REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV 2011-01707

BETWEEN

IMRAZ ALI

Claimant

AND

KAZIM ALI

Defendant

Before the Honourable Mr. Justice R. Rahim

Appearances:

Mr. D. Seecharan and Mr. R. Seecharan instructed by Ms. R. Mankee-Sookram for the

Claimant.

Ms. S. Gopeesingh instructed by Ms. K. Persad for the Defendant.

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Judgment

1. This is a claim for recovery of money on the basis of a promissory note dated 22nd

October 2010.

Disposition

2. For the reasons stated herein, the judgment of the court is as follows:

a. Judgment for the Claimant in the following terms:

i. The Defendant is to pay to the Claimant the sum of $1,000,000.00 for

money due and owing under Promissory note dated 22nd

October 2010

together with interest at a rate of 6% from the 1st April 2011 to the 10

th

July 2014 in the sum of $196,800.00.

ii. The Defendant is to pay to the Claimant the prescribed costs of the

claim in the sum of $118,840.00.

b. The counterclaim is dismissed.

c. The Defendant is to pay to the Claimant the prescribed costs of the

counterclaim in the sum of $211,400.82.

3. The Claimant and Defendant are brothers. By the said promissory note, the Defendant

promised to pay the sum of $3,000,000.00 to the Claimant first by part payment of

$2,000,000.00 on the date of execution of the promissory note and the balance of

$1,000,000.00 on the 31st March 2011.

4. On the execution of the promissory note, the Defendant did pay to the Claimant the

sum of $2,000,000.00 in accordance with the agreement. However, the Defendant has

failed to pay the balance of the sum agreed by the dated stipulated in the note. The

result is that the Claimant now seeks an order of the court that the Defendant pay to

him the balance due on the promissory note.

5. The Defendant denies that the Claimant is entitled to the balance of the sum owing on

the basis that the promissory note was entered into under duress.

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6. The Defendant claims that on the 22nd

October 2010, the Claimant called the

Defendant’s wife and threatened to cause blood to flow to her family. This threat is

denied by the Claimant is his Reply although he admits speaking with the Defendant’s

wife on several occasions in relation to negotiating a settlement. Further, the

Defendant claims that he received a call from the Claimant’s attorney warning him

that the Claimant was behaving erratically. Subsequent to this phone call and on the

same day, the Claimant’s attorney went to the Defendant’s home and warned him that

he should settle all debts owing to the Claimant immediately as the Claimant had lost

money in investments and was desperate enough to act irrationally.

7. The Defendant avers that because he knew of his brother’s erratic and violent nature

and because he was fearful for his and his family’s life he agreed to pay

$3,000,000.00 and to transfer several heavy duty equipment and vehicles to the

Claimant.

8. In the alternative, the Defendant claims that there is a total failure of the consideration

for the promissory note.

9. In this regard, the Defendant claims that the Claimant was employed by LMCS Ltd

(hereinafter referred to as LMCS) which is a limited liability company of which the

Defendant is a majority shareholder. According to the Defendant LMCS was awarded

two government contracts from NIDCO and he employed the Claimant as the

manager of these contracts.

10. LMCS purchased all equipment for the projects and the Claimant was in charge of,

inter alia, requesting payment from NIDCO for the performance of the contract.

However before this contract was completed the Claimant began making excessive,

unrealistic and unjustified demands of money from LMCS. In October 2010, the

Claimant hired an attorney, Odai Ramischand, to represent him with respect of these

demands. A meeting geared at resolving this dispute was held with the Claimant’s

attorney and the Defendant and agents of LMCS on or around 8th

October 2010. At

this meeting it was submitted on the Claimant’s behalf that LMCS owed the Claimant

$5,000,000.00 as remuneration for work done with LMCS plus equipment. Although

the Defendant and the agents from LMCS indicated to the Claimant’s attorney that the

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Claimant was already in receipt of the sum of $17,000,696.00 for the satisfaction of

various debts owed by the Claimant to several institutions, the Claimant’s attorney

stated that at least the Claimant was entitled to $3,000,000.00 together with heavy

duty equipment.

11. At the close of the meeting, the Defendant agreed to consider the proposition.

However, on the 22nd

October 2010, following the events described at paragraph 5

above, and on the understanding that LMCS was to receive the sum of $3,792,880.63

from NIDCO for the contracts, the Defendant agreed to pay to the Claimant the sum

of $3,000,000.00 and also to pass a number of heavy duty equipment to him.

12. The Defendant was informed on the 16th

December 2010 by one Maldho Balroop that

LMCS was in fact indebted to NIDCO in the amount of $2,096,032.90. Thus, the

Defendant claims that due to the fact that LMCS will no longer receive the sum of

$3,792,880.63 and that LMCS actually has to repay the sum of $2,096,032.90 while

the Claimant has already received $2,000,000.00 there has been a failure of

consideration.

13. The Defendant further claims that when he was induced into executing the promissory

note and paying the Claimant the sum of $2,000,000.00 he was advised that he, and

not LMCS, would be personally liable to the Claimant. He says he was not afforded

the opportunity of independent legal advice.

14. The Defendant therefore counterclaimed for:

a. An order that the promissory note is set aside on the grounds of duress;

b. The repayment of the sum of $2,000,000.00;

c. An order that the Claimant pay the sum of $2,096,032.90 to NIDCO;

d. A declaration that the agreement for sale of the heavy equipment was made

under duress and is thereby vitiated/nullified;

e. Return of heavy duty equipment.

15. In his Reply to the Defence and Counterclaim, the Claimant denies that the

promissory note was executed in the circumstances alleged by the Defendant. He

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denies ever threatening the Defendant’s wife but says that he was in contact with her

concerning negotiations on another debt owed to him by the Defendant. The Claimant

avers that the debt was owed for two contracts the Claimant completed for the

Defendant involving the dredging and/or cleaning of the Mathura River and Caroni

River. He states that the Defendant had first sent the Claimant a claim for a certain

amount early in September 2010 and on the 21st September 2010 the Claimant

claimed the sum of $38,64,756.81. The Claimant claims that he entered into

negotiations via telephone and email with the Defendant’s wife for a compromise and

settlement of the sum claimed for these contracts.

16. According to the Claimant, the negotiations were not fruitful and he employed Mr.

Odai Ramischand to represent him in the negotiations. Negotiations took place

thereafter and a meeting was held on the 8th

October 2010 at the office of Mr.

Ramischand wherein it was agreed that in settlement of the respective debts of the

Claimant and Defendant to each other:

a. Both parties would keep all equipment then in their respective possession;

b. The Defendant will pay to the Claimant $5,000,000.00 first by a

$2,000,000.00 installment on the execution of an agreement and then in three

$1,000,000.00 installments on the 30th

April 2011, 31st October 2011 and 30

th

April 2012.

c. Mr. Odai Ramischand would prepare the agreement in writing and forward

same to the Defendant for him to take to his attorney for approval and

thereafter executed by both parties.

17. Subsequent to this meeting however, the Defendant indicated to the Claimant’s

attorney that he wished to give to the Claimant some equipment and machinery in

exchange for a reduction in the sum to be paid to the Claimant. The Defendant sought

to reduce the sum to $3,000,000.00.

18. The Claimant avers that the Defendant requested that if the Claimant accepted this

new offer, Mr. Ramischand was to prepare a Promissory note to be signed by the

Defendant, and a release and discharge document to discharge the Defendant from all

debts and liabilities he owed to the Claimant. The Defendant further agreed to sign a

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receipt for a nominal price of $500 as the purchase price of the equipment and

machineries.

19. The documents were prepared by Mr. Ramischand and sent to the Defendant for his

perusal and approval. The Claimant claims that late in the evening on 22nd

October

2010, the Defendant emailed back the final documents back to Mr. Ramischand with

his changes. After the changes were made, Mr. Ramischand, at the Defendant’s

invitation, visited the Defendant at his home the same day and the documents were

executed.

20. In the alternative, the Claimant claims that, if the court finds that the Promissory Note

was executed under duress, the Defendant by his subsequent conduct failed to do

anything to challenge the validity of said promissory note and only did so after

receiving letters of demand by the Claimant’s attorney for the payment of the balance.

21. In relation to the Defendant’s claim that the consideration for the Promissory Note has

failed, the Claimant states that while he was employed by LMCS, this was before the

year 2006 and not after. However, the Claimant claims that in 2008, when LMCS was

awarded the government contracts, he contracted with the Defendant, both in their

personal capacities, to perform all works in those contracts. According to the

Claimant, it is usually the practice that a subcontractor retains 85% of the contract

price while the principal contractor retains 15%. In this situation, the Claimant says he

agreed with the Defendant to retain 80% of the contract prices which were

$4,431,024.29 for the Matura River and $16,635,913.00 for the Caroni River. The

terms of the contract were that:

a. The Claimant would provide all funding, labour and machinery, equipment

and expertise

b. The Defendant would submit his invoices to the Claimant. The Defendant

would and/or LMCS would submit their own invoices to the project manager

at NIDCO who will then prepare the payment certificate and pay the

Defendant. The Defendant would pay to the Claimant 80% of the payment and

retain 20%.

c. The Claimant would complete the subcontract in a two year period.

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22. The Claimant claims he completed all works within a one year period but the

Defendant refused/neglected to pay him.

23. The Claimant avers that it is irrelevant that the Defendant is indebted to NIDCO.

Issues

24. The Defendant having admitted to executing the Promissory Note, however stating

that such execution arose out of duress, must prove the existence of same. Further, the

Defendant has claimed that there was a failure of consideration on the Promissory

Note. The issues for consideration are therefore:

a. Whether the Defendant acted under duress in the execution of the Promissory

Note.

b. Whether there was a failure of consideration on the Promissory Note.

Duress

25. The ground upon which a contract is voidable for duress is the same as in the case of

fraud, and is that, whether it springs from a fear or a belief, the party has been

subjected to an improper motive for action. Duress vitiates every contract into which

it enters, and an instrument, the consideration for which is brought on by duress, is

voidable at the option of the party defrauded except against a holder in due course:

see Woolwich Equitable Building Society v Inland Revenue Commissioners [1992]

STC 657; Halsbury's Laws of England (5th

Edition) Volume 48 (2008) para.1483.

26. It is first for the Defendant to prove the existence of duress at the time of the making

of the contract. It is then for the Claimant to prove that his threat has contributed

nothing to the Defendant’s decision to enter into the contract. A contract obtained by

one party (A) by means of duress exercised by A over the other party (B) is probably

voidable by B, even though he might have entered into the transaction even if the

threat had not been uttered: Halsbury's Laws of England (5th

Edition) Volume 22

(2012) para.292.

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27. The court is first concerned with the Defendant’s evidence of duress. At common law

duress usually means the compulsion under which a person acts through fear of

personal suffering as from injury to the body or from confinement, actual or

threatened: Halsbury's Laws of England (5th

Edition) Volume 22 (2012) para.292.

Evidence on behalf of the Defendant’s case was given by the Defendant himself, his

wife Catherine Ai and their daughter, Sinead Ali.

28. According to the Defendant, the Claimant had been an employee of LMCS and in

2007 he was made the manager of two government contracts through NIDCO for the

dredging of the Mathura River and the Caroni River. As manager, the Claimant was

responsible for requesting payments from NIDCO for the performance of the contract.

The Defendant gave evidence that at all times the Claimant advised on the amount of

money due and the accounts were prepared by LMCS Accountant.

29. The Defendant testified that in or around October 2010, the Claimant employed Mr.

Ramischand to represent him with respect of the dispute concerning the money

demanded. The Defendant’s evidence was that in an effort to get rid of the Claimant’s

claim, he and the account administrator of LMCS attended a meeting with Mr.

Ramischand on or around the 8th

October 2010. According to the Defendant, at this

meeting Mr. Ramischand indicated that the Defendant was indebted to the Claimant

in the sum of $5,000,000.00. The Defendant stated that Mr. Ramischand appealed to

him to settle at least $3,000,000.00 to avoid a messy situation, that the Claimant and

him were siblings and their parents old and because the Claimant had lost a

considerable amount of money in investments. The Defendant stated that he left the

meeting agreeing to consider the Claimant’s proposition.

30. The Defendant testified that one week before the 22nd

October 2010, his wife

informed him that the Mr. Ramischand had called her in respect of the dispute and she

encouraged the Defendant to meet with Mr. Ramischand again. Following this, on the

19th

October 2010, his wife forwarded to him an agreement drafted by Mr.

Ramischand.

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31. It was the Defendant’s evidence that on the evening of the 22nd

October 2010 his wife

called him in a panic and sounding disturbed and distressed because she had received

a threatening phone call from the Claimant. The Defendant stated that he rushed home

disoriented because he was concerned with the safety of his family. Around 10 p.m.

the same night, Mr. Ramischand went to the Defendant’s home and asked for the

payment for the Claimant. The Defendant testified that when he appeared hesitant,

Mr. Ramischand told him that the Claimant was acting erratic because he had lost

money on investments and was desperate enough to act irrationally. Further, Mr.

Ramischand told the Defendant that he had to take the cheque right away to the

Claimant as he was fearful of what the Claimant might do if this was not done. The

Defendant then instructed his daughter Sinead Ali to write out a cheque for

$2,000,000.00 and he then signed it and executed the documents.

32. Thus, the Defendant’s evidence was that as a result of the fear he had for the welfare

of his family, he was induced into signing the promissory note, cheque and receipt for

the sale of the equipments.

33. On the Defendant’s evidence therefore, the specific feeling of duress was brought

about by (1) the alleged phone call to the Defendant’s wife on the 22nd

October 2010

and (2) Mr. Ramischand’s alleged statements of the Claimant’s state of mind on the

evening of the 22nd

October 2010.

34. Catherine Ali gave evidence that she did receive a phone call from the Claimant on

the 22nd

October 2010 while she was on her way home. She stated that her daughter

answered the phone when it rang and handed it to her. Mrs. Ali testified that when she

took the phone she recognized the Claimant’s voice and he told her that someone in

her family would be seriously hurt and blood would flow if he did not get the money

that day. After this call, Mrs. Ali called her husband and told him what had occurred.

She stated that shortly after Mr. Ramischand called her and told her that the Claimant

was enraged and making threats but he had managed to reduce his demands to

$3,000,000.00 and that she should convince the Defendant to settle the debt before the

Claimant carried out his threats.

Page 10 of 18

35. Mrs. Ali’s evidence was that she called back her husband and relayed the

conversation she had had with Mr. Ramischand and her husband told her he did not

have that amount but had closer to $2,000,000.00. Mr. Ramischand called back Mrs.

Ali some time after and when she told him what her husband had said, told her that

they would accept the $2,000,000.00 and a promissory note signed for the remainder.

Mrs. Ali stated that although she informed Mr. Ramischand that her husband had not

agreed to the payment, Mr. Ramischand told her that he would draw up the papers and

come to the house to discuss. Accordingly, Mr. Ramischand went to the Defendant’s

house at around 10 p.m. that same day with the documents. When the Defendant

expressed reluctance, Mr. Ramischand explained that the Claimant was irrational as

he had lost money on investment and was desperate enough to act irrationally. She

also testified that Mr. Ramischand told the Defendant that he had to take the cheque

right away to the Claimant as he was fearful of what the Claimant might do if this was

not done. At this stage the Defendant gave in and signed a cheque for $2,000,000.00

and executed the documents.

36. Sinead Ali who is also now the assistant secretary of LMCS, testified that she was

with her mother on the 22nd

October 2010 when her mother received a call from the

Claimant. Thereafter she observed her mother making calls to the Defendant and she

heard her say the Claimant had threatened the family. Sinead gave evidence that later

in the evening the same day, a man who she now knows as Mr. Ramischand visited

their home and spoke to her parents. She testified that Mr. Ramischand told them that

the Claimant was in an irrational state and if he had no money from the Defendant he

would harm his family.

37. The evidence in chief of the Defendant was that he had been meeting with the

Claimant and his attorney from early October 2010. He stated that in an effort to settle

the matter and get rid of the Claimant’s claim he met with Mr. Ramischand. Mrs. Ali

testified that she received a call from Mr. Ramischand in September 2010 about the

Claimant’s dispute. She stated that although she was not directly involved in the

discussions, due to her mediation background and mediatory nature, she did

encourage her husband to meet with Mr. Ramischand. While their evidence seems to

be that there was initially voluntary negotiation, the case for the Defendant is that he

was induced into finally signing the promissory note after his wife received a

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threatening phone call. In fact, in cross examination, the Defendant stated that he

only agreed to meet with Mr. Ramischand before the 22nd

October 2010 to keep the

peace. He further testified in cross examination that he “never negotiated because I

did not owe anybody anything. There was never any need for me to negotiate”.

38. Notwithstanding the Defendant’s denial of negotiations taking place prior to the 22nd

October 2010, there are two emails which provide some indication that negotiations

were taking place before the incident of the threats. The first email is that dated the

18th

October 2010 from Mr. Ramischand to Mrs. Ali. It included a message “Please

see attached agreement. Thank you.” and an attachment “Agreement – Kazim &

Imraz docx”. This email was forwarded on the 19th

October 2010 to an email address

lmcsltd@gmail.com. Mrs. Ali in her evidence in chief testified that she did receive an

email on the 18th

October 2010 from Mr. Ramischand but owing to the fact that she

was not involved in the negotiations, she forwarded same to her husband. The court

infers that this is the email she forwarded on the 19th

October 2010 to

lmcsltd@gmail.com which was her husband’s email address. In fact, Mrs. Ali in cross

examination testified that she forwarded the email to her husband’s company email

and that once she sent it to that address her husband would receive it. The next email

was that of the 22nd

October from Mrs. Ali to Mr. Ramischand. The email included a

message “Please see changes below and attach copy of Imraz’s DP” and attachment

“Promissory Note Imraz docx”. This attachment included a schedule of machinery

and equipment. In cross examination, Mrs. Ali accepted that these were the emails she

referred to in her evidence-in-chief.

39. Thus, while the Defendant in cross examination says he did not negotiate prior to the

threats, the email evidence indicates otherwise. It was not the Defendant’s case that

there were threats prior to the 22nd

October 2010 phone call, in fact, the Defendant’s

pleaded case and his evidence in chief was that he had met with the Claimant’s

attorney, Mr. Ramischand early in October 2010 in an effort to settle the Claimant’s

dispute. There was no indication on the Defendant’s pleadings that there was any

duress or inducement before the 22nd

October 2010. Thus the Defendant’s attempt in

cross examination to say that he never entered into negotiations indicates to the court

that the Defendant is being untruthful and deliberately evasive. This is further

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strengthened by the Defendant’s testimony when asked about documentary proof that

he cleared off debt on the Claimant’s behalf:

“Q: The debt you paid off was $85,000.00

A: No 3.7M

Q: Do you have any receipts where you paid off this money

A: Bank transfers

Q: Do you have any bank transfers that you paid off the debt to Scotia

A: On me no. They are in the office

Q: You know this case was coming up

A: Yes

Q: You knew that you were alleging that you paid off his debts to Scotia

A: Yes

Q: You knew it was 3.7M and yet you did not think it fit to bring those bank

transfers to prove your point

A: No

Put: I am putting to you you did not pay off any debt for $ 3.7M

A: I am saying that reason why I did not bring it here is because I came here

to tell you at this point that Imraz threatened my family

Q: That’s the only reason you are in court. Imraz threatened you.

A: That’s the case

Q: That’s the only reason you are in court because Imraz threatened you.

A: And under duress forced me to pay some money”

40. In fact, several times during cross examination, the Defendant refused to answer the

questions being asked on the basis that he felt he was forced into executing the

promissory note. This in the court’s view has affected the credibility of the Defendant

in relation to the issue of duress. Further, while the Defendant gave evidence that the

Claimant had a habit of violence; no such evidence of any past occasions to support

that bald and damning allegation was led.

Page 13 of 18

41. In cross-examination the Defendant testified that he considered the threats serious,

and that while he was not afraid of the Claimant, he was fearful for his family’s lives.

Further, he testified that although he signed the promissory note under duress he

stated that he did not stop the cheque from being cashed and did not make a report of

the threat to the police. No report was made to the police, despite the Defendant’s

evidence that the Claimant had a habit of violence. This evidence has caused the court

to entertain great doubt as to the credibility of the claim of duress by the Defendant.

Even if he had chosen not to report the matter to the police, certainly nothing

prevented the Defendant from putting a stop to the cheque by way of instructions to

the bank. No explanation has been given for his failure to do so. It simply is not

reasonable to accept that having regard to the dire circumstances as set out by the

Defendant as to what allegedly transpired that night that he would permit the cheque

to be honoured. The court therefore finds that it is more likely than not that there was

no duress in the execution of the promissory note as testified to by the Defendant and

his witnesses.

42. The Defendant stated that he was not given the opportunity to consult a lawyer before

he entered into the promissory note. However, the evidence of the Defendant and Mrs.

Ali was that discussions had begun early in October 2010. Further, there is evidence

that there were email correspondence with respect to the promissory note and changes

were suggested on the Defendant’s behalf. In cross examination, Mrs. Ali testified

that she made no changes to the promissory note sent on the 18th

October 2010 but

that she did make minor changes to the one sent on the 22nd

October 2010. However,

this is not consistent with her evidence in chief. In her evidence-in-chief Mrs. Ali

stated that she had made minor changes to the document sent on the 18th

October

2010. When asked which version was the truth, she stated that the one in her witness

statement was the truth, that is, that she made changes to the document sent on the

18th

October 2010. The court therefore does not accept that opportunity was not given

to the Defendant to consult a lawyer and if the Defendant did not, it was through no

fault of the Claimant. This is fortified by the Defendant’s evidence in his witness

statement that “Sometime around 19th

October 2010, my wife forwarded me an

agreement drafted by Odai. I still however did not seek legal representation in this

matter, as I, quite frankly did not think there was any proper legal claims that the

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Claimant has in this matter.” It is clear that it was not that he was not given an

opportunity to obtain legal advice but that he chose not to.

43. Further, the court is of the view that the simplest way to prove firstly that a phone call

was made is to bring a record of incoming calls. If the court is to believe at least that

the Claimant called Mrs. Ali on the 22nd

October 2010 and allegedly threatened her,

then for the very least proof of the phone call ought to have been forthcoming. What

is more, the Defendant pleaded that he himself had received a phone call from the

Claimant’s attorney warning him that the Claimant was behaving erratically. While

this was pleaded it was not his evidence. He gave evidence that his wife had received

the phone calls.

44. The Claimant gave evidence that he sent claims in respect of the two government

contracts to the Defendant and it was those claims that they attempted to settle when

negotiations began in October 2010. He stated that a compromise was arrived at after

a meeting held on the 8th

October 2010 whereby it was agreed, inter alia, that the

Defendant would pay the Claimant $5,000,000.00. Subsequent to this however, the

Defendant approached Mr. Ramischand and offered certain machinery and equipment

for a reduction in the settlement amount to $3,000,000.00. This was accepted by the

Claimant and Mr. Ramischand prepared the documents. These said documents were

signed by the Defendant on the 22nd

October 2010 when his attorney attended the

Defendant’s residence. Mr. Ramischand’s evidence supported the Claimant’s

evidence. Further, Mr. Ramischand testified that he attended the Defendant’s

residence at the Defendant’s invitation. Mr. Ramischand gave evidence that on arrival

there, he was made to wait for 30 minutes outside, and then was invited inside by the

Defendant who also requested certain changes be made to the promissory note. Both

the Claimant and Mr. Ramischand testified that at all times the negotiations between

the Claimant and the Defendant were free and voluntary.

45. The Claimant and Mr. Ramischand’s evidence on the negotiations which took place

was not successfully challenged in any material respect. Attorney for the Defendant

submitted that the behavior of Mr. Ramischand in the witness box was inappropriate

to say the least. It is submitted that he was aggressive and arrogant in demeanor. It

was also submitted that it is unreasonable to find that an attorney of some thirty years

Page 15 of 18

experience would conclude a million dollar transaction in the dead of night. So that

Mr. Ramischand must be telling untruths in respect of most of his evidence is the

inference that the court is asked to draw. With this reasoning the court does not agree.

Firstly, the court must state emphatically that the demeanor of Mr. Ramischand in

answer to questions in cross-examination left much to be desired. As an officer of the

court, and a practitioner with many years experience, he displayed a temperament at

times unbecoming of his status as an attorney. While it may be true that the content of

some of the questions may have in fact provoked such a response, Mr. Ramischand

ought not to have reacted in such a manner. In short he ought to have known better.

Not only ought he to have known better, but better was expected of him as an officer

of the court.

46. However, that being said, this does not necessarily mean that he is being untruthful.

Reliance solely or in large measure on the demeanor of a witness is very often a false

indicator as to where the truth lies because of the inherent fallibility and individual

nuances of human personality. That is not to say that demeanor is to be entirely

disregarded in the assessment of testimony, but it is perhaps one of the lesser factors

to be considered. In this case, the plausibility of Mr. Ramischand’s evidence remains

intact. In the cut and thrust of practice, it is not unusual for Attorneys to work late

hours and to make late visits to clients if the circumstances warrant. This is

particularly so where the attorney has had a close relationship with the client as in this

case, both the Claimant and Defendant were brothers with whom Mr. Ramischand had

a good relationship. There was therefore in the court’s view nothing unusual in this

visit that would lend support to the evidence of the Defendant on the issue.

47. The Claimant denied any contact with the Defendant or his wife after the first

meeting. He specifically denied calling Mrs. Ali. In fact he testified that his lawyer

advised him not to have any conversation with either the Claimant or Mrs. Ali and

that’s what he did. This is supported by the evidence of Mr. Ramischand. Again, the

simplest way to refute the Claimant’s denial of calling Mrs. Ali would have been by

way of the production of phone records by the Defendant but there is no such

evidence to support the Defendant on this issue. With respect to the evidence of

Sinead Ali, who testified in chief that she answered the call from the Claimant in

which the threat was made to her mother, it is clear from the evidence elicited in

Page 16 of 18

cross-examination that she did not in fact hear the conversation. She also admitted

that she could have been mistaken when she said that it was the Claimant on the

phone talking to her mother. It means that her assumptions that there was a

threatening phone call was based on her mother’s assessment of the words used (if

any) amounting to a threat having overheard her mother’s subsequent conversation on

the telephone. This evidence from the witness is in the court’s view unreliable.

Further the court notes that this witness has also testified in cross-examination that on

the night that the promissory note was executed, Mr. Ramischand was sounding

“harsh” and according to the witness, “he sounded like he was threatening us.” No

other witness has made such an allegation against Mr. Ramischand himself and

the court is therefore wary of this testimony. In the round it adds to the

implausibility of the version of events set out by the Defence.

48. For the reasons above, it is more likely than not that there were no threats made by the

Claimant. The fact that there were voluntary negotiations prior to the 22nd

October

2010, and the lack of evidence that a phone call was made on that date and no

evidence that a report of the threat was made to the police leads or that the payment

on the cheque was stopped leaves this court to conclude that the Defendant did enter

into the promissory note of his own free will.

Consideration

49. Bills of exchange and promissory notes, unlike other forms of simple contract, are

presumed to stand upon the basis of a valuable consideration: see s. 30 of the Bills of

Exchange Act Chap 82:31. The effect of the presumption, therefore, is to shift the

burden of proof from the claimant who relies upon the instrument to the defendant

who impugns it. But when it is admitted or proved that the acceptance, issue or

subsequent negotiation of the instrument is affected with fraud, duress, or force and

fear, or illegality, the burden of proof is shifted unless and until the holder proves that,

subsequent to the alleged fraud or illegality, value has been given for the instrument

Page 17 of 18

in good faith: Halsbury's Laws of England (5th

Edition) Volume 48 (2008) para.

1407.

50. Valuable consideration has been defined as some right, interest, profit, or benefit

accruing to the one party, or some forbearance, detriment, loss, or responsibility

given, suffered, or undertaken by the other at his request: Halsbury's Laws of

England (5th

Edition) Volume 22 (2012) para. 309.

51. Where that which was promised can no longer be done, either by some defect in the

thing to be done or non-performance in whole or part of that which the promissee

agreed to do, there is failure of consideration.

52. The Defendant submitted that the Claimant’s claim arose out of work done under the

contracts awarded to LMCS, as an employee of LMCS. Further, that the Claimant had

held himself out to be a contractor and was responsible for the management of the two

contracts. It was argued that as manager of the contracts, the Claimant was

responsible for the advice on what works were done and the value of that work and

any overpayment on the contract by NIDCO would have come about on the wrong

and negligent advice of the Claimant to the accountant of LMCS. Thus the argument

is that by the Claimant’s negligent performance of his duties as manager, there has

been failure of consideration.

53. The Claimant stated that he was subcontracted by the Defendant personally and he

was not at the time of the contracts an employee of LMCS. The Defendant however

testified that the Claimant was an employee of LMCS. The court does not believe that

it is material whether the Claimant was an employee or an independent contractor.

What matters in this case is whether, the Claimant failed to do that which was agreed

by the promissory note. Can it be said that his performance of his duties as manager

was a promise held out under the promissory note?

54. The Promissory note concerned an assurance by the Claimant to forbear any further

claims he may have had for work done as manager of the NIDCO contracts. In

exchange for which, the Defendant would pay to the Claimant $3,000,000.00 and

allow him to keep certain machinery and equipment already in his possession.

Page 18 of 18

55. Any claim in relation to the Claimant’s responsibility as manager of those contracts

and his performance of those duties is a claim on the employment agreement and not

the promissory note. It was submitted on behalf of the Claimant, and the court agrees

that the Defendant’s reliance on the “Bolam Test” with respect to the Claimant’s

duties are not applicable in this current case as it is a matter concerning the Defendant

and not LMCS. Further, a receipt for $500 was signed by the Defendant. The court

having found that there was no duress, does not believe that the receipt was signed

under any duress. There being a receipt and no other evidence indicating the money

was not received the court does not believe the Defendant when he says he was not

paid the money. In the circumstance, there has been no failure of consideration.

Dated this 10th

July, 2014.

Ricky Rahim

Judge