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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Dass v Marchand & Ors (Trinidad and Tobago) [2021] UKPC 2 (14 January 2021) URL: http://www.bailii.org/uk/cases/UKPC/2021/2.html Cite as: [2021] 1 P & CR DG21, [2021] 1 WLR 1788, [2021] UKPC 2, [2021] WLR 1788 |
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Hilary Term
[2021] UKPC 2
Privy Council Appeal No 0038 of 2019
JUDGMENT
Dass (Appellant) v Marchand and others (Respondents) (Trinidad and Tobago)
From the Court of Appeal of the Republic of Trinidad and Tobago |
before
Lord Reed Lord Hodge Lady Black Lord Burrows Lord Hughes
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JUDGMENT GIVEN ON |
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14 January 2021 |
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Heard on 1 December 2020 |
Appellant |
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Respondents |
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Anand Beharrylal QC |
Rowan Pennington-Benton |
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Zeik Ashraph |
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Krishendath Neebar |
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Haresh Ramnath |
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Simeon Wallis |
(Instructed by BDB Pitmans LLP (London)) |
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(Instructed by Alvin Pariagsingh (Trinidad)) |
LORD BURROWS:
1. Introduction
2. The judgment of Rampersad J
“128. Which version is more probable? That the first named claimant wanted to sell the premises in which she was living to raise money to repay an unspecified loan for the settlement of a case which was not put to the claimants in cross examination? Or that the first named defendant, the first named claimant’s employer and doctor, being aware of the death of the first named claimant’s mother and her mental state, came up with a ploy to get the premises from her after she refused to accept his offer to purchase the premises?
129. To my mind, the latter version, in light of all of the circumstances of the case and the evidence led, seems to be the more probable explanation for the sale.”
Rampersad J added the following in para 131.4:
“Dr Dass and [Rosemarie] Marchand went to the office of Victor Hosein where she was informed of a mortgage on the premises. It is inconceivable that [Rosemarie Marchand] would make up such detailed facts to the same and it seems the only logical explanation for the agreement to give up the premises in circumstances where the claimants were not of any substantial means and there was no definite plan for their relocation.”
And at para 132, Rampersad J concluded:
“The court finds that, on the balance of probabilities, the claimants were in fact tricked into conveying their premises to the first named defendant.”
(i) Rosemarie Marchand was an employee of Dr Dass on 26 June 2006 when the deed of conveyance was signed; and she was also a patient of Dr Dass at that time.
(ii) “The claimant was a person with a history of mental issues including mental retardation and depression and was prone to forgetfulness and bad judgment” (para 131.3).
(iii) Dr Dass had informed Nicolas and Naomi Marchand about the sale of the property when he summoned them to his office on a day when their mother had collapsed at work.
(iv) The claimants attended the office of Victor Hosein on 26 June 2006 after being dropped off by Dr Dass. They each went in to see Victor Hosein separately and “each signed a document showing only the attestation clause in relation to them alone, individually” (para 131.7).
(v) The deed of conveyance could not have been in the form in which it was signed by the claimants on 26 June 2006 because the schedule to the deed referred to the surveyor drawing up the relevant plan of the property on 6 July 2006; and there was no evidence whatsoever of the claimants authorising any alteration of the deed (paras 117.20 - 117.21).
(vi) Rosemarie and Naomi Marchand were evicted from the property (para 131.8). (According to the claimants, this was in August 2006 (para 8).)
(vii) The claimants did not sign alleged written instructions (ie the signatures were forgeries) dated 26 June 2006 in relation to advice allegedly given by Victor Hosein (para 131.10). At para 117.17 Rampersad J had earlier said, in relation to this document:
“[T]he court is of the view, on a balance of probabilities, that the claimants did not in fact sign this document and … it was a manufactured document of convenience to assist the case for the defendants.”
3. The judgment of the Court of Appeal
(i) That Rampersad J was plainly wrong to find that Dr Dass had wrongfully or unlawfully procured the 26 June 2006 conveyance from Rosemarie Marchand and her children.
(ii) That Rampersad J ought to have determined the nature of the agreement between Rosemarie Marchand and Primchan Rambeharry and its effect, if any, on the outcome of the litigation before him. In particular, it was alleged that that agreement was champertous and illegal.
“In keeping with the well stated remit of a court of appeal especially when issues of credibility of witnesses fall to be considered, and upon consideration of the totality of the facts and evidence led and tested in this case and upon the application of the relevant legal principles, I agree with the trial judge that the deed of conveyance made on 26 June 2006, between the parties should be set aside and the property be returned to [Rosemarie Marchand] and her children.”
At para 41 Pemberton JA said the following:
“The trial judge acknowledged [Rosemarie Marchand’s] inconsistent evidence and evasive behaviour on the witness stand. He also made a study of [Dr Dass’s] testimony both evidence in chief and cross examination. The trial judge determined on the balance that [Rosemarie Marchand] gave a more probable account of the events leading up to her and her children’s signature on the 26 June 2006 deed. He came to his decision on the evidence as a whole. I do not find that there was any misunderstanding of the evidence on his part.”
The same conclusions were then specifically repeated in respect of first, the trickery and fraud inducing the deed of conveyance: “I can find no fault with that finding … this finding is borne out by the evidence and is unassailable” (paras 50-51). And, secondly, in relation to undue influence: “the trial judge correctly analysed the evidence, found the facts and applied the law in the area to the facts as found … the finding that the 2006 deed … ought to be set aside [for undue influence] is correct and will not be disturbed” (para 53).
4. The appellant’s submissions to the Board
12. On behalf of Dr Dass, Thomas Roe QC essentially confined his submissions to the first of the two grounds of appeal referred to by the Court of Appeal ie no submission was made as to the agreement between Rosemarie Marchand and Primchan Rambeharry being champertous. Mr Roe put forward three main points to support his overarching submission that Rampersad J had plainly gone wrong in relation to the evidence and facts. First, the claims of trickery and undue influence rested on extraordinary allegations of dishonesty against two professional men, a doctor and a lawyer, who had no apparent motive (because they were not making any financial gain from the purchase of the property) and the claims were contradicted by the contemporaneous documents. The more improbable the event the stronger the evidence must be and the evidence here fell short of meeting that standard. The second point was that Rampersad J had ignored the fact that the claimants had been making an inconsistent claim (which he rejected) that there had been a breach by Dr Dass of an agreement to sell the property for $600,000. The third point was that greater prominence should have been given by Rampersad J to the funding agreement between Rosemarie Marchand and Primchan Rambeharry. This was because this agreement provided a financial motive for Rosemarie Marchand to seek to set aside the conveyance and to give false evidence. Moreover, her evidence in relation to that agreement (eg her denial that the funding agreement produced at trial was the version she had signed) undermined her credibility.
5. The reasoning of the Board as to why the appeal should be dismissed
15. The first is that, in accordance with the Board’s normal practice, we do not think it appropriate to go behind the concurrent findings of fact of the two lower courts (ie the facts which Rampersad J found proven and on which his findings were upheld by the Court of Appeal). For that practice of the Board see, for example, Srimati Bibhabati Devi v Kumar Ramendra Narayan Roy [1946] AC 508; Central Bank of Ecuador v Conticorp SA [2015] UKPC 11; [2016] 1 BCLC 26, para 4; Juman v Attorney General of Trinidad and Tobago [2017] UKPC 3, para 15; Al Sadik v Investcorp Bank BSC [2018] UKPC 15, paras 43-44.
18. The second reason is that, even if the Board were applying the standard constraints of an appeal court (and for those standard constraints, see, for example, Central Bank of Ecuador v Conticorp SA [2015] UKPC 11; [2016] 1 BCLC 26, paras 5-8; and Beacon Insurance Co Ltd v Maharaj Bookstore Ltd [2014] UKPC 21, paras 11-18), we agree with the Court of Appeal that there is no reason to doubt the findings and decision of Rampersad J. His judgment was thorough and clear and involved a careful analysis of all the evidence, including the contemporaneous documentary evidence. As regards Mr Roe’s first point (see para 12 above) there is no reason to think that the judge did not have in mind that, very obviously, the reputations of two professional men were here being besmirched and that very serious allegations were being made of a dishonest conspiracy between them. As regards the second point made by Mr Roe, Rampersad J precisely did refer to the alleged funding agreement between Rosemarie Marchand and Primchan Rambeharry in the context of deciding its effect on the credibility of the former (see para 6 above). Rampersad J was in the best place to judge the credibility of the witnesses and there is nothing to indicate that he made errors in doing so. As for Mr Roe’s third point, the alleged inconsistency between claims, it is of course commonplace, as Mr Roe accepted, for a party to plead inconsistent claims in the alternative. But in terms of this going to the credibility of Rosemarie Marchand, which was the thrust of Mr Roe’s submission, Rampersad J expressly stated, at para 90, that there was “no evidence from the claimants that any agreement was ever reached in respect of the offer which was made for $600,000 and a life interest”. In other words, although that offer had been made by Dr Dass, the evidence of Rosemarie Marchand was that she had rejected it. That was entirely consistent with her evidence as to being tricked into signing the deed of conveyance. Rampersad J’s acceptance of her evidence on that put an end to the claim for breach of contract.
6. Conclusion