Justice Navindra Singh has granted an order permitting an executor, Deodatt Persaud to sell the Camp Street property housing the iconic Shanta’s Restaurant.
In the latest phase of a long-running legal battle between two siblings, the judge was scathing of the arguments presented on behalf of the defendants, the current occupants of the building, Premdaat Persaud and Mikail Vishnu Persaud who had claimed unsuccessfully in a case before another judge that the property had been sold to Premdaat Persaud.
In his judgment of April 30th, Justice Singh also awarded costs of $2m against Premdaat Persaud and Mikail Vishnu Persaud.
The proprietress of Shanta’s, Parbatti Persaud died on July 27th, 2003 leaving a will where Deodatt Persaud and Ascelia Rohini Kissoon were appointed the executors and trustees of the will. Deodatt Persaud is now the sole executor as Kissoon has not functioned as executor.
On December 23rd, 2019, Deodatt Persaud instituted a Fixed Date Application for an order granting him permission to sell the property located at sub-lot “A” part of the west half of lot numbered 225 Camp and New Market Streets, Georgetown, Guyana held by County of Demerara Transport No. 2015 of 1956.
On February 17th 2020, the Court ordered that the matter continue as though filed as a Statement of Claim since the Court determined that a trial was necessary to properly decide on issues raised in the Affidavit of Defence.
Case Management Orders were issued and the matter was adjourned to July 7th 2020 for a Pretrial Review to be conducted. The Defendants (Premdaat Persaud and Mikail Vishnu Persaud) then filed a Defence and Counterclaim on March 4th 2020 claiming inter alia that the claim was res judicata (a matter that has been adjudicated by a competent court and therefore may not be pursued further by the same parties),
By June 11th 2020 the Claimant’s Reply and Defence to Counterclaim, all parties’ Affidavit of Documents and Witness Statements were filed.
The Defendants then applied on June 20th 2020 for Summary judgment dismissing the Claim on the ground that it was res judicata. That Application was dismissed on October 16th 2020.
As a result of the Defendants’ application for Summary judgment, the Pre-Trial Review was postponed and eventually conducted on November 4th 2020.
At the Pre-Trial Review the judge said that the Claimant and the Defendants raised certain issues with the Court which in the Court’s view should be determined before a trial, if a trial was still possible and/or necessary after such determination.
The Claimant submitted that based on the witness statements the issues raised in the defence and counterclaim of the Defendants were res judicata and should accordingly be dismissed and judgment entered for the Claimant without a trial.
The Defendants submitted that the claim was lodged under the Deceased Persons Estates’ Administration Act; CAP 12:01 of the Laws of Guyana relying on sections 24 and 42 thereof, under which sections the Court had no jurisdiction to make the Orders sought by the Claimant since the terms of the Will created a Trust for sale and thereby took the power of sale outside of the provisions of Deceased Persons Estates’ Administration Act.
The judge however found that under the Will the Claimant and Kissoon were appointed “the executors and trustees of this my will hereinafter called “my trustees””.
Further, the Will provides that all of the property owned by the Testatrix (Parbatti Persaud) be devised to “… my trustees upon trust to sell, call in and convert into money all such parts thereof as shall not consist of money …”
The Will, the judge noted, further provides that “my trustees” “shall stand possessed” of all such monies that are left over after the payment of the Testatrix’ debts, funeral and testamentary expenses, “upon trust” for named beneficiaries “in equal shares”.
Justice Singh said that it was clear that the Testatrix wanted all of her assets liquidated and upon the payment of her debts and expenses any remaining monies be distributed equally as provided in the Will. The judge adverted to Section 42 of the Deceased Persons Estates’ Administration Act which underlines that the Executor/ Administrator effectively holds a deceased’s estate on trust for sale.
The judge said he did not find that the Will created a Trust for sale of the Property.
He added that since co-trustees (Deodatt Persaud and Kissoon) are required to act jointly, a key question was whether the court could grant an order permitting Deodatt Persaud to act without Kissoon.
The judge said that based on the evidence before the Court, it is undisputed by the parties that Kissoon has refused to act or perform any duty or function under the Will, whether as Executrix or Trustee.
“In these circumstances the Court finds that it can, if merited, grant the Claimant the power to sell the Property and complete the administration of the Estate”, the judge said
On the defendants’ claim of res judicata, the judge noted that the Defendants had instituted High Court Action No. 174 of 2010 (Demerara) against Deodatt Persaud claiming specific performance of an agreement of sale and purchase dated February 8th 2001 for the property.
The Defendants claimed that by that agreement of sale and purchase they had purchased the Property from Parbattie Persaud.
Following a trial of that Action, the judge pointed out that Justice Rishi Persaud dismissed the claim on May 20th 2011 having found that the agreement of sale and purchase was not genuine.
The present Defendants appealed Justice Persaud’s ruling and on July 20th 2018 that appeal was thrown out by the Court of Appeal. That dismissal by the Court of Appeal was not appealed to the Caribbean Court of Justice.
Justice Singh also rejected the argument of counsel for Premdatt Persaud and Mikail Vishnu Persaud that they are entitled to relied under the doctrine of Proprietary Estoppel where a party claims a right to land belonging to another party, in circumstances where the claimant has been led to believe that they have or can expect to be given an interest in the land.
The judge said that the same issues had been presented in the case before Justice Persaud and disposed of.
Justice Singh said: “Counsel for the Defendants submits that `The case at bar is not one in which the estoppel is a based on the promise of an interest in land.’ which is indeed baffling since that is precisely what they are claiming as per paragraphs 36 and 37 of their Defence and Counterclaim.
“It appears that Counsel for the Defendants advanced that submission to further submit that in those circumstances reliance on the doctrine of Proprietary Estoppel is only available to the Defendants as a Defence and in the aforementioned previous Action they were the Claimants (Plaintiffs).
“Apart from the fact that this is not an accurate representation of the law, this submission is indeed disingenuous since the Defendants have Counterclaimed in this Action [paragraph 44 (11)] on this very doctrine.
“However, notwithstanding that, in High Court Action No. 174 of 2010 (Demerara) the Claimant [herein] had in fact Counterclaimed for Possession [Defence and Counterclaim dated June 11th 2010 – attached to the Defendants Affidavit in Defence in this Action] and therefore, in accordance with Counsel for the Defendants submission, the Defendants had the opportunity to plead this issue determined by the Court.
“It is very unfortunate that Senior Counsel has chosen to be less than frank with the Court”.
The judge also addressed the defendants’ claim that they “do not claim adverse possession against the estate. Adverse possession is claimed against the trustees for sale to whom the property was bequeathed, namely Rohini Kissoon and Deodatt Persaud.”
Justice Singh said that counsel for the Defendants’ submission is diametrically opposed to the Defendants’ pleadings and points to the Counsel’s acceptance that a claim of adverse possession cannot be maintained against the Estate of Parbatti Persaud in light of High Court Action No. 174 of 2010 (Demerara) since this necessarily means that the Defendants cannot begin to pursue a prescriptive claim until twelve years had elapsed from the resolution of that claim acknowledging the Estate’s title. That decision was handed down on July 20th, 2018.
“Though it is not necessary to address Counsel for the Defendants’ submission, since `the Trustees of the Estate’ are not parties in this Action and therefore a Counterclaim against `them’” do not exist, profound legal analysis is unnecessary to address Counsel’s vacuous submission and so as a matter of completeness it will be briefly addressed.
“Accepting the Defendants contention that the Will created a Trust for Sale with respect of the Property, it cannot be that the Defendants can simultaneously pursue the remedy of specific performance against Deodatt Persaud in his capacity as Executor of the Estate of Parbatti Persaud, deceased and be in adverse possession against Deodatt Persaud in his capacity as Trustee of property owned by Parbatti Persaud, deceased, such Trust being created in the Will of Parbatti Persaud, deceased.
“Apart from the fact that the Property was never vested in the names of Deodatt Persaud and/ or Rohini Kissoon as Trustees, the submission conflicts violently with common sense since the Defendants by their claim in High Court Action No. 174 of 2010 (Demerara) recognised the Estate of Parbatti Persaud, deceased title to the Property.
“Whether they frame their claim against the Estate of Parbatti Persaud, deceased or the Executor of the Estate of Parbatti Persaud, deceased or the Trustee of the Estate of Parbatti Persaud, deceased the claim is against the same legal person.
“As stated before, it is obvious that Counsel for the Defendants recognise that the Defendants cannot legitimately claim to have acquired adverse possessory title against the Estate of Parbatti Persaud, deceased and so has concocted a legal illusion with deception as its object”, Justice Singh said.
The judge therefore dismissed the defendants’ claim of acquiring adverse possessory title to the property against the estate.
The judge also threw out an argument by the defendants that the deceased’s will applied only to her property in the UK.
Abiola Wong-Innis appeared for Deodatt Persaud, the Claimant.
Stephen Fraser SC appeared for the Defendants Premdaat Persaud and Mikail Vishnu Persaud.
