Qualander v Bacchus
| Jurisdiction | Guyana |
| Judge | Nareshwar Harnanan |
| Judgment Date | 18 August 2017 |
| Neutral Citation | GY 2017 HC 3 |
| Docket Number | 2011 NO. 192/S DEMERARA |
| Court | High Court (Guyana) |
| Date | 18 August 2017 |
IN THE HIGH COURT OF THE SUPREME COURT OF JUDICATURE
CIVIL JURISDICTION
Hon. Mr. Justice Nareshwar Harnanan
2011 NO. 192/S DEMERARA
Mr. Moen McDoom Jr. — Plaintiff
Mr. Nigel Hughes — Defendant
Property law - Possession of property — Whether the defendant was a tenant — Whether the plaintiff is entitled to possession of the premises in the circumstances — License agreement — Nature of a license — Test for determining whether a lease or a license has been granted — Credibility of evidence — Tenancy relationship — Use of premises — Wood and Leadbitter 13 M&W 838 — Daly v. Edwardes (1900) 83 LT 548 — Isaac v. Hotel de Paris Ltd. [1960] 1 W.L.R. 239.
) The plaintiff seeks possession of premises described as a part/portion of the ground floor/lower flat of eastern portion of lot numbered 25 Water Street, Newtown, Georgetown, known as Swiss House Cambio, and occupied by the defendant, and any other person claiming possession or occupation through the defendant.
) The plaintiff is now the sole owner of property by transport no. 1193 of 1993, applying the doctrine of survivorship, her sister, and joint-owner having died in April 2010.
) The plaintiff claims that the defendant has breached the terms and conditions of a licence agreement he entered into on the 16 th July 2007 with her sister Seeta Ramroop, which was to facilitate the repayment of a debt owed to her by the estate of Farouk Razac in the sum of $49,177,000.00. The defendant purported to represent the estate of Farouk Razac as executor.
) The licence purports to have conditions for the repayment with staggered payments of different sums by specified dates, until the debt was completely liquidated.
) The purported consideration pursuant to the aforesaid licence was that the defendant was permitted to occupy that portion of the ground floor at 25 Water Street, known as ‘Swiss House Cambio’, if the defendant carried out the payments as agreed upon in the conditions of the licence, failing which, immediate vacant possession was to be granted to Seeta Ramroop.
) The plaintiff claims that the defendant breached a licence to occupy the said premises which she terminated, and demanded vacant possession thereof, which the defendant has refused to vacate.
) The defendant denies that the plaintiff is entitled to possession of the premises on a number of grounds:
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• That during the lifetime of Farouk Razac, he was a tenant of Seeta Ramroop and operated a Cambio there since 1989 — the consideration being the provision of USD$10,000.00 per day by the defendant and Farouk Razac to the plaintiff and Seeta Ramroop. Later in his evidence he said it was USD$6,000.00 per day.
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• After the death of Farouk Razac in 2007, Seeta Ramroop and others padlocked the Cambio and prevented the defendant from accessing the premises unless he paid the debt of Farouk Razac in the sum of $49,177,000.00.
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• Defendant claimed he was desperate after a few months, felt threatened and afraid and therefore attended the chambers of the plaintiff's attorney-at-law Mr Robin Hunte, where he was provided with a back page of a document to sign his name.
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• He contended that he was led to believe that the document contained the same terms and conditions of the lease between Farouk Razac and Seeta Ramroop to which he signed under that misrepresentation, and duress.
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• He contended he was never given a copy of the agreement and commenced occupation of the premises paying to the plaintiff several lumpsums of money towards reducing the debt of the estate of Farouk Razac until the 16 th April 2011 when the plaintiff refused to accept any further payment.
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• That it was not until when possession was demanded, he became aware of the other pages of the document he signed the back page to, that it was changed from a lease to a licence, which he never agreed to.
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• That the change in status of the quality of the estate's occupation was obtained by fraud and duress.
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• The defendant therefore is claiming that the licence is null and void and that he is a tenant in occupation of the premises in issue.
) The plaintiff denies the existence of a tenancy from the time Farouk Razac occupied it and contends that it was the defendant who approached Seeta Ramroop acknowledging the debt of the estate of Farouk Razac and undertook to make the repayments if he was granted a licence to occupy the premises and operate the Cambio until such time that the debt was repaid.
) The plaintiff further denies that there was any threats, duress or coercion causing the defendant to enter into the licence agreement, that he went freely and voluntarily, where he refused his own counsel as he said it was a simple document. He executed and initialled same after reading it in its entirety. The plaintiff therefore claims possession from the defendant.
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• Whether the defendant was a tenant?
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• Whether the plaintiff is entitled to possession of the premises in the circumstances before the court?
) The court must satisfy itself that it has the jurisdiction to entertain the claim for possession in the circumstances, having regard to the claim by the defendant that the quality of the relationship between the parties was one of landlord and tenant. The evidence before the court is clear. The defendant claims he is a tenant, whilst the plaintiff claims he is a licensee. There is no documentary evidence of a tenancy, but there is documentary evidence of a licence to the defendant to occupy the premises, on conditions.
) When the defendant gave evidence, he stated that he and Farouk Razac were partners in the Cambio business when it started in 1990. This was the first time the issue of partnership with Farouk Razac was raised by the defendant. In his affidavit and statement of defence and counterclaim, there is no reference to a partnership agreement, nor is there any reference to the defendant's stake in the business of the Farouk Razac, other than his claim to be the executor of the estate of Farouk Razac. In fact, the defendant stated that Farouk Razac operated the Cambio since 1989 whilst his father Hassan Razac operated a watch repair business since the late 1970's. He also accepted in his evidence that the business is registered as F&F Foreign Exchange Cambio and that he wouldn't be surprised that Farouk Razac brother's name, which is Fazeel Razac, is on that business registration and that the latter was the only business partner of Farouk Razac. He also conceded that his name was never added to the business registration.
) Whilst he pleaded and testified to a tenancy between Farouk Razac, himself and Seeta Ramroop, there was no real evidence presented to the court suggesting a tenancy arrangement. Reference to the provision of United States Dollars (USD) at cost price as the consideration of the alleged tenancy also was unsubstantiated. Extracts from exercise-book leaf sheets with what appeared to be various money transactions (EXHs E and F — bundles) does not support the contention of the defendant that there was a tenancy arrangement between Farouk Razac, himself and Seeta Ramroop, which he was led to believe continued after the death of Farouk Razac, and even after the death of Seeta Ramroop in April 2010.
) The demeanour of the defendant under cross examination also suggested that he was not being forthright with the court on the issue of the tenancy. While his pleadings suggested that he was forced, threatened and/or coerced into signing a back page of a document which he says he was led to believe constituted a continuation of a tenancy agreement, he was not very sure of himself under cross-examination.
) He admitted that he was not alone when, for the first time, the issue of an agreement surfaced in discussions, to allow the repayment of the debt owed by Farouk Razac. He conceded that present during those discussions was Seeta Ramroop, Arafat Qualander, the defendant himself and Fazeel Razac, which took place at the home of Razac's parents.
) He further admitted in his evidence that there were two follow up meetings at which various persons attended included himself, his wife, Seeta Ramroop, Arafat Qualander and a person named Troy, whom he identified as an accountant from the Cambio.
) He further admitted that at the office of attorney-at-law Robin Hunte, where the agreement was executed, Arafat Qualander was there, along with Fazeel Razac and Iqbal Hussein, another accountant from the Cambio. This court therefore finds his story dubious when he said he did not have any advisor present and that he was given a back page of a document to sign.
) This court also finds his story unconvincing that he was threatened and was in a state of fear and desperation when he would have signed the document. By his own evidence, present were both Farouk Razac's brother and an accountant of the Cambio.
) This court also finds his story incredible that the defendant having gone through several meetings surrounding the discussion of the debt owed by the estate of Farouk Razac, and the re-opening of the Cambio, with other principals of the said Cambio, and had even consulted his attorney-at-law prior, that he would have been in any way disadvantaged.
) By his own evidence, he suggested that he was with Farouk Razac from the starting of the business and was his partner. It is a known fact that successfully operating a Cambio venture is fraught with risk and it takes astute business acumen and resolve. Against this backdrop, this court finds it very difficult to accept his evidence describing the...
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