Nirmal Mahadeo v Candice Mahadeo (Trinidad and Tobago)

On a second appeal, the Board will not ordinarily review concurrent findings of fact by two lower courts. Departure is justified only in exceptional circumstances, such as an error of law that vitiates the finding or a procedural defect so fundamental that the proceedings cease to be judicial in the proper sense.

A document said to confirm an agreement is not itself the agreement unless the alleged agreement is proved. Pleadings and evidence must be considered as a whole. An appellate court may interfere only where the lower court’s factual assessment contains a material error or was not reasonably open on the evidence.

The parties were siblings and joint tenants of property in Trinidad and Tobago. The respondent sought partition or sale and an account of rents. The appellant counterclaimed for specific performance, alleging that the respondent had agreed to sell him her one-third interest for $500,000 and that a signed letter confirmed the agreement.

The trial judge found that no such agreement existed and made orders concerning the respondent’s interest and rents. The Court of Appeal dismissed the appellant’s challenge, holding that the trial judge had reached an evaluative conclusion open on a holistic assessment of the evidence. The appellant appealed to the Privy Council, raising whether the concurrent findings could be revisited and whether the alleged agreement was established.

1. Appeal dismissed. The Board held that the concurrent findings of the trial judge and Court of Appeal engaged the settled practice stated in Devi v Roy [1946] AC 508. The appellant had to identify an exceptional circumstance justifying review.
2. The appellant identified no error of law that vitiated the finding that there was no agreement, and no procedural defect of the kind recognised in Devi v Roy. The judge was entitled to assess credibility and the evidence as a whole. The Court of Appeal correctly found no material misconstruction of the evidence.
3. The letter dated 29 April 2016 was, at most, evidence of or a memorandum of an alleged agreement. The appellant’s pleading asserted an agreement which the letter confirmed. He therefore had to prove the prior agreement. The respondent’s denial of the relevant paragraph was a denial that any such agreement existed, not merely a defence based on her failure to read the letter.
4. The respondent’s evidence did not establish the alleged agreement. The trial judge was entitled to reject the appellant’s account, including because his evidence that he had paid nothing because he had no agreement was inconsistent with his case that an agreement had been reached.
5. The Board did not decide whether the court had power to order the appellant to purchase the respondent’s interest, because the parties agreed that the Property should be sold and agreed the proposed form of order subject to minor amendments. An order for sale was made in the agreed form.

• Privy Council: Appeal dismissed. An order for sale of the Property was made in the agreed form.
• Court of Appeal of the Republic of Trinidad and Tobago: Appeal dismissed; the court upheld the trial judge’s finding that there was no enforceable agreement.
• First-instance court: The trial judge found that no agreement existed, dismissed the counterclaim for specific performance, and made orders concerning purchase of the respondent’s interest and an account of rents.