Raymond and Pierre Ltd and Ors. v HCU Communications Ltd and Hernarine
| Jurisdiction | Trinidad & Tobago |
| Judge | Charles, J. |
| Judgment Date | 03 May 2010 |
| Neutral Citation | TT 2010 HC 126 |
| Docket Number | 1064 of 2009 |
| Court | High Court (Trinidad and Tobago) |
| Date | 03 May 2010 |
High Court
Charles, J.
1064 of 2009
Mr. Seenath Jairam S.C., Mr. Anil V. Maraj instructed by Mrs. Theresa Hadad-Maraj for the claimant.
Mr. Farid Scoon instructed by Dr. Wesley Debideen for the defendant.
Contract - Agency — Supposed agent for judgment creditor purported to settle the entire debt — Judgment creditors filed Bankruptcy Notice which was filed as affidavit and not a petition — Finding that there was no actual or ostensible authority on the part of the 2 nd Judgment creditor to act on behalf of the 1 st Judgment creditor — No authority on the part of the supposed agent to act on behalf of judgment creditors or to compromise the entire judgment debt — Bankruptcy.
In CV 2006-02964 a Claim Form and Statement of Case was filed by the first and second Judgment Creditors against the first and second Judgment Debtors, HCU Communications Limited and Harry Harnarine respectively, for damages for libel and slander published by the first and second Judgment Debtors. The Claim Form and Statement of Case were filed on October 4, 2006 by Mr. Rishi P. Dass, attorney at law for the first and second Judgment Creditors, with Senior Counsel, Mr. Seenath Jairam and junior counsel Mr. Dharmendra Punwasee listed as senior and junior advocate attorneys respectively for the Claimants. No defence was entered and the first and second Judgment Creditors obtained judgment in default against the first and second Judgment Debtors.
The first and second Judgment Creditors' damages were assessed by Master Doyle, who on the 23rd July 2008 ordered that the “Defendants pay the claimants the sum of $971,217.37 being damages in the sum of $800,000.00 being damages of $400,000.00 for each claimant, disbursements in the sum of $484.00 and interest in the sum of $170,733.37 being interest on the sum awarded of $800,484.00 at the rate of 12% per annum from the date of service of the Claim Form and Statement of Case on the 12th October 2006 to today's date, and costs in the sum of $64,104.60 pursuant to Appendix C of Part 67 of the Civil Proceedings Rules 1998”.
On the 23rd July 2008 Master Doyle also made orders in respect of two other applications filed by the first and second Judgment Debtors in these proceedings. The first order related to the first and second Judgment Debtors' Notice of Application filed on the 27th May 2008 in which Master Doyle ordered that the first and second Judgment Debtors “pay the claimants' Costs assessed in the amount of $2,500.00”. The second order related to the first and second Judgment Debtors' Notice of Application filed on the 10th July 2008 in which Master Doyle ordered that the first and second Judgment Debtors “pay the claimants' costs assessed in the sum of $90,142.50 together with Value Added Tax on the sum of $45,000.00 awarded in respect of Senior Counsel's fees herein”.
The judgments were not satisfied.
The second Judgment Creditor filed a change of attorney on January 23, 2009.
On the 26th January 2009 the second Judgment Creditor requested the issue of a Writ of Fi Fa against the first Judgment Debtor, HCU Communications Limited, and the same was issued on the 26th January 2009 on the first Judgment Debtor for the sum of $425,126.20 inclusive of fees and attorney's costs on issue. On the 27th January 2009 the levy was carried out by Mr. Martin Carasquero, an Assistant Marshal. Mr. Carasquero was accompanied by others, including Mr. Selwyn Mark, who was hired by the second Judgment Creditor to point out the levy.
Mr. Mark in his affidavit (Affidavit of Selwyn Mark dated and filed on the 28th September, 2009.) stated that he first met with Mr. Hansley Adjoda, and after a short while Mr. Harry Harnarine, who initially told him that the assets were in the hands of the liquidators and that they could not levy. Mr. Mark stated that he did not have any discussions with Rishi Jamunar, Nadira Seecharan or Sheikh Shandur, and that he definitely did not have any discussions about the settlement of the entire judgment debt as stated by Mr. Rishi Jamunar in his affidavit (Affidavit of Rishi Jamunar dated and filed on the 16th April, 2009). Mr. Mark never represented that he was the agent of Mr. Afra Raymond save and except for the limited purpose of pointing out the levy and to collect the amounts due only to Mr. Afra Raymond.
Mr. Harry Harnarine in his affidavit (Affidavit of Harry Harnarine dated and filed on the 16th April, 2009) admitted to having asked Mr. Mark to allow him to have a separate discussion with Mr. Rishi Jamunar and Mr. Sheik Shaadur. He said at paragraph 4(x) that “He obliged and a separate discussion ensued. I asked Mr. Rishi Jamunar and Mr. Sheik Shadadur whether they would be able to assist by making a loan of $425,126.20 to HCU Communications Limited. After much deliberation, Mr. Rishi Jamunar agreed that he would make the loan available (Para. 4(x) ibid). This is in sharp contradiction to paragraph 6 of the affidavit of Mr. Rishi Jamunar where he states that “There was a discussion among Mr. Harry Harnarine, Mrs. Nadira Seecharan, Mr. Sheik Shahadur, Mr. Selwyn Mark and myself, with the Marshal of the High Court sifting as an observer. This discussion centered upon a compromise and full and final settlement of the entire judgment debt in claim no. CV2006-02964.” (Para. 6 of the Affidavit of Rishi Jamunar dated and filed on the 16th April, 2009.)
Both Mr. Harnarine and Mr. Jamunar in their respective affidavits claimed that Mr. Mark agreed that he would accept the sum of $425,126.20 as payment in full satisfaction of all debts owing to Raymond and Pierre Limited and Afra Raymond. Mr. Mark completely denied this in his affidavit (Para. 16 of Selwyn Mark's affidavit, n.1 above). What is interesting is that at paragraph 4(vii) of Mr. Harnarine's affidavit he quotes the wording of the Writ of Execution, the second paragraph, which reads: “TAKE NOTICE that Selwyn Mark of 23 Boundary Road Extension, San Juan, agent of the 2nd claimant/2nd Judgment Creditor will point out the levy.”
The Assistant Marshal took possession of the first Judgment Debtor's chattels and gave the first Judgment Debtor the opportunity to settle the debt, fees, costs of the levy and other incidental expenses. Subsequently he released the same after two certified cheques were tendered by one Mr. Basdeo Jamunar the first in the amount of $425,126.00 payable to Alves, Clarke & Co., attorneys for the second Claimant alone, and the second in the amount of $30,000.00 payable to Mr. Selwyn Mark, the agent of the second claimant, for the costs of the levy.
Two receipts were signed by Mr. Mark acknowledging receipt of the above-mentioned amounts. The first Receipt said “RECEIPT Received from HCU Communications Ltd. and Harry Harnarine of HCU Financial Complex, No. 40 Main Road, Chaguanas the sum of Thirty Thousand Dollars ($30,000) in full and final payment and satisfaction of costs pursuant to the judgment debt in Claim No. CV2006-02964 and in recognition of the said payment hereby forever releases the said HCU Communications Limited and Harry Harnarine from any further liabilities for costs under the said High Court Action, Claim No. CV2006-02964. Payment in Cash: $30,000.00. Received Selwyn Mark 19630312072. Selwyn Mark Agent 27/January/2009.”
The second Receipt said “RECEIPT Received from HCU Communications Ltd. and Harry Harnarine of HCU Financial Complex, No. 40 Main Road, Chaguanas the sum of Four Hundred and Twenty Five Thousand One Hundred and Twenty Six Dollars and twenty cents ($425,126.20) in full and final payment and satisfaction of the Judgment Debt in Claim No. CV2006-02964 and in recognition of the said payment hereby forever releases the said HCU Communications Limited and Harry Harnarine from any further liabilities for costs under the said High Court Action, Claim No. CV2006-02964. Payment made by Scotiabank, Bank Draft No. 058048 dated January 27, 2009. Received for and on behalf of Alves Clarke and Co. Attorneys at Law, 97-99 Edward Street, Port of Spain. Selwyn Mark 19630312072. Selwyn Mark Agent Date January 27, 2009.
Mr. Mark agreed in his affidavit to having gone with Mr. Basdeo Jamunar to his bankers in San Juan to get the cheque. They stopped first at International Carpeting Ltd. where he was introduced to Mr. Rishi Jamunar's father, Mr. Basdeo Jamunar. He then accompanied Mr. Basdeo Jamunar to Scotiabank in San Juan. He was handed a certified cheque in the sum of $425,126.20 and returned to International Carpeting Ltd. and thereafter was carried back to HCU's compound by Mr. Rishi Jamunar.
He deposed that upon his return he indicated that he had obtained the cheque for the amount noted on the levy documents and that he was ready to leave. Mr. Harnarine asked him for a receipt and he said that he had his receipt book in his car, which he was going to get. Mr. Mark denied that he had asked Mr. Harnarine to prepare a receipt for his signature (Para.19, ibid). Mr. Harnarine stated in his affidavit that he had reminded Mr. Mark that he had agreed to accept the $425,126. 20 in full satisfaction of the Order as payment to Raymond & Pierre Limited and Afra Raymond by the first and second Judgment Debtors. He also stated that he had asked his attorney, Dr. Debideen to make up the receipt. Mr. Harnarine, instructed Dr. Debideen as to the wording of the contents of the receipts, which he claimed were agreed to by Mr. Mark (Para. 4(xv) of Harry Harnarine's affidavit, n.3 above). This is a direct contradiction to Mr. Jamunar's affidavit at paragraph 10 in which he said that a receipt was issued by Mr. Selwyn Mark as agent for Alves, Clarke and Company for the sum of $425,126.20 from HCU Communications and Harry Harnarine in full and final payment and satisfaction of the...
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