REPUBLIC OF TRINIDAD AND TOBAGO CV2008-00349 IN THE HIGH COURT OF JUSTICE BETWEEN VICARDO GONSALVES CLAIMANT AND CHAN PERSAD DEFENDANT BEFORE THE HON. MADAME JUSTICE JOAN CHARLES Appearances: For the Claimant: For the Defendant: Mr. H. Ramnath Mr. R. Gosine Date of Delivery: 28 th November, 2011 REASONS BACKGROUND [1] This is a claim for a sum of money advanced by the Claimant to the Defendant to execute construction works on the latter s home. Page 1 of 17
o THE CLAIM [2] In 2006, the Claimant, at the request of the Defendant, loaned and/or paid on behalf of the latter bills amounting to $186,700.00. The Claimant paid the said monies to the Defendant by way of cheques made in favour of her builder, Mr. Khemchan Girdharie, and to various hardware stores and/or contractors as she requested. [3] By a Promissory Note, dated the 28 th August, 2006, the Defendant agreed to repay the sum of $186,700.00 on or before 25 th December, 2007. [4] In addition to the above monies, the Claimant loaned the Defendant the followings sums: i. $43,000.00 towards the cost of labour for the said construction; and, ii. $18,375.54 towards the cost of materials for the said construction. [5] During the year 2006, the Claimant paid bills and/or the Defendant s workers in the sum of $248,075.54 on behalf of the Defendant. The Claimant pleaded that the Defendant is therefore liable to repay the said sum to him together with interest at 5% per month from January 2008 until payment. [6] Further and/or in the alternative, the Claimant contended that pursuant to the terms of the Promissory Note aforesaid, the Defendant also agreed that in default of payment of the said sums, the properties described in the Certificate of Title Volume 1646, Folio 353 and Certificate of Title in Volume 1982, Folio Page 2 of 17
399 would be sold and proceeds of such sale would be applied to the outstanding sums owed the Claimant by the Defendant. [7] By an agreement made on the 1 st November, 2006, the Defendant agreed to lease to the Claimant, the ground level apartment in her apartment building situate at Tabaquite, Rio Claro Road, Rio Claro Junction for a period of three (3) years at a monthly rental of $2,500.00. [8] During the period of November 2006 to January 2008, the Claimant defaulted in the payment of rent for said ground floor apartment and became indebted to the Defendant in the sum of $42,500.00. However, he settled all outstanding rent by paying to the Defendant the sum of $57,500.00, an overpayment of $15,000.00. [9] The Claimant has alleged that the sum of $15,000.00 was not refunded to him by the Defendant; as a result she was also indebted to him for that sum. [10] Thereafter, on or about the 14 th January 2008, the Claimant made a verbal request to the Defendant that she repay to him the aforesaid sums due and owing. The Defendant, in breach of the lease agreement between the parties, then gave notice to the Claimant to vacate the tenanted premises by the end of March, 2008. [11] The Claimant owns and operates a bar on the tenanted premises which makes a profit of approximately $10,000.00 per month. The purported termination of the lease is likely to cause the Claimant to lose $190,000.00. Page 3 of 17
[12] As a result of the foregoing, the Claimant instituted these proceedings on the 31 st January 2008 seeking the following reliefs: i. The sum of $248,075.54 with interest at the rate of 5% per month from January 2008 until payment; ii. A declaration that the Claimant is entitled to occupy the tenanted premises until October 2009; iii. An injunction restraining the Defendant, her servants and/or agents from removing, disturbing, harassing or interfering with the Claimant s occupation of the tenanted premises; iv. Alternatively to (ii) and (iii), an order that the Defendant do pay to the Claimant the following: a. $15,000.00 as over-payment of rent; b. $190,000.00 as profits made by the Claimant from April 2008 to October 2009. v. Costs. [13] At the trial of this matter, the Claimant abandoned the reliefs set out at (ii), (iii) and (iv). The Claim is therefore only in respect of the sum of $248,075.54 with interest thereon at the rate of 5% per month from January 2008 until payment and costs. o THE DEFENCE [14] The Defendant contended that she shared a very close relationship with the Claimant and she trusted him as her own son. In support of this, she pleaded the following Particulars: Page 4 of 17
i. She was a seamstress and had known the Claimant s parents. ii. She returned to Trinidad in 1984 and opened a sewing business at the subject premises - No. 1317 Tabaquite Road. iii. The Claimant used to sell oranges. During the period 1984 1981, the Claimant brought oranges to the Defendant s place for her to purchase. iv. The Claimant would spend time with the Defendant at her business place and expressed an interest in sewing. v. In 1991, the Defendant opened a bar at the subject premises. Sometimes, on mornings and busy days the Claimant would come in the bar and assist the Defendant. In addition, the Claimant did errands for her. vi. The Defendant has one daughter who lives in Canada and started to treat the Claimant as her son and he, as a mother. vii. In 1999, the Defendant wanted to close the bar she operated as it had become very difficult for her to manage. The Claimant offered to run it at a rental of $800.00 per week. The Defendant accepted and the Claimant commenced running the Bar. viii. From 1999 to present, the Defendant spent, on average, six weeks each year out of the country. During this time, the Claimant stayed at the Defendant s house during her absence. Even after he got married, The Claimant and his family stayed in the Defendant s house for this period. ix. In particular, in October 2007 the Claimant, together with his wife, stayed in the Defendant s house while she was abroad. The Page 5 of 17
Defendant left her keys and the control of her premises to the Claimant. [15] In 2006, the Defendant started to extend the back of her house. The Claimant agreed to assist her with the errands. She Defendant hired a builder, Khemchan Girdharie, to execute the building works. [16] When material was needed by the builder, the Defendant would telephone Ramkission s Hardware on High Street, Rio Claro and place an order. On most occasions the Defendant would give the money to the Claimant to pay for purchases at the hardware store. [17] The Defendant had significant cash flow as a result of her ongoing business ventures, rental income from several apartments, income as a seamstress, as well as a sou-sou; her sister in Canada sent her money from time to time. [18] The Claimant encouraged the Defendant to give him the monies to bank in his account and in turn would use his credit card to effect the purchases. The Claimant explained to the Defendant that payment in this manner would allow him to accumulate bonus points on his credit card. [19] As a result, all monies allegedly spent by the Claimant on the extension of the Defendant s house actually belonged to the latter. [20] The Defendant denied signing a Promissory Note with the Claimant to repay the sum of $186,700.00 and contended as follows: Page 6 of 17
i. It is not her handwriting or signature that appears on the document adduced by the Claimant; ii. On the 17 th March, 2007, the Defendant received her Certificate of Title from the Bank so as to execute a transaction. The Claimant requested the Defendant to make copies of the said Certificate. She acquiesced to this before returning the document to the bank; iii. The copies of the said Certificate were left in the Defendant s house; iv. In early April, 2007, the Defendant s passport and copies of the said Certificate went missing. They were later found by the Defendant in her kitchen; v. At all times the Claimant and his wife had full access to the Defendant s house and her personal belongings. The Claimant knew where everything, including important documents, were located. [21] The Defendant denied borrowing the following sums from the Claimant: i. $43,000.00 for labour costs; and, ii. $18,375.54 for building material. She asserted that all costs associated with the extension works carried out on her building were paid by her. [22] The Defendant admitted that she entered into the rental agreement dated the 1 st November, 2006 to lease ALL that premises being the Road Level Apartment of Building situate at Tabaquite Rio Claro Road, Rio Claro Junction to the Claimant. However, after signing the agreement, it was orally agreed that the Claimant would also occupy the area behind the Defendant s Page 7 of 17
kitchen and a corridor to place his stocks. As a result, a further $1,900.00 was added to the rent. The monthly rental was then $4,400.00 and therefore there was no excess payment of rent as alleged. [23] The Defendant contended that the Claimant never paid rent from his pockets. He was in charge of the sou-sou and whenever it was his turn to draw from it, he would pay the rent for several months at once. Consequently, rent was paid sometimes once in three months. [24] The Defendant denied that the Claimant requested repayment of the sums allegedly owed on or about the 14 th January, 2008. o THE REPLY TO THE DEFENCE [25] The Claimant admitted that he had a good business relationship with the Defendant but that one of mother and son did not exist. He denied selling oranges and stated that he learnt to sew at the Youth Training and Employment Partnership Program (YTEPP). [26] The Claimant denied that he would stay in her home while she was away visiting her daughter. He stated that he would often times stay in a kitchen behind the bar for security purposes but contended that this was not a part of her home. [27] In response to the Particulars relied upon by the Defendant in her Defence, the Claimant stated as follows: Page 8 of 17
i. The Defendant requested from one Mala, a friend of hers, a loan of $70,000.00 which Mala was unable to lend her as Mala s brother-in-law was buying a backhoe. The Defendant therefore requested the Claimant to assist her as her sister was coming from abroad and she wanted to complete the extension of her house; ii. The Defendant agreed that the Claimant would purchase all the building material with his credit card and in his name and use the Defendant s address for delivery. iii. The Defendant, upon repaying the Claimant, would then receive the bills; iv. He never banked any monies for the Defendant as she banked her monies in Canada; and, v. He had lent Defendant monies on previous occasions which she has since repaid. [28] The Claimant insisted that the Defendant signed and dated the promissory note of 28 th August 2006. However, he acknowledged that he wrote it. [29] He contended that the Defendant never misplaced her passport or deeds and that he had no reason to request to make copies of her documents. [30] The Claimant denied that there was ever any agreement to increase the rent and that he had always occupied the area leased and continued to do. Page 9 of 17
SUMMARY [31] The Claimant s case is that he had a business relationship with the Defendant, as he was once her tenant for a number of years. While still renting from the Defendant, the Claimant sought to build his own house. Around this time, the Defendant commenced extending her house. The Defendant requested that the Claimant lend her monies to carry out the extension works. The Claimant agreed to do so and the Defendant signed a promissory note in his favour to repay the sum of $186,700.00 on or before the 25 th December 2007. The Defendant has since failed and/or neglected to repay the said sum. As a result, this action was instituted on the 31 st January 2008. [32] The Defendant s case is that she shared a close relationship with the Claimant and considered him her son. She contended that she never requested to borrow or borrowed any monies from the Claimant for the extension of her house. She sought the Defendant s assistance, being an elderly woman, in the execution of the construction works by giving him monies to, inter alia, buy material and pay the workmen. She denied signing a Promissory Note in favour of the Claimant and stated that the note produced by him was a forged document. ISSUE [33] The issue to be determined by the Court is whether the Claimant loaned monies to the Defendant for the extension of her building. Page 10 of 17
ANALYSIS [34] This issue is one of fact to be decided upon the evidence presented to the Court. [35] It should be noted at the outset that the amount which was stated in the alleged agreement was significantly less that the final sum claimed by the Claimant. o NATURE OF RELATIONSHIP [36] The Claimant testified that he knew the Defendant for a number of years but that they did not share a relationship of mother and son. It was merely a business relationship. He used to purchase buttons from her shop and later rented premises from her. [37] On the other hand, the Defendant contended that she knew the Claimant since his birth as the Claimant s father attended primary school with her and thereafter remained close friends. When the Defendant returned to Trinidad in 1984, her relationship with the Claimant grew and he would often times have meals with her and assisted in running her bar without compensation. [38] In 1999, the Defendant decided to close her bar as it was becoming too tiring for her to operate the business alone. The Claimant offered to run it. The Defendant acquiesced although it was a family business started by her father in 1949. She stated that she did this because she considered the Claimant her son and she trusted him. Page 11 of 17
[39] In further support of her close relationship with the Claimant, the Defendant stated that she made annual trips to Canada to visit her daughter where she would stay for at least six (6) weeks. During this time, the Claimant would stay at her home. When the Claimant got married in 2003, his wife and son would also stay in the Defendant s home while she was away. [40] The Claimant also pleaded that he would stay at the Defendant s home when she was abroad. However, he later denied this in cross-examination. When Counsel for the Defendant pointed out this inconsistency to him, he responded that what was pleaded in his reply was an error. He further stated in cross-examination that were was no need for him to stay at the Defendant s home as there were other tenants residing there. [41] I accepted the testimony of the Defendant to that of the Claimant regarding the close nature of their relationship. The Claimant actually pleaded in his reply that he, his wife and son would often stay at the Defendant s home when she was abroad. The nature of the relationship between the parties was a central issue in the determination of this matter. If assertions on this issue were made in error, as contended by the Claimant, there should have been an Application to Amend the Statement of Case. However, this was never done. o SOURCE OF INCOME [42] At the time of the extension of her building, the Defendant was in receipt of income from several different sources, namely: i. Rent from her ten (10) tenants which totalled $10,450.00 each month; Page 12 of 17
ii. iii. iv. Earnings as a seamstress in the sum of approximately $2,500.00 a month; The sum of $8,000.00 every two months from sou-sou ; and, Frequent monetary gifts from her sister, who had a half-share in the property where the Defendant resided. [43] The foregoing facts were not contested by the Claimant. He agreed that when he met the Defendant she was a seamstress and that he purchased buttons from her shop. I also noted from the evidence that the Claimant was the person who managed the sou-sou from which the Defendant derived her earnings; as such he was in a position to state whether she exaggerated the said earnings. However, he did not challenge any aspect of this evidence. [44] The Claimant raised the issue of proof of income stating that the Defendant did not have a bank account in Trinidad & Tobago. The Defendant admitted same in her Witness Statement, stating that during the years 2000-2007 all her transactions were done with cash. I did not consider this a relevant issue; wherever the Defendant kept her monies was immaterial as it was already established that she had multiple sources of income to facilitate the construction works on her house. [45] In the circumstances, I accepted the evidence of the Defendant to that of the Claimant on this issue. It was clear that the Defendant was in a financial position to personally fund the extension works on her house without assistance. Page 13 of 17
o PROMISSORY NOTE [46] The Claimant relied on a promissory note as evidence of the Defendant acknowledging her debt to him and which, he stated, was signed by the Defendant. The Defendant filed a Notice to Prove Documents dated 9 th November, 2009, pursuant to PART 28.18 1 of the CIVIL PROCEEDINGS RULES 1998, challenging the authenticity of this document and required that the Claimant prove same. The burden of proof was on the Claimant to prove the authenticity of this note. However, there was no evidence called in support of his contention regarding that the signature thereon purporting to be that of the Defendant was in fact hers. [48] In McQueen v Great Western Railway Company 2, the court held: If a prima facie case if made out, capable of being displaced, and if the party against whom it is established might by calling particular witnesses and producing particular evidence displace that prima facie case, and he omits to adduce that evidence, then the inference fairly arises, as a matter of legal presumption, that the absence of that evidence is to be accounted for by the fact that even if it were adduced, it would not displace the prima facie case Further, Ian Sieunarine v Doc. s Engineering Works (1992) Limited 3, Rajnauth-Lee J. opined: 1 Notice to prove document 2 (1875) L.R. 10 Q.B. 569, p. 574 3 H.C.A No. 2387/2000 Page 14 of 17
In the absence of the witness the Court is entitled to infer that the defendant has chosen to withhold evidence which should have either supported the plaintiff s case or at the very least would not have displace the prima facie case. The Claimant, in order to discharge the burden of proving that the Defendant did in fact sign the Promissory Note should have adduced evidence of a handwriting expert or any other evidence capable of proving the issue on a balance of probabilities. This he has not done. In the circumstances, applying the case of Mc Queen and Ian Sieunarine above I hold that the Promissory Note was not executed by the Defendant. As such she incurred no liability to the Claimant by reason of same. o THE LOAN [49] The Defendant stated that because she shared a close relationship with the Claimant she sought his assistance when extending her building. At the time, she was sixty-five (65) years old and infirmed. She suffered from high blood pressure, diabetes and experienced frequent fainting spells. In addition, she did not have access to a vehicle so it was difficult to move around to source building material for the extension. [50] The Defendant asserted that this assistance she sought from the Claimant was not in the form of a loan. Instead, she asked the Claimant to purchase building material for her when he was doing the same for himself, as he was also building his house. The Defendant would often give the Claimant monies to purchase the material or permit him to place same on his credit card to make Page 15 of 17
the purchases thereby obtaining bonus points. This, she asserted, was the reason why some receipts were not in her name but that of the Claimant. [51] In support of this contention, the Defendant annexed to her Witness Statement a letter from B. Ramkissoon Hardware Ltd., the store where she purchased most of her construction material. The Manager of the store, Ms. Baby Ramkissoon, stated in the letter that the Defendant would occasionally come personally to purchase building material. However, it was more common for the Defendant to call the store and indicate that she was sending either the Claimant or someone else to purchase building material on her behalf. Ms. Ramkissoon highlighted that although the Defendant would point out that she was sending cash to make the payment, the Claimant always used his credit card to make the purchases. [52] Based on the forgoing, I considered that this letter substantiated the Defendant s contentions that: i. She made all the payments towards the cost of the building material for the extension to her house; ii. iii. Some receipts were not in her name but that of the Claimant because he made purchases on her behalf; and, Reinforced her assertion that there was a close relationship between herself and the Claimant to the extent that she trusted him to effect business transactions on her behalf. CONCLUSION Page 16 of 17
[53] Having heard and seen the evidence presented by both parties, I accepted the evidence of the Defendant to that of the Claimant and dismissed the Claim. I ordered: i. Judgment for the Defendant against the Claimant; ii. The Claimant to pay the Defendant s costs in this action, to be assessed in default of agreement. JOAN CHARLES JUDGE Page 17 of 17