Zinnia Rolle v Lincoln Bain

• Jurisdiction: Bahamas
• Judge: Grant-Thompson J
• Judgment Date: 30 November 2021
• Docket Number: CLE/gen/00701
• Court: Supreme Court (Bahamas)

IN THE SUPREME COURT

Before:

The Honourable Madam Justice Mrs. Cheryl Grant-Thompson

CLE/gen/00701

Between

Zinnia Rolle

Plaintiff

and

Lincoln Bain

First Defendant

and

Bani Shoe Warehouse Co. Limited

Second Defendant

Appearances:

Ms. Travette Pyfrom, Counsel for Plaintiff;

Mr. Donald Saunders, Counsel for the 1 ^st & 2 ^nd Defendants

FINAL JUDGMENT

Grant-Thompson J

BACKGROUND

1 . The Plaintiff claimed a breach of two agreements. The first is an alleged written agreement dated 20 April, 2010, and a second more detailed written Agreement, (executed on 23 April, 2010) with the First (1 ^st) Defendant. The Third Agreement is dated the 4 ^th May, 2010 and made with the Second (2 ^nd) Defendant. The Plaintiff rented from the First (1 ^st) Defendant, who was at all material times the President and partial owner of a company located on Mackey Street, an emporium which operated in the sale of women's retail, wholesale shoes, apparels and other consumer items.

2 . The Plaintiffs case is that she paid a sum of monies, specifically Forty Thousand Dollars ($40,000.00) to the First (1 ^st) Defendant for investments purposes to be held on trust for a period of three (3) years at a 10% interest rate per annum. The First (1 ^st) Defendant accepted that he executed a Forty Thousand Dollars ($40,000.00) agreement relative to the Second Defendant, Bani Shoe Warehouse Company Limited. However, he could not produce anything in writing to support this assertion. This is relative to the Third Agreement. He does not accept that he received Forty Thousand Dollars ($40,000.00) to be held on trust for investment purposes. The evidence was: “Yes we had an oral agreement. Q. And that the oral agreement was to purchase the shoe department at $40,000.00? A. Yes…so, the Kid's Shoes Department” (Page 4 cross-examination of the 1 ^st Defendant line 14–19).

ISSUES

• i. Was there any or any properly executed agreements between the Defendant and the Plaintiff;

• ii. If there was, what were the terms of these agreements and did they create a resulting trust; and

• iii. Did the Defendant breach the trust and was the Plaintiff liable to compensation in the result.

3 . Summary Judgment is hereby granted to the Plaintiff and the Defendant ordered to pay the value of her filed claim in the amount of Sixty Four Thousand Dollars ($64,000.00). (On the recovery of Forty Thousand Dollars ($40,000.00) with Interest calculated at 10% up to the 23 April, 2010). Ms. Zinnia Rolle paid Mr. Lincoln Bain the 1 ^st Defendant herein, the monies to be held on trust for three (3) years. The funds were never invested nor returned. I found the Plaintiff a credible witness. I did not believe the evidence of the (1 ^st) Defendant nor his witness. I also grant Three Thousand One Hundred Forty Three Dollars ($3,143.00) to be paid by the (2 ^nd) Defendant.

THE LAW

4 . In civil proceedings it is trite law that the standard of proof is on a balance of probabilities (as per Lord Denning J, MILLER v MINISTER OF PENSION [1947] 2 AER page 372).

5 . The House of Lords decision of Re B (Children) (Care Proceedings: Standard of Proof) [2008] 3 WLR 1 is also instructive relative to the standard of proof. Lord Hoffman at paragraphs 31 and 32 stated as follows:

“31 My Lords, if the judiciary in this country regularly found themselves in this state of mind, our civil and family justice systems would rapidly grind to a halt. In this country we do not require documentary proof. We rely heavily on oral evidence, especially from those who were present when the alleged events took place. Day after day, up and down the country, on issues large and small, judges are making up their minds whom to believe. They are guided by many things, including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other, and their overall impression of the characters and motivations of the witnesses. The task is a difficult one. It must be performed without prejudice and preconceived ideas. But it is the task which we are paid to perform to the best of our ability .

32 In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not.”

6 . Further resulting trusts were adequately addressed by Lord Justice Briggs in BELLIS V CHALLINOR [2015] EWCA, paragraph 53, 54:

“Quistclose-type trusts are a species of resulting trust which arise where property (usually money) is transferred on terms which do not leave it at the free disposal of the transferee. That restriction upon its use is usually crated by an arrangement that the money should be used exclusively for a stated purpose or purposes; and There must be an intention to create a trust on the part of the transferor. This is an objective question. It means that the transferor must have intended to enter into arrangements which, viewed objectively, have the effect in law of creating a trust (paragraph 56).”

7 . On the issue of the alleged forgery relied upon by the Defendant, Lord Denning in ASSOCIATED LEISURE LIMITED V ASSOCIATED NEWSPAPER LIMITED [1970] 2QBD at page 450 stated that:

“a charge of fraud, he must not put a plea… unless he has clear and sufficient evidence to support it.” Order 18, Rule 12 also provides that, “the necessary particulars of fraudulent intentions must be contained in the pleadings. The pleadings should set out the facts, matters and circumstances relied upon to show that the party charged had or was actuated by fraudulent intention. General allegations however, strong may be the words in which they are stated, insufficient to amount to an averment of fraud of which the Court ought to take notice…”

8 . I also found Order 18 Rule 8 Rules of the Supreme Court to be highly instructive relative to specifically pleading fraud. Order 18 Rule 8 states as follows:

“(1) A party must in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality —

(a) which he alleges makes any claim or defence of the opposite party not maintainable; or

(b) which, if not specifically pleaded, might take the opposite party by surprise; or

(c) which raises issues of fact not arising out of the preceding pleading .

(2) Without prejudice to paragraph (1), a defendant to an action for the recovery of land must plead specifically every ground of defence on which he relies, and a plea that he is in possession of the land by himself or his tenant is not sufficient.”

ALLEGED AGREEMENTS BETWEEN THE PARTIES

9 . Whether or not there was an agreement between the parties as alleged by the Plaintiff is essentially one of the primary issues before the Court. According to the evidence of the Plaintiff, the first agreement relative to the Forty Thousand ($40,000) paid to the First Defendant to be held on trust for a period of three (3) years was constructed in two parts. Firstly, on the 20 ^th April 2010 the Plaintiff and the First Defendant signed a document labelled “Agreement” in which the First Defendant allegedly signed and acknowledged receipt of the sum of Forty Thousand Dollars ($40,000) to be held in trust by the First Defendant for a period of three (3) years.

10 . The second part of the alleged agreement between the parties according to the Plaintiff was formulated on the 23 ^rd April, 2010. The Plaintiff avers that the both documents were signed by herself and the first Defendant and the agreement dated April 23 ^rd 2010 was witnessed by C. Butterfield and signed at the office of Willie Moss’.

11 . The 1 ^st Defendant Mr. Lincoln Bain claimed that he did not sign a trust agreement and that his clear signatures on the agreements before me were forged. He called his former manager, Mr. Keno Symonette to confirm his assertion of forgery. Although, the First Defendant herein alleged that he had an alternative agreement, he failed to produce the document before the Court which embodied that agreement. Notwithstanding, no alternative agreement was produced nor pleaded.

12 . The documents forming the purported first “Agreement” between the Plaintiff and the First Defendant which had a total value of Forty Thousand Dollars ($40,000) are hereby reproduced below.

Image a) Signature from Agreement dated 20 ^th April, 2010

Image b) Signature from Agreement dated 23 ^rd April, 2021

13 . Mr. Lincoln Bain accepted before my Court that he was paid the Forty Thousand Dollars by the Plaintiff. However, he distinguished this evidence and stated that the monies were paid in order to purchase the Kid's Shoe Department Store from Bani Shoes Warehouse Company Limited. He indicated he would have produced this agreement. However, same was destroyed in a fire. So both parties agreed the Forty Thousand Dollars was paid. The discrepancy is for which purpose were the monies paid. Was the payment made in order to establish a resulting trust on behalf of the First Defendant; or was the payment to secure additional shop space with the Second Defendant. The decision turned on which witness I found to be more credible based on the evidence before me.

i. (As per cross-examination of the 1 ^st Defendant recorded at page 2 at line 14–32 of the Court's transcripts) In giving evidence the Defendant opined that, “I knew that I did not sign this document. And I was trying to find other employees that would have known information. The ones that I could tracked down, because when the company close, everyone scattered…I was trying to find any employee that would have had any information. So, I was calling around different people. But Kino was the one, who had the same number, same e-mail, so I got him easier. And so,...