Auto sales dealer Rose Ramdehol has been ordered by the Caribbean Court of Justice (CCJ) to pay her former husband, Haimwant Ramdehol US$262,500 following a dispute dating back to 2010 on what had been agreed as part of their divorce.
Delivering its ruling yesterday, the CCJ again lamented delays in the Guyana court system. Rose Ramdehol lost her case at the High Court, the Guyana Court of Appeal and the CCJ.
According to the summary of the decision, the Ramdehols were formerly husband and wife and partners in a successful auto sales business in Guyana. Their marriage ended in 1998 but it was only in 2007 that they agreed to negotiate a division of their matrimonial and business properties.
The CCJ said that correspondence passed between their attorneys and, according to Mr. Ramdehol, pursuant to a “without prejudice” letter, dated 12th September 2007, the parties agreed, inter alia, that Mrs. Ramdehol would pay him the sum of US$262,500 ($54m) as a final settlement after each had transferred their respective half share and interest in certain properties to the other.
In January 2010, Mr Ramdehol approached the High Court for specific performance of the September 2007 agreement. He argued that he had fulfilled his obligations under the agreement and Mrs Ramdehol had not paid him the agreed US$262,500. He said that the only money he received from her were repayments for a loan to her as well as the proceeds of the sale of a Titan Nissan car which he had asked her to dispose of for him.
The CCJ said that Mrs. Ramdehol contended that there could have been no agreement in September 2007 as their attorneys’ correspondence was “without prejudice” and no formal agreement had been drawn up and signed by the parties. She further argued that she had no knowledge of the letters sent by her former attorney as she had terminated his services; moreover, the 12th September letter relied on by Mr. Ramdehol was not authored by the attorney whom she had retained but rather by one of his partners.
The CCJ further noted that Mrs. Ramdehol also gave evidence in her witness statement that before and during the time the parties had been negotiating in 2007, Mr. Ramdehol was abusive towards her and that it was in this “confused state of mind of undue influence and pressure” that she negotiated with him. However, the CCJ said that no arguments for undue influence were submitted by counsel on her behalf at trial or on appeal to the Guyana Court of Appeal.
Mrs. Ramdehol further contended that after the 12th September 2007 correspondence, she and Mr. Ramdehol had renegotiated the agreement upon his request. She, however, could not supply a date at which this renegotiated agreement was concluded and there was also no correspondence between the attorneys detailing the terms of the purported renegotiated agreement. She submitted a letter dated January 22, 2010 written by a new attorney she retained for these proceedings and who had written to Mr. Ramdehol’s attorney disputing the obligation to pay the US$262,500. In that letter, the new attorney set out the alleged terms of the renegotiated agreement and said that Mr. Ramdehol would only be paid 25 million Guyanese dollars and that she had paid him in excess of this sum. She also denied that the payments she made to him were for a repayment of a loan or for the sale of a Titan Nissan car. However, the CCJ said that she did admit to borrowing 4 million Guyanese dollars from him and that at Mr. Ramdehol’s request, she bought the Nissan Titan motor vehicle from him for GY$3,600,000.
On June 11, 2012, the CCJ said that Justice Rishi Persaud found in favour of Mr. Ramdehol in the case that he had brought in January, 2010. The judge was of the view that although the letters were expressed to be “without prejudice”, this did not prevent Mr. Ramdehol from relying on them to prove that the parties had arrived at an agreement. The CCJ said that he also found that: (a) there was ‘a clear and concluded agreement with referable acts of part performance’ by Mr. Ramdehol; (b) there was no renegotiations between the parties and that it was ‘unbelievable’ that the parties privately renegotiated the agreement despite letters being exchanged between counsel. Further, the CCJ said that the judge found it curious that Mrs. Ramdehol submitted on the one hand that the parties did not arrive at an agreement in September 2007 (she had no knowledge of the letters being sent) and on the other hand argued that the agreement was renegotiated.
On the July 23, 2012 appeal to the Court of Appeal, the Court of Appeal said that it found no grounds on which it should disturb Justice Persaud’s findings. That panel comprised former Chancellor of the Judiciary, Carl Singh, current acting Chancellor, Yonette Cummings-Edwards and Justice Brassington Reynolds. The Court of Appeal delivered its judgment on February 21, 2017. The case had been stymied for some time due to interlocutory proceedings relating to a stay of execution of the High Court judgment.
The CCJ in its decision said that Mrs. Ramdehol’s appeal to it raised three primary issues, whether: (a) the “without prejudice” letter could be presented as evidence of a concluded contract between the parties; (b) the finding that monies paid by the appellant and received by the respondent were in pursuance to the property settlement agreement between the parties; and (c) any contractual agreement between the parties ought to reflect the application of the practice and statute as it related to matrimonial property.
On the first issue, the CCJ’s view was that “without prejudice” communications are generally privileged communication but said that there were exceptions to this general rule as rightly pointed out by Justice Persaud and the Court of Appeal. The CCJ found that in this case it was possible for Mr. Ramdehol to rely on the letters to show that either an agreement had been arrived at “or that he conducted himself (to his detriment) based on clear statements made by or on the appellant’s behalf such that the appellant should be bound by those statements.”
The CCJ said that it adopted the position taken in Western Broadcasting Commission v Edward Seaga that even if the court finds that the parties had agreed only to some specified terms based on evidence submitted in ‘without prejudice’ correspondence, that agreement could be binding and enforceable, particularly, if it contained sufficiently certain terms. The Court therefore held that the agreement between the Ramdehols was sufficiently certain and therefore binding and enforceable.
The CCJ further found that there was nothing to suggest that the attorney-client retainer was specifically between Mrs. Ramdehol and her former attorney Mr. Moen Mc Doom Jnr and not between her and Mr. Mc Doom’s firm. Therefore, the CCJ held that Mr. McDoom’s partner (who happened to be his father and a Senior Counsel) had implied authority to send correspondence on behalf of Mrs. Ramdehol to Mr. Ramdehol’s then attorney who was Khemraj Ramjattan. In any event, the Court found that the obligation on Mrs. Ramdehol to pay the sum specified in a letter dated
August 31, 2007 written by Mr. Mc Doom Jnr was not substantially different from that specified in the 12th September letter written by Mr. Mc Doom SC.
The CCJ further said that even if Mrs. Ramdehol was unaware of the letters being sent on her behalf by her former attorney, this did not prevent the correspondence from creating a binding agreement between the parties.
In relation to the second issue, the CCJ said that unlike the Privy Council’s strict method, it has opted for a more flexible approach. Even so, it was only in exceptional circumstances that the Court would review concurrent findings of fact of the courts below. These include cases where the Court was satisfied that there was a miscarriage of justice; the reasons of the lower courts are not satisfactory; there is a lack of clarity; conflicting findings of fact or there is a lack of any evidential basis for the findings.
“The Court did not find that this was an exceptional case and therefore upheld the findings of the courts below that the parties had arrived at a concluded agreement represented in the letter of 12th September 2007 and that there had been no renegotiation of that agreement”, the CCJ said.
In relation to the third issue, the CCJ emphasised that the critical consideration is that where provision for dependent minor children is not in issue, the Married Persons (Property) Act Cap 45:04 gives the parties complete autonomy to settle the division of their matrimonial property amongst themselves by contract. Accordingly, unless Mrs Ramdehol could show that the agreement was in breach of general contract principles the agreement must be enforced.
In relation to counsel’s Submissions in Reply that Mrs. Ramdehol acted under undue influence, the CCJ held that it would not interfere with the contract between the parties on this basis as Mrs. Ramdehol did not specifically plead undue influence in the proceedings below and there was a lack of substantive evidence to prove this claim before the CCJ.
“The Court therefore upheld the concurrent findings of the lower courts that the agreement made on 12th September 2007 was binding on the parties and ordered that Mrs. Ramdehol pay the sum of US$262,500 to Mr. Ramdehol, less monies already paid in fulfilment of Justice Persaud’s order”, the CCJ said.
The CCJ then commented upon the delay in disposing of the case as it has in other cases from Guyana before it. It said that such delays are inconsistent with the overriding objective expressed in the new civil procedure rules of Guyana. It noted further that the effect of a delay of almost eight years in disposing of this matter must be assessed by looking at the possible deterioration of the paying party’s circumstances, making it more difficult to comply with the court order than it would have been eight years ago; and on the other hand, the extent to which the circumstances of the party to be paid have suffered by the absence of the settlement fund over these years.
“The Court hoped that the Guyanese judiciary would take advantage of the opportunities in the new rules to negate the recurrence of this type of delay”, the CCJ said.
Mrs Ramdehol was represented by Sanjeev Datadin and Jamela Ali while Mr Ramdehol was represented by Chandrapratesh Satram, Roopnarine Satram and Shaunella Glen.