THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV2014-03058 BETWEEN RAVI NAGINA SUMATI BAKAY Claimants AND LARRY HAVEN SUSAN RAMLAL HAVEN Defendants Before The Hon. Madam Justice C. Gobin Appearances: Mr. M. Khan for the Claimant Mr. R. Rickhi instructed by Mr. Tacklalsingh for the Defendants REASONS The Issue 1. The factual issue which the Court had to resolve in this case was what were the arrangements between the parties under which Mr. Nagina and Ms. Bakay were put into possession of an HDC house which was owned and/or controlled by Larry and Susan Ramlal Haven. 2. I have noted that the appellants notice of appeal raises issues which were never raised in the statement of issues filed on their behalf on the 15 th May 2015, as to HDC Page 1 of 10
policy on applications for housing. These matters were never considered nor was any evidence led in relation to them. In any case I do not believe that I could have taken judicial notice of the matters now raised. The case for Mr. Nagina and the later Ms. Bakay 3. The respondents Mr. Nagina and Ms. Bakay alleged that (Mrs. Haven) offered to sell them the property for the sum of $325,000.00 to be paid by a deposit of $15,000.00 with the balance to be paid by monthly instalments of $2,000.00 until liquidation of the purchase price. Early in the day, Mr. Nagina and Ms. Bakay recognised the house was part of an HDC development scheme. They said they enquired of Mr. amd Mrs. Haven as to whether they were allowed to sell the property, and they were assured that the appellants had the permission of the HDC so to do. 4. There was no written agreement, but they paid the deposit of $15,000.00 in cash and a receipt was issued by Mrs. Haven. Upon payment they were given the keys to the property and they moved in. Further payments were made by them pursuant to the purchase agreement. Of the purchase price the sum of $139,500.00 was paid into a bank account (and this has not been denied by the appellants). 5. Mr. Nagina and Ms. Bakay alleged that in addition to the bank deposits, from time to time Mr. Haven required further cash payments and they obliged. He issued no receipts even when he was asked to do so. The cash payments allegedly amounted to $32,000.00. 6. At some stage, and it was around the time they began to suspect that all was not well, Mr. Nagina. and Ms. Bakay received correspondence addressed to Mr. and Mrs. Page 2 of 10
Haven from the HDC. They opened it and found it was a notice of arrears. They subsequently, in or about May 2014, visited the HDC s offices. After this visit, and believing that this would secure their position in the property, they made some payments directly into Mr. and Mrs. Haven s HDC account. 7. On Saturday 16 th August 2013, Mr. Nagina and Ms. Bakay were evicted from the house. Mrs. Haven was present on the scene during the operation. She produced a notice of eviction dated 2 nd June 2016 which was addressed to the claimants as occupants of the property. The case of the Havens (Mr. and Mrs. Haven) 8. Mr. and Mrs. Haven at all times denied that they had entered into an agreement for the sale of the property. They claimed that Mr. Nagina and Ms. Bakay told them they were in need of housing accommodation for a period during which a property owned by Ms. Bakay was being renovated. The Haven s entered into the arrangement because Mrs. Haven s father was terminally ill and they had decided to take up residence with him. They denied any discussion or agreement to sell the house. They claimed they allowed Mr. Nagina and Ms. Bakay to occupy for a monthly fee. They specifically denied telling Mr. Nagina and Ms. Bakay that they had the permission of the HDC to sell. 9. They denied the sum of money allegedly paid by Mr. Nagina and Ms. Bakay but accepted that part of what was claimed was in fact paid into Mr. Haven s bank account. They denied payment of a $15,000.00 deposit and went so far as to deny that the signature on the receipt was Mrs. Haven s. Page 3 of 10
The Decision/finding of fact 10. I gave judgment for the claimants because I preferred the evidence of Mr. Nagina and Ms. Bakay as to how they came to be in occupation of the HDC house. I found that they had indeed entered into an agreement with Mr. and Mrs. Haven to purchase the house and that they were told at the time of the agreement that the owners had the permission of the HDC to sell. I found that the claimants paid the sum I found to be $140,000.00 pursuant to the agreement for sale and in reliance on the representation that the HDC property could be sold by Mr. and Mrs. Haven. 11. The case of Mr. Nagina and Ms. Bakay as to the nature of the arrangement was supported by the compelling evidence of Catherine Boodoo, a school teacher who was a friend Ms. Bakay and who, I accept, was well acquainted with the defendants. I found that she was indeed the person who put the parties in contact with each other when Mr. and Mrs. Haven told her they were looking to sell their property. She introduced them. I believe as she said, Mrs Haven had actually asked her, if she was interested in purchasing it herself. 12. When Mr. and Mrs. Haven became aware that Catherine Boodoo had filed a witness statement they sought and leave was granted to file a rebuttal evidence. Both claimed that Catherine Boodoo was a stranger to them. Through a dramatic development, this proved to be untrue. Page 4 of 10
13. During the course of Mrs. Boodoo s cross-examination, and in answer to questions from the Court on matters not raised in her evidence, the witness was consistently impressive. It turned out her relationship with Mrs. Haven was even closer than she had deposed. She knew the name of the Haven s son and the circumstances of them naming him Larsan, a combination of both their Christian names. She had been to Mrs. Haven s father s funeral and other family events. When I asked whether she had any photographs of them, she said she did not, but Mrs. Boodoo produced a package of about 10 postcards, Christmas and birthday cards which she said she received over the years from Mrs. Haven. They were aged and the earliest dated back to the year 1992. The writer signed as your best friend Susan Ramlal Mrs. Haven s maiden name. 14. I was satisfied that these cards were indeed sent by Mrs. Haven, although when she was confronted with them she continued to deny knowing Catherine, or having sent them. A casual comparison of Mrs. Haven s handwriting disclosed several similarities but such a comparison was not even essential. The production of the real evidence which she had just brought along on that morning convinced me that Catherine was an independent witness and a witness of truth. 15. That Mrs. Haven, even in the light of the production of the cards was prepared to continue denying not just her acquaintance with Ms. Boodoo but the extent of the friendship caused me to reject her and her husband s evidence on more material parts. 16. I rejected the Haven s case too, because what was glaring from the defence and indeed the witness statements, was that the monthly fee which they claimed they charged Page 5 of 10
to cover the monthly mortgage under their version of the arrangement, was never identified. 17. That figure would have been a fundamental feature of the arrangement. In its absence, Mr. and Mrs. Haven were hard pressed to explain the variation in the sums paid by Mr. Nagina and Ms. Bakay. On a balance of probabilities it was easier to accept that the moneys were in fact payments towards a purchase price. 18. Mr. and Mrs. Haven failed even to identify the monthly mortgage that they were paying to the HDC. The only document produced quite unintentionally, it seems to me, was a receipt which showed that what they were being charged by the HDC was the sum of $1300.00 and it was described as a license to occupy payment. This raised questions about what indeed was their status regarding the property with the HDC. 19. Further, Mr. and Mrs Haven in suggesting that I should reject the other side s case as to the purchase price of $325,000.00 under the alleged agreement, produced a letter from their alleged financiers, TTMF to the HDC. It showed that the couple could have conditionally qualified for financing to the tune of $408,000.00. This was hardly the best evidence to support a claim as to the purchase price or the value, but they introduced it to support an argument that given that figure, the case that the purchase price was $325,000.00 should be rejected. I was not impressed. 20. The defendants must have had an agreement with the HDC which clearly indicated what price they were to pay for the property at the time they took possession and what were the terms of that agreement. Their failure to disclose evidence on such an important issue Page 6 of 10
which, must have been available impressed me even less. Production of what might have been the figure available to them by way of a loan from a financier did not settle that question. 21. The defendants case that they entered into the arrangement because of the illness of Mrs. Haven s father, too, was not proved. The production of an MRI report dated 30 th September 2013 was of limited assistance. This was more than two years after Mr. Nagina and Ms. Bakay had entered into possession of the subject property. It gave no indication of the history of Mr. Ramlal s illness and when specifically, he fell seriously ill. On a balance of probabilities I found that their giving up possession of the property had less to do with his illness, than with their desire to sell, as Catherine Boodoo had been told by them. Damages/The issue 22. On the 26 th November 2015 at the close of the evidence, I indicated to the parties that I preferred the evidence of the claimants and invited submissions on the issue of damages. There was no dispute that under the arrangement, whatever it was, the claimants had paid the sum of $118,000.00 in respect of which amount there was independent or documentary proof of payment. 23. The defendants asked me to reject the claim for a further $22,000.00. Part of this sum was the alleged deposit of $15,000.00. Ms. Haven denied the signature on the receipt. Further they urged that I should reject the allegation of payment of the further sum of $7,000.00 in the absence of receipts. Page 7 of 10
24. The Havens reminded that in the defence they had indicated they disputed the receipt and signature and that they were prepared to submit to a forensic examination. In his closing submissions, Counsel has asked me to consider that, as a factor in determining the credibility Mrs. Haven in relation to the receipt. I was also asked to note that nothing on the face of the receipt for the alleged deposit refers to the alleged agreement for sale. I was asked to reject the claimants evidence that further cash was paid even after there were complaints about Mr. Haven s refusal to issue a receipt on a previous occasion. This according to the defendants, was less than credible. 25. I have already indicated my general assessment of the credibility of the respective parties in this case. I repeat I preferred the evidence of Mr. Nagina and Ms. Bakay. That Mr. and Mrs. Haven would deny a close friendship with someone I accept was in fact at some point a best friend of the wife, led me to believe they would not hesitate to deny a signature if it suited them. The signature on postcards received from Mrs. Haven by Catherine Boodoo was similarly denied. 26. I therefore accepted that the dispute sum of $22,000.00 was in fact paid. Mr. Nagina and Ms. Bakay may have been somewhat naïve in their dealings with the defendant but that does not affect their credibility on this issue. In my experience people foolishly part with money when they trust the people with whom they are dealing. In this case Catherine Boodoo whom I assess to be an honest, decent and loyal woman was a mutual friend. This connection may have influenced the level of trust that Mr. Nagina and Ms. Bakay reposed in the Haven s. Page 8 of 10
Assessments 27. As for the quantum of damages generally, having read the authorities I accepted the claimants submission that damages should be assessed applying the reliance interest measure. The claimants paid the sum of $140,000.00 to the defendants. They did so expecting to complete a purchase for what they thought was the defendant s property. They moved into occupation and enjoyed the benefit of a home for 40 months. Any award of damages had to take that factor into account. 28. How was the value of the benefit they got, to be assessed. The defendant suggested $2000.00 per month on the basis of the receipts which showed what monthly sums were paid to the HDC by the claimants but I reject this. My rejection follows too from the failure of the defendants to produce any document indicating what was their mortgage payment if there was indeed a concluded mortgage arrangement. The only reliable and independent evidence of what was a fair license fee for occupation is reflected on the HDC receipt date dated 4 th August 2014 in the sum of $1300.00. I therefore calculated the value of benefit by multiplying that occupation fee of 1300 x 40 months and deducted it from the sum which I found had been paid to Mr. and Mrs. H under the agreement for sale that is $140,000.00 - $52,000.00. 29. In the circumstances I made the order (a) Judgment for the claimants vs the defendants in the sum of $88,200.00 together with interest at the rate of 5% per annum from 25the August 2014 to 21 st January 2016. (b) The defendants to pay the claimants prescribed costs of the action. Page 9 of 10
(c) The defendants to pay the claimants costs of the injunction assessed in the sum of $5,000.00. Dated this 8 th day of April 2016 CAROL GOBIN JUDGE Page 10 of 10