princes Town. It consists of a building and land. 2. The claimant lives at that property with her two, now adult, children. But the property is owned by the second defendant company. The land was purchased on 15 March 2006 as shown in Deed No. DE 200601016541. A building used for residential and business purposes was later built on the land. 3. Capildeo Ragbir (Ragbir) had started the company as a family owned company in September 2005. He was a director of the company. He died on 29 August 2009. For many years before he formed the company he had been a building contractor operating under his own name, without any formal business organisation. He functioned more as a self employed tradesman with workmen. 4. Ragbir was married to Ramdai Ragbir (Mrs Ragbir or Ramdai) in 1974. He had three children with her. The youngest is now 27 years old. The shares in the company were put in Ramdai s name. One of his children, Nirvana Ramnath, was the company secretary at the time the property was bought. The other directors were children of this marriage. Ragbir and his daughter executed the conveyance on behalf of the company. 5. The claimant, Tara Ramlochan, says she had a relationship with Ragbir which began in 1990 and continued to his death. Out of that relationship, she says, two male children were born. These children were born in 1993 and 1994 respectively. The children are Kavi-Raz Ragbir and Revan Shivanan Ragbir. Page 2 of 22
6. Tara Ramlochan had been married in 1990 to one Ramish Ramlochan. However, she says, that relationship ended shortly after, and she and Ragbir got together. However, she has never been officially divorced. Ramlochan s name was entered as the father of her children on their birth certificates. 7. The first issue which I consider necessary to resolve is was Ragbir the father of the claimant s two children based on the evidence before me. 8. There were certain critical bits of evidence. First there were photographs tendered by the claimant. These showed the claimant and Ragbir together on various occasions. They also showed Ragbir with the two boys. Among these were photographs of them sitting with him to do puja, which a minor Hindu would ordinarily do with a relative, usually a parent. There was one with Ragbir and the claimant standing together with one of the boys doing artee for them, which a child would do for his parents, or respected elders. The photographs showed them at different ages with Ragbir. There was a photograph with Ragbir and the children at what seems to be one of their birthday parties. There was another of him being there with one of them blowing out candles of a birthday cake. There were photographs of the claimant, her two children and Ragbir posing together, as you might expect a family would. 9. Second, Ragbir, very significantly, signed a statutory declaration on 20 May 2002 declaring him to be the father of the two boys. This statutory declaration provided that the claimant was living with him in a common law relationship since 15 September 1991 and that she was married on 5 February 1990 to Ramlochan and they were separated on 30 July 1990. Third, he signed their passport application forms as their father. They also carried his surname. Page 3 of 22
10. It is understandable that Ramlochan s name was put on their birth certificates given that he and the claimant were still married at the times of the birth of the children. But it is clear that Ragbir acknowledged the children as his own throughout his life and maintained a relationship with them. The evidence is clear and I find as a fact that Ragbir was the father of the claimant s two children. 11. The next issue to be resolved is whether he had a continuing relationship with the claimant. First, he had two children with her and maintained a relationship with them over the years as shown by the photographs, statutory declaration and passport application forms. 12. Second, the claimant, in support of her contention, has provided several rent receipts relating to various places where she lived. I accepted these receipts as being genuine. They show Ragbir paying the rent for the places. These included at Tunapuna and Princes Town. 13. Third, when Ragbir got ill with his kidneys and required a kidney transplant, the claimant s sister, Goomtie, gave one of her kidneys to him. This suggests to me a close relationship of the claimant to him and that Ragbir was considered sufficiently close, that the claimant s sister would give up one of her kidneys for his benefit. The claimant s evidence, which has not been refuted, is that her sister took 6 months to recover fully and Ragbir compensated her for her inability to work and inconvenience in the sum of $15,000.00. 14. Fourth, as Ramdai also gave in her witness statement, at paragraph 19, Ragbir went to live with the claimant at the subject property after his surgery for about one year before his death. Page 4 of 22
15. Fifth, there was a letter written by Capildeo Ragbir to the claimant, which Mrs Ragbir accepts was written by her husband, which declared his love for the claimant. 16. What all of this evidence tells me is that Ragbir continued a relationship with the claimant from the early 1990s until his death in 2009. In fact, the evidence is that he maintained Ramdai and her children also. He was a contractor. He built a home for his wife and children in Rousillac and he provided for them. In effect he had two families. He would spend time between both households. 17. While Ragbir continued to live with his wife, it is equally clear that he maintained a household with the claimant. He had contact often with the claimant and her household even as he continued to live and maintain his wife and their children. In effect he had two households. 18. It is in light of these findings that the transaction for the subject property has to be considered. The claimant adopted a somewhat scatter-shot approach to her case. Her claim is for the property. But the claim was one for specific performance of an agreement; alternatively that the property is held on trust for her and her children; alternatively that the claimant has an equitable interest and/or an irrevocable licence to occupy the property; alternatively for enforcement of a compromise agreement; alternatively, for breach of contract; alternatively a claim for provision under section 95 of the Succession Act, Chapter 9:02 that Ragbir failed to make reasonable provision for her. 19. The defendant s claim was for possession; damages for trespass and mesne profits. Page 5 of 22
20. The claimant s case, from the written submissions, emphasised that she had a common law relationship and an agreement between the claimant and Ragbir resulting in an equitable interest. Following from this, they focus on an alleged compromise agreement as evidenced by correspondence passing between letters from attorney for the claimant and Ramdai Ragbir. 21. The claimant gave evidence that she and Ragbir had several discussions about purchasing a piece of land and building a home for them and their two children. This started in 2006. Ragbir, according to her, suggested he buy the land through the second defendant company as it would be easier to obtain the loan since he was paying off a loan for a new van he had purchased in his personal capacity. She accepted this because he ran the second defendant company and she understood he had full authority to make the proposal on behalf of the second defendant. Even though the company was buying the property, the agreement was that the claimant and the defendant would personally be responsible for paying the loan instalments. It was never their intention that the property should be an asset of the second defendant, but the property was being purchased through the company, as it was easier to get the loan in that way. She said the defendant made the down payment on behalf of both of them. 22. The claimant said she would work as a timekeeper with the Unemployment Relief Programme and she would do private jobs such as decorating, making draperies and doing flower arrangements. She said she assisted in paying the loans for the property. They obtained Town and Country planning approval for use of the premises as both residential and business purposes. 23. They began constructing a house and using the premises as a business. She has occupied the premises with her children since 2008. She said the deceased fell ill when the building was about 50% complete. Page 6 of 22
24. There was a second bank loan taken in 2007 in the name of the company to continue the construction work on the building. Similarly, they agreed the loan would be paid by Ragbir and her even though it was taken out in the name of the company. 25. Ragbir told her once the mortgage instalments were paid off, he would arrange for the property to be transferred to her by the second defendant. 26. She said after the deceased died, she alone has continued to pay the loans for the property without the assistance of the defendant. She said she and Ragbir expended all of the money in constructing the house. She also operates a small roti shop since July 2009 at the premises to maintain herself and her boys. She had a valuation report and since then she has expended over $35,000.00 in continuing the building works. 27. From 10 December 2009 correspondence then passed between the claimant and Ramdai through attorneys. In my view, these letters were admissible since they ultimately resulted in a compromise agreement between the parties. 28. In Oceanbulk Shipping and Trading SA v TMT Asia Ltd and Others [2010] EWCA Civ 79 Longmore LJ stated: [9] There are undoubtedly some occasions on which without prejudice statements can be referred to in evidence. In Unilever plc v Procter & Gamble [2001] 1 All ER 783, [2000] 1 WLR 2436, [2000] FSR 344 Robert Walker LJ described three of the most relevant of them as follows at p 2444: Page 7 of 22
(1)... when the issue is whether without prejudice communications have resulted in a concluded compromise agreement, those communications are admissible.... (2) Evidence of the negotiations is also admissible to show that an agreement apparently concluded between the parties during the negotiations should be set aside on the ground of misrepresentation, fraud or undue influence.... (3) Even if there is no concluded compromise, a clear statement which is made by one party to negotiations and on which the other party is intended to act and does in fact act may be admissible as giving rise to an estoppel. That was the view of Neuberger J in Hodgkinson & Corby Ltd v Wards Mobility Services Ltd [1997] FSR 178, 191 and his view on that point was not disapproved by this court on appeal.... [11] Before dealing with the judge's four reasons it is useful to consider the reason why it is that the general rule is that it is impermissible to give evidence of without prejudice communications and discussions. [12] An early statement of the rule is that of Lindley LJ in Walker v Wilsher (1889) 23 QBD 335, 337, 54 JP 213, 58 LJQB 501: What is the meaning of the words 'without prejudice'? I think they mean without prejudice to the position of the writer of the letter if the terms he proposes are not accepted. If the terms in the letter are accepted a complete contract is established, and the letter, although written without prejudice, operates to alter the old state of things and to establish a new one. If, therefore, in a simple case a proposal to settle a dispute is made in a without prejudice letter and that proposal is accepted either orally or in writing (or by conduct) that letter can be referred to so as to establish that a contract was made and what the terms of that contract are. That was decided in Tomlin v Standard Telephones and Cables Ltd [1969] 3 All ER 201, [1969] 1 WLR 1378, [1969] 1 Page 8 of 22
Lloyd's Rep 309 and is the origin for the first exception to the rule given by Robert Walker LJ in Unilever v Proctor & Gamble. [13] The more modern law begins with Cutts v Head [1984] Ch 290, [1984] 1 All ER 597, [1984] 2 WLR 349 in which Oliver LJ said at p 306:... the convenient starting point of the inquiry is the nature of the underlying policy [of the rule]. It is that parties should be encouraged so far as possible to settle their disputes without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiations... may be used to their prejudice in the course of the proceedings. This statement of the policy was approved by the House of Lords in Rush & Tompkins v Greater London Council [1989] AC 1280, [1988] 3 All ER 737, [1988] 3 WLR 939. Having cited it Lord Griffiths continued at p 1299G The rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence. At p 1300G he considered Walker v Wilsher and said: I cannot accept the view... that Walker v Wilsher... is authority for the proposition that if the negotiations succeed and a settlement is concluded the privilege goes, having served its purpose. In Walker v Wilsher the Court of Appeal held that it was not permissible to receive the contents of a 'without prejudice' offer on the question of costs and no question arose as to the admissibility of admissions made in the negotiations in any possible subsequent proceedings. [14] The last sentence of the above quotation indicates that an argument could be available that the without prejudice rule only applied to exclude admissions and not more general statements made in the course of without prejudice negotiations... [18] My Lord, Stanley Burnton LJ, is better qualified to assess this authority than I but, as it seems to me, this is not a decision on extending or creating any kind of Page 9 of 22
exemption from the without prejudice umbrella. He was only concerned with the separate question whether a written settlement agreement, which expressly or implicitly referred to another written document, could be explained by reference to that document if it was a without prejudice document. He (with respect rightly) held that it could. But that was because it was referred to as part of the agreement not because it was a background fact in the light of which the document had to be construed. My Lord referred to Tomlin's case as authority for the proposition that without prejudice communications are admissible on the question whether a contract was concluded. He added: Similarly, in the case of a settlement made in without prejudice correspondence, the correspondence, although privileged when sent and received, is admissible in the event of a dispute as to the terms and meaning of the settlement, on the same basis that any correspondence in which a contract is made is admissible. This is an unexceptionable statement of the law. If the terms of an agreement have to be gathered from correspondence, that correspondence will be looked at to determine the terms of the contract and (to that extent) their meaning. My Lord was not, I think, intending to suggest that the correspondence would be admissible in relation to some background fact which was not part of the terms; still less was he suggesting that oral without prejudice negotiations could be given in evidence for such a purpose. Cross and Tapper, Evidence, 11th ed (2004) p 506 confines itself to saying that, if without prejudice negotiations succeed and constitute a binding contract, that can be proved by the use of without prejudice material. The latest (17th) edition of Phipson (2009) says the same (para 24-24) citing Admiral Management as authority for the proposition, without apparently considering that it could be read more widely. Passmore on Privilege 2nd ed (2006) para 10 057 expressly states that settlement negotiations are not admissible to aid the construction of the agreement to which they give rise. In the light of Ofulue this seems to me to be both good sense and good law.... Page 10 of 22
29. Based on this authority, it is appropriate in my view to look at these letters passing between attorneys to identify the terms of the compromise agreement which was concluded, even if they were without prejudice communications. 30. It is important to set the context of the correspondence. On 10 December 2009, the first defendant s attorney wrote to the claimant. Ms Sandra Soobransingh, attorney-at-law, wrote on behalf of Ramdai Ragbir, lawful widow of the deceased. Among other things, she wrote that her client was the sole shareholder of the second defendant company. The deceased was merely the incorporator and a director of the said company. She asserted the property belonged to the company. 31. A letter without prejudice by Ms Soobransingh, on behalf of Ramdai Ragbir, dated 28 May 2011 was advanced. In my view, it was appropriate to look at this letter. It noted: My client instructs that she is prepared to resolve the issue of ownership of the property situate at No. 206 Churcoo Village, Manahambre Road, Princes Town. In this regard, the following is proposed: The Directors of the Company are willing to surrender their entitlement in the subject property on the following conditions: Deposit of $50,000 down payment on purchase price to be refunded to my client; Your client to liquidate the outstanding mortgage; Upon liquidation, the property to be transferred to the deceased children namely; Kaviraj Ragbir and Revan Ragbir respectively. Your client to bear all the costs of the transaction. Page 11 of 22
Should the above be acceptable to your client, please do not hesitate to contact me so I can further advise my client and hence have closure in this matter. 32. The claimant s attorney, Mr Balroop Roopnarine, wrote to Ms Soobransingh, on behalf of the claimant on 8 June 2011. The essence of the points of the letter was a proposal for the claimant to liquidate the mortgage and the property be transferred to her as trustee of her sons since they were then minors attending school; agreement to pay the $50,000.00 but by instalments given the fact that the claimant had a small roti shop and had to maintain the mortgage instalments and her children; and agreeing to meeting the transaction costs. 33. On 24 June 2011, Ms Soobransingh replied. Her reply included: My client has agreed for your client to liquidate the outstanding mortgage at Republic Bank Limited. She was advised to visit the said bank to make further enquiries in relation to the transfer of the mortgage which you will be informed of as soon as she receives same. With respect to the $50,000.00 deposit, your client s method of payment is not acceptable to my client. She is proposing that your client pay the sum of $20,000.00 on or before the 31 st day of December 2011 and the balance in monthly instalments of $1,500.00 to commence 31 st day of January 2012 and to continue until the entire amount is liquidated. My client is suffering severe financial hardship since the death of her husband. Further that the only person who is supportive is her son who gets work off and on. She has never been employed and as such it is very difficult for her to gain employment in the labour market. Page 12 of 22
My client instructs that the small payment of $50,000.00 will go a long way for her and she is looking forward to receiving same. I trust that you will further discuss this with your client with the view of resolving this matter amicably. Should the above be acceptable to your client, the necessary arrangements can be made to set out same in an agreement. I look forward for your co-operation and response in this matter. On 28 July 2011 Mr Roopnarine responded to this letter. His letter stated, among other things: I refer to previous correspondence in reference with the captioned matter ending with your of 24 th June 2011 and wish to advise that my client has agreed to resolve this matter on the basis of the proposals contained in the correspondence passing between us. May I please have your draft of the agreement for approval. The essential terms of the agreement are, inter alia as follows:- 1. My client will liquidate the mortgage in favour of Republic Bank Ltd on the property situated at No. 206 Manahambre Road, Churkoo Village, Princes Town taken by Capildeo Ragbir Construction and Professional Services Limited for the purpose of constructing the building now standing on the property; 2. Upon liquidation of the mortgage the said Company will transfer the said property to my client Tara Ramlochan in trust for Kavi Raz Ragbir and Revan Shivanan Ragbir, the sons of the late Capildeo Ragbir for their absolute use and benefit; 3. My client will also pay to the Company the sum of $50,000.00 in instalments as set out in your letter of 24 th June, 2011; Page 13 of 22
4. The Company, acting through Mrs Ramdai Ragbir will provide to my client a copy of the Mortgage Deed and copies of all correspondence received by the Company relating to the said mortgage. As requested I enclose herewith copies of the Birth Certificates of the children together with joint Statutory Declarations sworn to by Tara Ramlochan and Capildeo Ragbir for your information. (Emphasis supplied) 34. On 29 September 2011 Mrs Soobransingh wrote to Mr Roopnarine indicating that she has been unable to contact her client. She was asking for more time to respond. However, by this time from the letters there had been a full agreement on the issues, subject only to recording these in writing in the form of a written agreement. 35. Mr Roopnarine wrote on 22 November 2011 and again on 22 February 2012 to Mrs Soobransingh reiterating the terms of the agreement and his client s willingness to resolve in the matter in keeping with the terms agreed before, subject to the dates being adjusted given that the time had lapsed for the agreement to take effect. 36. What this course of correspondence showed was that there was a compromise agreement made which was only subject to being put into writing. 37. It is clear from the evidence in cross examination of Ramdai Ragbir that the company had all but ceased to have been operational from 2008 before the death of Ragbir. She said the company folded up in 2008. This coincided with Ragbir s illness. This tells me, that contrary to the evidence of the defendants, the company operated as one with the person of Capildeo Ragbir. Without his skill as a builder/contractor the company did not function. Page 14 of 22
38. It is clear from the evidence that, even though the children of his wife were the directors along with him, and that his wife was the sole shareholder, the company was run by and tied to Capildeo Ragbir in a personal sense. It was his company. 39. I do not accept the evidence of Neetu Ragbir-Maloney, Ragbir s daughter, that the company was run as a family concern. It was incorporated by Ragbir. He also exercised effective control over it. 40. After he died, Mrs Ragbir says it folded up in 2008. Thus it is clear that when the negotiations were being made, Mrs Ragbir was acting and giving instructions both in her personal capacity and as the legal representative of his estate but also as the sole shareholder of the company. This is clear from the letters sent by Mrs Soobransingh. 41. I also do not accept the evidence of Mrs Ragbir that she did not approve of some of the correspondence from Mrs Soobransingh. The defendants had the option of having her summoned as a witness to put to her that she had acted without authority. This was not done. I also did not find Ramdai s explanation that she did not authorise and approve of the proposal to be convincing. This was an attempt to retreat from her previous agreement. 42. What I find happened is that Mrs Ragbir changed her approach some time after the agreement was made and subsequently engaged a new attorney to seek to bring forward new terms. Page 15 of 22
43. In this case, given the entire factual circumstances, it is disingenuous of the defendants to seek to draw a distinction between the second defendant as a company and the first defendant, as at the time of the correspondence they were in effect one and the same. 44. The court is entitled to give effect to this concluded agreement between the first defendant and the claimant appropriately modified to the present circumstances. 45. In the alternative, it was submitted by the claimant that a trust was created in favour of the claimant and her children based on the evidence as a whole. 46. The case of Stack v Dowden [2007] 2 All ER 929 at 929-930, a recent House of Lords decision, provides some help with the approach to applying trust principles. That was a case whether a property was purchased and conveyed in the joint names of the parties who had shared a domestic union and had four children and lived together for 19 years. They separated and the question arose about how the property should be shared, one having left the other with the children in the home. While the case is not on all fours with this case, the principles to be applied at set out in the head-note and distilled by Baroness Hale are of some assistance as follows: A conveyance into joint names, in the domestic consumer context, established a prima facie case of joint and equal beneficial interests unless and until the contrary was proved. The contrary could be proved by looking at all the relevant circumstances in order to discern the common intention of the parties. The search was to ascertain their shared intentions, actual, inferred or imputed, with respect to the property in the light of their whole course of conduct in relation to it. As the search was for the result which reflected what the parties, in the light of their conduct, had to be taken to have intended, it therefore did not enable the court to abandon that search in favour of the Page 16 of 22
result which the court itself considered fair. The approach to quantification in cases where the home was conveyed into joint names should certainly be no stricter than the approach to quantification in cases where it had been conveyed into the name of one only but there were differences between sole and joint names cases when trying to divine the common intentions or understanding between the parties. The burden would be on the person seeking to show that the parties had intended their beneficial interests to be different from their legal interests, and in what way. The domestic context was very different from the commercial world and many more factors than financial contributions could be relevant to divining the parties' true intentions. The factors included: any advice or discussions at the time of the transfer which cast light upon the parties' intentions at that time; the reasons why the home was acquired in their joint names; the reasons why (if such was the case) the survivor was authorised to give a receipt for the capital moneys; the purpose for which the home was acquired; the nature of the parties' relationship; whether they had children for whom they both had responsibility to provide a home; how the purchase was financed both initially and subsequently; how the parties arranged their finances, whether separately or together or both; how they discharged the outgoings on the property and their other household expenses. When a couple were joint owners of the home and jointly liable for the mortgage the inferences to be drawn from who paid for what could be very different from the inferences to be drawn when only one was the owner of the home. The arithmetical calculation of how much was paid by each was also likely to be less important. It would be easier to draw the inference that they intended that each should contribute as much to the household as they reasonably could and that they would share the eventual benefit or burden equally. The parties' individual characters and personalities could also be a factor in deciding where their true intentions lay. In the context of cohabitation mercenary considerations might be more to the fore than they would be in marriage, but it should not be assumed that they always took pride of place over natural love and affection. There could also be reasons to conclude that, whatever the parties' intentions at the outset, their intentions had changed. Having taken all Page 17 of 22
the factors into account, cases in which the joint legal owners were to be taken to have intended that their beneficial interests should be different from their legal interest would be very unusual. In the instant case there were many factors to which the defendant could point to indicate that the parties did have a contrary intention. When the property was bought, both parties knew that the defendant had contributed far more to the cash paid towards it than had the claimant. Furthermore, although they planned that the claimant would pay the interest on the loan and premiums on the joint policy, they also planned to reduce the loan as quickly as they could. Those were factors which could, in context, support the inference of an intention to share otherwise than equally. That context was supplied by the nature of the parties' conduct and attitudes towards their property and finances. There could not be many unmarried couples who had lived together for so long, who had four children together and whose affairs had been kept as rigidly separate as those of the parties were kept. That was all strongly indicative that they did not intend their shares, even in the property which was put into both names, to be equal, still less that they intended a beneficial joint tenancy with the right of survivorship should one of them die before it was severed. (Emphasis supplied) 47. How do these principles apply to this case? First, in my view, it is unnecessary to find that a cohabitational relationship existed within the meaning of the Cohabitational Relationship Act, in order to find a trust existed. But this is an unusual claim. This is a fight essentially between a company which practically speaking died when the incorporator got ill and someone with whom the incorporator had a long standing relationship. On the surface it appears to have a commercial basis, but the transaction, when closely examined, is really in the nature of a domestic arrangement. The application of these principles must necessarily be novel. Page 18 of 22
48. The property was put into the name of the company. The claimant s explanation was that this was to make it easier to get a loan given that Ragbir already had a loan. The claimant referred to the loan for the vehicle owned by Ragbir. This explanation sounds plausible. 49. The claimant also says that the payments to the mortgages for the property were paid first by Ragbir through the company, and then by her after his death. Ragbir had himself given a director s guarantee for the loan. She said he had more than once expressed that the property would be a home for them and their children. This was not refuted and seems eminently reasonable to accept. 50. They built the house. The claimant operated a roti business there. In his last year he lived there after his kidney operation. They had been together from the early 1990s. A $50,000.00 deposit came from Ragbir s daughter s personal account, not from the company. The claimant says this was paid back, but this is denied by Mrs Neetu Ragbir- Maloney. In any event, the compromise agreement provided for the payment of $50,000.00 for the second defendant through Mrs Ragbir. 51. After Ragbir s death, the company did not continue payments. The defendants explanation was this was to force the bank to foreclose on the property. This does not suggest that the directors were acting in the best interests of the company and tends to acknowledge that this property was not a company venture, but more in the nature of an arrangement whereby Ragbir used the company to facilitate the acquisition of the property, not for the company, but for the claimant and her sons. The company was merely a device masking that it was Ragbir who was using the company to facilitate the transaction. Page 19 of 22
52. The claimant continued the payments. Previously, Ragbir had rented accommodation for the claimant and their children. This suggests that he wanted to provide a better and more permanent arrangement for them, to get away from being dependant on rental accommodation. 53. Ragbir had provided a home for his wife and other children. It is understandable that Ragbir would want to also provide a home for his children with the claimant. The claimant has provided evidence of money spent by her, and by Ragbir and her together, to develop the property to a point where they could live in it. 54. The expenses of the property were met by the claimant and Ragbir. There is no evidence to suggest that the company paid the other outgoings for it. There is also nothing to suggest that the company ever had use of the property. 55. In this regard, I reject the evidence of Mrs Neetu-Maloney that she and her family members were involved in the process of acquisition except that as company secretary she had to execute the mortgage transaction. It may well be that she was told otherwise about what the property was for. But some amount of deception invariably follows when a man is engaged in maintaining two separate families. This was how Ragbir conducted his affairs. He had kept his families separate. This had to change necessarily when he took ill and required a kidney transplant. 56. The claimant also took care of the children she had with Ragbir and was the primary care giver of them from birth to adulthood. Page 20 of 22
57. I accept the uncontroverted evidence that Ragbir repeatedly promised to the claimant that the property would be for her and the children. It is clear that he operated two households and maintained two families. The relationship with the claimant and her children was a long-standing one. There was nothing fleeting about it. He was involved continuously in their lives from the early 1990s until his death. It is entirely plausible that, just as he provided for his wife and other children a home, that his intention was equally to provide his other family with a home. This is reflected in the promises, which I find as a fact he made to the claimant, and from his conduct. In his last days he settled into that home with his second family. 58. The discussions between the claimant and Ragbir, the reasons for the acquisition of the property, the nature of their relationship, the fact that they had children together, how the property was paid for, the expenses in relation to the property, and the other matters discussed above, when taken together, they show the shared intention of the claimant and Ragbir. This shared intention was that the property would be for the benefit of the claimant and her children. This is clear from their conduct in the run up to and since the purchase of the property. This was despite the fact that the property was purchased in the name of the company, which Ragbir controlled in any event. 59. Based on my findings in relation to both the compromise agreement and the trust principles discussed above, the claimant has satisfied both the legal and evidential burden and is entitled to judgment. The court s function has not been to make a moral judgment on the basis of whether it was right for Ragbir to maintain his two relationships. While no doubt these events have caused hurt and disappointment from failed expectations to both sides, it is equally clear that Ragbir cared for both of his families and sought to provide for them in the best way he could have. The court s role has been to give effect to this intention and achieve a fair and just result in accordance with the applicable legal principles and the evidence. Page 21 of 22
60. The order will be as follows. The claimant is to pay off any remaining mortgage on the subject property. On the payment by the claimant of the sum of $50,000.00 to the first defendant, the company not being operational, the company is to execute the conveyance of its interest in the property to the two children of the claimant and Ragbir. The claimant and/or her children will be responsible for preparing the conveyance and the costs in relation to it. In the event that the conveyance is not executed within 30 days of being sent to the attorney for the defendants, the Registrar will be authorised to execute the necessary conveyance. 61. The defendants counterclaim is dismissed. 62. The first defendant was legally aided and the second defendant is not operational. In the circumstances there will be no order as to costs. Ronnie Boodoosingh Judge Page 22 of 22