Bankers Insurance Company of Trinidad and Tobago Ltd v Bankers Property Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | Mr Justice Frank Seepersad |
| Judgment Date | 08 June 2021 |
| Neutral Citation | TT 2021 HC 135 |
| Docket Number | Claim No. CV 2019-01349 |
| Court | High Court (Trinidad and Tobago) |
IN THE HIGH COURT OF JUSTICE
the Honourable Mr Justice Frank Seepersad
Claim No. CV 2019-01349
1. Mr Douglas Mendes S.C. instructed by Mr Jerome Rajcoomar for the Claimant.
2. Mr Kiel Taklalsingh and Mr Vivek Lakhan-Joseph instructed by Parisa Ramsahai for the 1 st, 2 nd, 3 rd, 5 th, 6 th, 7 th, 8 th Defendants.
This claim requires the Court to determine whether ownership and possession of a commercial building situate at 177 Tragarete Road Woodbrook (the building) should vest with the Claimant or whether the Second and/or Third named Defendants should be entitled to the building primarily because it forms part of the Amar family legacy and is held by the Claimant on trust for them.
The Claimant is an insurance company governed by the provisions the Insurance Act Chap 84:01. The First Defendant is a duly incorporated company which is owned/controlled by the Second Defendant and it leased a portion of the building to the Eighth Defendant. The Second Defendant is a businessman and until 2018 was one of the Claimant's Directors. The Second Defendant is the principal shareholder of the Third, Sixth and Seventh named Defendants and he and his wife trade as the Fifth Defendant. The Fourth named Defendant occupies a portion of the building with the Second Defendant's permission.
The companies Aurora Investments (1996) Ltd (Aurora) and Amar Holdings Limited (Amar Holdings) though not named as parties in the instant case, feature prominently in critical aspects of this case and these companies were/are owned by the Amar family and/or the Second Defendant.
The multimillion dollar building (valued at $8,000,000.00 as at 2008) is situate upon lands vested in the Mayor, Aldermen, Councillors and Citizens of the city of Port of Spain (the City) and straddles plots initially known as 144 Roberts Street, 16A Pole Carew Street and 177 Tragarete Road (the lands).
Amar Holdings held leases from the City over the lands and by deed dated 13th December 1990, it transferred all its interest in the lands and building to the Claimant (the Deed). At the material time the Second Defendant controlled the majority shareholding interest in the Claimant company. The said transfer was by of way of an exchange and the Claimant transferred its freehold interest in a property situated at 31 Long Circular Road St James to Amar Holdings.
In 1998 pursuant to its statutory fund reserve obligations under the Insurance Act Chap. 84:01, the Claimant assigned its interest in the building to be held on trust but continued to occupy a portion of the building.
On the 21st of June 2000, the city reassigned and renamed the lands as 177 Tragarete Road (the land). At the time of this redesignation the leasehold interest formerly held by Amar Holdings in relation to the lands had expired but on or about the 28th of August 2000 the City granted to the Claimant a new 30-year lease over the land upon which the building stands.
In 2002 the Hindu Credit Union (HCU) became the Claimant's majority shareholder (the HCU sale).
The Claimant claims ownership and possession of the building and holds a leasehold interest in the land. Pursuant to section 37 of the Insurance Act Chap. 84:01 it outlined that it elected to place its interest in the building “in trust” so as to maintain its statutory fund obligations. This interest was assigned to the trustee who holds same for the statutory purpose of ensuring that policyholder liabilities are addressed in the event of a liquidation. Although the building remains in the statutory fund, the beneficial ownership of same vests with the Claimant and the Claimant asserts that it can replace this asset in the trust by substituting another suitable asset. The Claimant also claims that once its legal estate and beneficial ownership in the building and land is declared it should be able to recover mesne profits from the Defendants.
These Defendants' claim to the building is primarily premised upon four principal contentions, namely:
-
a) That at the time the Deed was executed there existed an understanding and/or common intention and/ or unanimity of purpose among all of the Claimant's shareholders that the building was to be held on trust for and Amar family (the trust). These Defendants also contend that the sale of the majority of the Claimant's shares to the HCU in September 2002 expressly excluded the interest in the building and it was agreed that the building was to be held by the Claimant on trust for the second defendant and or his designee(s) (the September trust). They further assert that by application of the principle of law known as the Duomatic principle as outlined in the case of Re Duomatic Ltd [1969] 2 Ch. 365, the Court should order that any failure with respect to formality, form or process engaged with respect to the creation of the September trust should not be used to deny the bona fide decision of all the shareholders/ members of the Claimant, to create same.
-
b) Alternatively the Claimant is debarred by the principle of laches from pursuing any claim to enforce its proprietary interest
-
c) Alternatively the doctrine of proprietary estoppel bars the Claimant from enforcing any proprietary interest over the building.
-
d) Alternatively the Claimant's title, estate and interest in the building stands extinguished by virtue of the doctrine of adverse possession pursuant to the provisions of the Real Property Limitation Act.
These Defendants simply relied upon their tenancy arrangements with the First, Second and Third Defendants.
The Court heard evidence from the Claimant's witnesses namely, Chantal Gittens, Richard Gittens, Dave Rampersad and Balchan Ramsumair. The following witnesses testified on behalf of the Defendants namely, Robert Amar, Anthony Charran, Gawtam Ramnanan and Hasmean Ramsahai.
The fundamental issues to be determined are as follows:
-
a) Whether there existed an understanding and/or common intention and/ or unanimity of purpose when the Deed was effected that the building was to remain on trust as part of the Amar Family legacy.
-
b) Whether there was an agreement on or about September 18 2002 (the September Agreement) to create the September trust.
-
c) Whether the Court should apply the Duomatic principle and order that, any failure with respect to formality, form or process engaged in relation to the September Agreement and the September trust, should not be used to deny the bona fide decision of all the shareholders/ members of the Claimant, to create the September trust.
-
d) Whether the Claimant is debarred by laches from pursuing any claim to enforce its proprietary interest over the building.
-
e) Whether the doctrine of proprietary estoppel bars the Claimant from enforcing any proprietary interest over the building.
-
f) Whether the Claimant's title, estate and interest to the building stands extinguished by virtue of the doctrine of adverse possession pursuant to the provisions of the Real Property Limitation Act Chap 56.03.
-
g) Whether the Claimant is entitled to mesne profits in the event that that it is entitled to possession of the building.
At paragraph 7 of his witness statement, Robert Amar alleged as follows:
“As part of my development of the said business, I transferred two properties owned by the Amar Family to Bankers Insurance which was to be held on trust for the Amar Family. At this time, it was not problematic as I was the principal and majority shareholder of Bankers Insurance and in this regard, I had effective control of both Companies. There were no trust documents to this effect as I said before, the subject property was still with a Company which was owned and controlled essentially by me (being Bankers Insurance). The said two properties which were placed in the name of Bankers Insurance were the Tragarete Road property and another property known as the Victoria Square Property. This is so as Bankers Insurance required that assets be placed on its financials in order for same to be used in the Statutory Reserves for the viability of its operations. To be clear, the said properties were only to be utilised for the purpose of the Statutory Reserves and once the Company was able to sustain itself, my intention was that the properties be re-transferred to the Amar Family.”
Mr Amar was challenged on this evidence and he was referred to the Deed. The witness was taken through the recitals and schedules to the deed which showed that the city had granted leasehold interests in each of the parcels as follows:
-
a) 144 Roberts Street – A lease for the term of 25 years from 1st July 1971.
-
b) 16A Pole Carew Street – A lease for the term of 25 years from 1st January 1966.
-
c) 177 Tragarete Road — A lease for the term of 25 years from 1st October 1944.
The witness confirmed that at the time the Deed was executed, Amar Holdings was possessed of an unexpired leasehold interest of just over 5 years over 144 Roberts Street, an unexpired leasehold interest of 18 days over 16A Pole Carew Street and the leasehold interest over 177 Tragarete Road had expired.
Mr Amar was also shown the habendum of the Deed which showed that the Claimant had exchanged its freehold interest in a property situate at 31 Long Circular Road, St James for...
To continue reading
Request your trial