Court of Appeal rules for executor in battle of brothers for Shanta’s Restaurant

A Court of Appeal decision delivered last month has upheld a High Court ruling that the present occupant of the building housing the popular Shanta’s Restaurant has no legal authority to do so.

Following the death of businesswoman, Parbati Persaud aka Parbatti Persaud, her two sons became locked in a legal battle to gain control of the property. Premdaat Persaud had taken over the business, claiming that the property was sold to him prior to his mother’s death. However his brother Deodat Persaud who was named the executor of the woman’s estate had argued that there was no evidence to support such a claim and had asked him his to vacate the property. The business has been a part of Guyana’s culinary history, since the 1960’s.

The Court of Appeal after hearing all arguments in the matter dismissed the appeal filed by Premdaat and his son Mikail and affirmed the March 20, 2011 decision of High Court judge Rishi Persaud. The court also awarded costs in the sum of $200, 000 to Deodat.

The case was heard by appellate judges Chancellor (ag) Yonette Cummings-Edwards, Arif Bulkan and Rafiq Khan SC.

The appellants who are listed as the plaintiffs in the High Court proceedings had made a claim against Deodat for a specific performance of an agreement of sale and purchase made and entered into on 8th February, 2001. That agreement the claim stated was between the plaintiffs and Parbattie Persaud, the deceased vendor and owner of the property.

A copy of the alleged agreement of sale and purchase was included in the statement of claim. It stated that the plaintiffs paid $8M for the property, they would immediately gain possession on signing the agreement and that the transport would be passed within four months of the signing.

The plaintiffs claimed that while the conveyance was duly filed on May 28, 2003 the businesswoman died in England on July 27, 2003 before the transport was conveyed in their names.

The woman left a will which was duly probated on January 7, 2004 in England by one of two executors named under the Last Will and Testament.

Deodat, it was stated was one of two executors of the Will and he applied for resealing of the grant of probate in his mother’s estate which was obtained on November 23rd, 2009. As a result of this development his attorney Randolph Eleazar caused a notice to be sent to the first named plaintiff informing him of the grant of probate.

In the letter, the attorney stated that prior to the businesswoman’s death and thereafter Premdaat and his family had been the sole occupant of the premises, living thereon and operating her business to the exclusion of his client and everyone else.

It stated that based on two paragraphs in the deceased’s will, the trustees, now only Deodat Persaud, “is to call in and convert into money i.e. to sell the residue of her estate”. The residue the letter said includes the property located at 225 Camp and New Market Streets, its furnishings, fittings and business accessories. The proceeds of that sale, the letter said, were to be divided equally among the woman’s five children, inclusive of the first named plaintiff, Deodat and the woman’s stepson Toolsie Persaud.

Aside from being given a deadline to “call in” the assets of the estate, Premdaat was given two months’ notice to vacate the property, failing which legal proceedings would be instituted and an injunction sought to prevent the continuation of the business.

Deodat in his defence  dated June 11, 2010 contended that the agreement of purchase and sale produced by the plaintiffs is a forgery. He also denied every allegation of fact made by the plaintiffs. In his counterclaim, he asked for possession of the property, a mandatory injunction restraining the plaintiffs from continuing to operate the restaurant, am audited account of their dealings and intromissions with the business as from July 27, 2003 and damages in excess of $1M.

Bound to fail

After reviewing submission, the Trial Judge felt that the Appellants claim for specific performance was bound to fail, for on the face of it the Appellant’s case consisted of several material contradictions and inconsistencies. On the basis of these contradictions he concluded that the Appellant’s case was conflicted, inconsistent, untruthful and wholly unbelievable and accordingly dismissed the claim for specific performance without considering the Respondent’s defence.

In their Notice of appeal the appellants had argued that the decision of the Trial Judge was unreasonable and could not be supported by the evidence; the Trial Judge made findings of fact not disclosed in the evidence; the decision could not be supported having regard to the nature and quality of the evidence of the Appellants and the law relating to specific performance; the decision was bad in law and against the weight of the evidence and the Trial Judge failed to consider, evaluate and put in legal perspective the evidence of the Appellants and their witnesses.

The court later decided that the issues it would determine were whether the Trial Judge based his ultimate decision on a reasonable evaluation of the evidence led on behalf of the appellants; whether the court can properly interfere with his findings; whether there was any finding by the trial judge that the agreements were forgeries; whether sections 31 and 32 of the evidence act had the effect of validating the agreements of sale and whether the agreements of sale could be treated as counterparts.

The counsel for the Appellants sought to make a distinction between inferences and findings of facts by the Trial Judge but the Court of Appeal found that these arguments were overly legalistic and technical.

The Court said that based on the legal authorities and the evidence before them, there was no reason to interfere with the Trial Judge’s findings that the evidence was manifestly inconsistent, conflicting, untruthful and not credible.

The Court stated that that by itself should dispose of the appeal but expressed a desire to deal with other points raised by counsel for the appellant.

The Court of Appeal held that the Trial Judge made no finding that the agreements were forged.

Counsel for the Appellants during the hearing of the case had sought to argue that Sections 24(12), 31 and 32 of the Evidence Act, that the signature of the notary witnessing the signature of Parbati on the agreements imbued them with validity and put them beyond doubt and that the learned trial judge therefore misdirected himself on his assessment of the agreement’s credibility and reliability in declining to make an order for specific performance for the agreement.

The court of appeal disagreed with counsel’s interpretation of the evidence act and held that the quoted sections do not support the arguments put forward.

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