Appeal Court sets aside High Court orders in Maracas, St Joseph land dispute

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Justice of Appeal Nolan Bereaux -

A legal wrangle over the payment for land between the widow of a St Joseph property owner and his business partner has been determined in the latter’s favour.

In a ruling on October 30, Justices of Appeal Nolan Bereaux, Peter Rajkumar and Maria Wilson allowed Dave Nurse's appeal against a judge’s ruling in favour of Sylvie Ramroopsingh, the widow of Meethoolal Ramroopsingh and administrator of his estate.

Sylvie sued Nurse after she was sued by three purchasers of plots of her late husband’s 2.4 hectares of land in Maracas, St Joseph.

Nurse was ordered to pay Sylvie the $502,000 he received from the sale. Justice Devindra Rampersad also declared that Nurse breached an agency agreement with Meethoolal.

He also upheld the claim against Sylvie.

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Nurse appealed the judge’s order to pay over, but Sylvie did not.

In their ruling, the Appeal Court judges set aside Rampersad’s orders on Sylvie’s ancillary claim against Nurse and dismissed it. They also ordered her to pay Nurse’s costs of the appeal and two-thirds of his costs in the High Court.

In her defence of the lawsuit against her, Sylvie denied knowing of the failure to convey the lots they bought to them, since her late husband had excluded her from his financial and property dealings.

She also claimed she only found out about the agency agreement between Nurse and Meethoolal after she was sued, and argued since Nurse, her late husband’s friend, also had a power of attorney when he fell ill, in 2011, he should have been suedand not her.

“That contention is, of course, misconceived because she is joined as Methoolal’s personal representative and not in her personal capacity,” Bereaux said.

In her claim against Nurse, she alleged he fraudulently retained the money he received under the agency agreement and power of attorney. She also contended that he was only authorised to receive money for the sale of the land specified in the agency agreement and develop the lots, but not subdivide them or sell them.

Justice of Appeal Peter Rajkumar -

In his evidence, Nurse said Meethoolal, his business partner in a real-estate venture, orally agreed to have the lots of land subdivided and sold at $70,000 each, with 90 per cent going to Meethoolal, seven to the maintenance of the lands and three to Nurse.

Nurse said 11 lots were sold and Meethoolal, who received the money in cash, kept $693,000.

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Bereaux, who wrote the Appeal Court’s ruling, said, “I consider that the judge was plainly wrong.

“He failed properly to analyse the evidence, misconstrued where the burden of proof lay and failed, disproportionately, to weigh in the balance the inherent probabilities which lent credibility to Nurse’s account while accepting Sylvie’s evidence without considering the improbabilities which undermined her evidence.

“He also failed to have proper regard to the documentary evidence which lent support to Nurse’s evidence as well as evidence which effectively corroborated Nurse’s contention that he handed over monies from the sales of the subdivided parcels to Meethoolal.”

Bereaux also noted that an appellate court did not usually review the evidence in a case unless it could be shown the first-instance judge was plainly wrong.

However, he said, after examining the evidence of the witnesses, “The judge misconstrued the evidence and was plainly wrong. His conclusion cannot be supported.”

He said because Rampersad took a “one-sided approach” to the evidence “and committed multiple errors,” the Appeal Court was entitled to look at the matter afresh and come to its own conclusions.

RULING SET ASIDE: Justice Devindra Rampersad -

One of these conclusions was that Sylvie “failed to discharge her burden of proof” and was not entitled to judgment.

“The evidence of the appellant was far more credible. The appeal must be allowed.”

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Bereaux also held that Rampersad “approached the case from the wrong perspective.”

“It was for Sylvie to prove that money had been received by Nurse, that he did not pay them over and that this was a breach of contract or was fraudulent.

Justice of Appeal Maria Wilson -

“Once she had discharged that burden, it would then fall to Nurse to show that the money was paid over.

“The judge’s approach to the evidence was disproportionate. He approached the appellant’s evidence with some suspicion or scepticism but there was no similar approach in regard to Sylvie when similar suspicion or scepticism was required.”

He also said, “Perhaps as a corollary of his misunderstanding of the burden of proof, the trial judge fixated on what he perceived were shortcomings in the appellant’s case.”

Bereaux also held that Rampersad’s assessment of the parties’ credibility was also flawed and that the judge misplaced his focus when assessing the evidence, as Nurse’s defence was not included in the pleadings.

“The pleadings set up facts and issues that are in dispute which were then fleshed out in the witness statements, by which fulsome evidence to support the facts is provided.”

He also found Sylvie’s credibility was undermined by her claim she knew nothing of the land sales, but after being sued, she contended she did not know about her late husband’s business affairs.

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“This conflict reflects of one self-serving constant: Sylvie’s efforts to avoid liability. “

Attorneys Farai Hove Masaisai and Jennifer Farah Tull represented Nurse. Ganesh Saroop and Witney St Clair represented Sylvie.