THE PRIVY COUNCIL has dismissed the appeal of a doctor in a land matter in which he was accused of tricking his former employee and her children into signing over their family land and home to him.
In a written decision, they upheld the decision and orders made by Justice Devindra Rampersad.
“Indeed, in our view, the judgment of Rampersad J was an impressive one, perhaps all the more so because of the particular difficulties he may have faced in assessing the evidence of the claimants,” Lord Burrows said.
Dr Rohit Dass was accused by his former employee and patient, Rosemarie Marchand, and her children, of tricking them to sign a deed of conveyance, transferring their family home and land at Mission Road, Freeport, to him.
In 2007, Marchand and her children took Dass and an attorney, Victor Hosein, to court seeking to have the deed set aside. Hosein died before the matter was determined in 2012 by Rampersad.
Marchand was a cleaner at the doctor’s office. The property which belonged to Marchand's mother was transferred to her and her children in February 2006. Four months later, they each signed a deed conveying the property to Dass. He paid them a total of $307,800.
Marchand said she was offered permanent employment until retirement, an increase in salary, a life interest in the premises after the sale with a promise they will be allowed to use and occupy the upstairs portion of the building with the downstairs portion used by the doctor for his practice.
She also claimed she was offered free medical care and prescriptions, but refused the offer since her children would have no place to live. Marchan also had a history of nervous breakdowns, was diabetic and received treatment from time to time at the St Ann’s Psychiatric Hospital.
The family also claimed they were told by Dass that there was a mortgage over the property, held by a bank and that in order to pay off the mortgage arrears, the bank was selling the property.
They were taken to Hosein's offices, where they were each given a cheque for their shares of the proceeds of the bank's sale. They said they signed what they thought was a receipt for the cheques, but it was instead the deed of conveyance.
Dass’s version of events was completely different. He claimed the family wanted to sell him the property because Marchand needed money urgently to pay off a loan she had taken to settle a case involving the alleged theft by her daughter of a gold chain.
He insisted she and the children knew that they were signing a deed conveying the property to him and in return, she and her children were being paid the purchase price agreed.
Rampersad found the family’s version of the facts more convincing and ordered damages for the family.
In his ruling, he said the court could not overlook the fact that Dass, an educated professional, sought to purchase premises from a grieving, mentally ill, employee.
“Certainly the circumstances are questionable at best,” he said, adding that Dass also ought to have known about Marchan’s anxiety attacks, her mental illnesses and her status as an outpatient of the St Ann’s hospital.
“In such a circumstance it might also be equitable to void the transaction on the basis that it was not only procured by undue influence but that it was unfair,” he held.
His decision was upheld by the Court of Appeal.
At the hearing at the Privy Council, Dass’s attorney Thomas Roe QC, argued that the claims of trickery and undue influence rested on extraordinary allegations of dishonesty against two professional men, a doctor and a lawyer, who had no apparent motive, because they were not making any financial gain from the purchase of the property, and the claims were contradicted by the contemporaneous documents.
He also asked the board to depart from the usual practice of not going against concurrent findings of fact of two lower courts, saying the case was an exceptional one because the judge had gone so wrong in his reasoning that it was an error in law.
The Privy Council disagreed.
“Despite the valiant efforts of Mr Roe, it is clear that this appeal should be dismissed and the board considered it unnecessary to call on Anand Beharrylal, QC, counsel for the claimants.”
Of Rampersad’s decision, the Privy Council said there was no reason to doubt his findings.
“His judgment was thorough and clear and involved a careful analysis of all the evidence, including the contemporaneous documentary evidence,” the Privy Council held.
“…There is no reason to think that the judge did not have in mind that, very obviously, the reputations of two professional men were here being besmirched and that very serious allegations were being made of a dishonest conspiracy between them,” the Privy Council judges added.
The Marchands were represented by Anand Beharrylal QC and attorneys Zeik Ashraph, Krishendath Neebar, Haresh Ramnath, Simeon Wallis instructed locally by attorney Alvin Pariagsingh.