TT envoy succeeds at Privy Council …”I FEEL VINDICATED”

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Thirteen years after he was sued by a landlord, Trinidad and Tobago’s High Commissioner to India, Dave Persad, has been successful before the Judicial Committee of the Privy Council in London.

On Monday, the Law Lords ruled in favour of Persad, against landlord, Anirudh Singh. The court battle started in September 2004.

On Tuesday, the following questions were put to Persad, an attorney-at-law. The following is his response:

Q : How do you feel that the Privy Council has ruled in your favour?

A : Personally, I feel extremely vindicated. I was of the firm view that my integrity was called into question by the judges of both the High Court and Appeal Court. Fortunately , five distinguished law lords in London reversed that. As a lawyer, I  always thought the law was on my side. And as the judgment said, there was absolutely no evidence to support the findings. And I got a lot of support from my attorney and friend , Mr Anthony Manwah. Mr Hari Ramkarran SC of Guyana also supported me.

Q : After losing in the High Court and Court of Appeal, did you feel you could have succeeded at the Privy Council?

A : I was told by many, lawyers included, that if both courts ruled against you, it is difficult and rare for the Privy Council to do otherwise. But I was determined and felt confident that I had a good chance. Had that judgment not been contested and tested by the Privy Council , TT would have changed the essence of Company law as the judges implied. As a lawyer, I saw that.

Q :  Many may say, the sums involved were so meagre, was this about the money or your belief that you were always right?

A : It was not about the money, the initial judgment was small, very small, compared to what it cost me to go to London. It was my integrity at stake and a matter of principle. I decided to stand firm.

Q: What did it cost you to take the matter all the way to London?

A : To approach the Privy Council cost a lot of money. It was at least 10 times what I would have had to pay if I had done so at the High Court stage when I lost there.

Q :  Is Chicken Hawaii still in existence? If not, when did it close?

A : A thriving business was forced to close when the litigation started.

Q : Going to the Privy Council is a costly exercise, how would you advise persons in similar situations, with less finances to seek justice?

A : A real tragedy. Unfortunately , justice is expensive in TT. Mediocrity is the order of the day. Some time ago, a former Chief Justice said ‘ too much water in the brandy’ and people got angry. Today, you lucky if you get brandy in the water.

Specifically, I can really offer no advice to persons who feel aggrieved and cannot afford to go the full length.

Persad ended, “I wish to thank all my colleagues in the profession who supported me, particularly Mr Anthony Manwah, Mr Hafeez Ali, and distinguish Senior Counsel of Guyana, Mr Hari Ramkarran.”

THE CASE

The Privy Council, comprising Lords Neuberger, Kerr, Reed, Hughes, and Hodge, delivered an eight-page judgment.  The judgment was handed down by Lord Neuberger.

The primary issue on this appeal was whether, as the Court of Appeal held, Justice Charmaine Pemberton was entitled to conclude that Persad, was liable to the Singh, for sums due under a lease which Singh had granted to a company called Chicken Hawaii (Trinidad) Ltd.

Singh is the owner of premises consisting of two buildings at ¼ MM Manzanilla Road, Mayaro, Trinidad. In late 2001, when he was about to leave for the United States, Singh told his brother that he was looking for a tenant for the premises. In early 2002, having been told of the premises by Singh’s brother, Persad contacted Singh by telephone to discuss the possibility of taking a lease of the premises. Discussions then took place between the two men and they reached an agreement whereby Persad would take a five-year lease of the premises starting on 1 April 2002, and that Persad, who is a qualified attorney, would draft the lease.

Sometime in March 2002, Singh allowed Persad to occupy the premises in advance of the anticipated grant of the lease. Persad then proceeded to carry out some works of decoration and improvement. Meanwhile, Persad had prepared a form of lease of the premises, which it appeared he negotiated with Singh’s brother.

The draft lease reserved a rent of $4,000 per month for the first two years and $5,000 per month for the last three years, payable monthly in advance. It also contained covenants by the tenant, including a covenant to pay the rent, to keep the premises in repair, to deliver up the premises at the end of the term, and not to commit nuisance.

In addition, the draft lease contained a proviso for forfeiture in the event of the lessee failing to pay the rent or breaching any covenant. The draft lease stated that the lessor was Singh, and, importantly for present purpose, that the lessee was Chicken Hawaii, not Persad.

In about January 2002, a copy of the draft lease executed on behalf of the lessee was sent to Singh in the USA for execution. In the normal way, at the end of the lease it was recorded as executed on behalf of the lessor and the lessee. The lessor was to be Singh with a space left for him to sign. The lessee was recorded as Chicken Hawaii, and it was stated that the seal of Chicken Hawaii had been affixed by Sandra Dass, Company Secretary.

In the space left for execution by the lessee was Dass’ signature under which Chicken Hawaii’s company seal had been affixed. Singh took some time to sign the lease himself, but he did so on 1 May 2002, which is the date on which the lease is recorded as having been executed.

There appears to have been no mention of Chicken Hawaii during the negotiations, which had proceeded on the assumption that Persad would be the lessee. It would seem that the first time that Singh heard that Chicken Hawaii was to be the lessee, indeed the first time he had heard of Chicken Hawaii was when he received the draft lease executed on behalf of company.

However, although he took some time to sign the lease and to send it back, Singh did not challenge or even question the inclusion of the company as the lessee. In his evidence, Singh said that he noticed that Chicken Hawaii had been identified as the lessee and that he appreciated that its status as a limited company meant that it was a separate legal entity from Persad – unsurprisingly as Singh is a qualified MBA.

Following the grant of the lease, a restaurant was run from the majority of the premises, but a part was used by Persad personally as an office, and another part may have been used for residential purposes. The rent was initially paid, albeit not always on time. The evidence established that, on at least two occasions, namely in July and August 2004, the rent was paid by cheques signed by Mr Persad drawn on Chicken Hawaii’s bank account.

Meanwhile, after having received complaints of nuisance, Singh visited the premises in early September 2003 when he observed some disrepair. In April 2004, a notice identifying the items of disrepair and requiring their remedy was served on Chicken Hawaii by Singh’s attorney. (Such a notice is required by section 70(1) of the Conveyancing and Law of Property Act (Chapter 56, No 1) as a preliminary step before a forfeiture can be initiated.)

On 28 September 2004, Singh issued proceedings for possession, arrears of rent amounting to $16,000, damages for breach of covenant, and mesne profits. Both Chicken Hawaii and Persad were named as defendants.

The statement of claim identified the lease as having been made between Singh and Chicken Hawaii, and referred to Persad as a director of the company and “at all material times acting on his own or as the servant and/or agent of Chicken Hawaii”. It referred to “the defendants” as having been in breach of the repairing and nuisance covenants, and stated that Chicken Hawaii was in arrears with the rent. The prayer for relief sought against both defendants possession, arrears of rent, mesne profits, and damages for breach of covenant.

The statement of claim was later amended to record the fact that the premises were vacated during August 2005.

Chicken Hawaii and Persad served a defence and counterclaim. In the defence, the grant of the lease to Chicken Hawaii and the covenants pleaded in the claim were admitted. It was also admitted that Persad is and was “a director and agent” of Chcken Hawaii, but it was denied that he “at all material times acted on his own”. The breaches of covenant alleged by Singh were denied. In its counterclaim, Chicken Hawaii sought damages from Singh for allegedly disrupting its restaurant business carried on at the premises, repayment of a loan, and reimbursement for the cost of some improvements to the premises.

The claim and counterclaim came on for trial before Justice Pemberton, and after hearing witnesses (including Singh and Persad) and legal arguments, she gave judgment on 15 July 2011.

The effect of her decision was that judgment was given against both Chicken Hawaii and Persad for $21,569.69 damages for breach of covenant, for $17,833.33 in respect of arrears of rent, and for mesne profits at $5,000 per month for the period between 11 August 2004 and 18 August 2005, together with interest in each case at the rate of 10% per annum from 18 August 2005 to the date of judgment; and the defendants were ordered to pay $11,673 costs. On the counterclaim, she gave Chicken Hawaii judgment for compensation for improvements, but dismissed the other claims.

Persad appealed to the Court of Appeal (Justices Gregory Smith, Prakash Moosai and Mark Mohammed) against the finding that he was liable to Singh for any of the sums awarded against him, but his appeal was dismissed in a short ex tempore judgment given on 21 May 2014.

Persad then appealed to the Privy Council.

The Law Lords allowed Persad’s appeal, and refused Singh’s application. According to Lord Neuberger, the parties should try and agree on costs and a form of order. “As presently advised, and subject to argument to the contrary from Mr Singh, the Board would be inclined to order Mr Singh to pay Mr Persad his costs of the entire proceedings, but the first instance costs should be limited to the extra costs attributable to Mr Persad’s involvement over and above the costs which were or would have been incurred in connection with the claim against Chicken Hawaii.”
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DAVE PERSAD, RIGHT,  OUTSIDE THE PRIVY COUNCIL WITH HARI RAMKARRAN, SC
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DAVE PERSAD IN INDIA 

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DAVE PERSAD IN HIS OFFICE IN INDIA 

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