Barbara Gayle, Staff ReporterTHE COURT of Appeal, in a landmark ruling, on Thursday recommended that two lawyers should be joined as defendants for alleged conspiracy in a civil suit, which is now being heard in the Supreme Court. This has never happened before in legal history.
They are senior lawyers Jennifer Messado and Raymond Clough.
The court made the recommendation when it handed down a majority decision in favour of Kingston businessman Indru Khemnlani.
Since Monday, Khemlani, owner of the American Jewellery Store, downtown Kingston, has been involved in a legal battle with Kingston businessman Gordon Tewani. Mrs. Justice Carol Beswick is hearing the case in which Khemlani is seeking to have a property at 70A King Street, downtown Kingston returned to him because of several alleged breaches.
JUSTICE PANTON DISSENTED
Court of Appeal judges Mr. Justice Henderson Downer, and Mr. Justice Donald Bingham agreed that the lawyers should be joined as defendants in the suit. Mr. Justice Seymour Panton dissented.
Messado represented Tewani while Clough acted on Khemlani's behalf during the sale of Khemlani's jewellery store at Shop 3 Tropical Plaza to Tewani for $17 million.
Khemlani is claiming that Tewani was aware that he was selling the store to pay the bank money he owed on the property at 70A King Street. He said the delay by Tewani and his companies Tewani Ltd., and Commercial Corporation Jamaica Ltd., in paying him the entire sum of money, resulted in the bank auctioning the property and Tewani buying the property at the auction sale.
Attorneys-at-law Hilary Phillips, Q.C., and Denise Kitson are representing Khemlani.
In its decision, the court said it noted that there had been a transfer to Tewani of the property at Tropical Plaza although Khemlani stated that monies were still owing to him at the time of the transfer.
SERIOUS ALLEGATIONS
"These are serious allegations and if they were proved at a trial, a court could find that its officers (Clough and Messado) were liable for serious breaches, especially if they were sued for conspiracy with Tewani."
The court said it would appear that actions for breach of contract, negligence, or breach of fiduciary duty, conspiracy to injure Khemlani in his business and a declaration that Khemlani is entitled to be the registered owner of 70A King Street is the most appropriate way to proceed.
COMPLICITY
The court noted that evidence suggests complicity between Tewani, Jennifer Messado and Raymond Clough. These actions, it ruled, were closely connected with the purchase of 70A King Street by Tewani.
The refusal to pay over the funds by Jennifer Messdo and Co. and the refusal to hand over the funds to Khemlani when the funds were disbursed, it said, suggest a combination to deprive Khemlani of 70A King Street by wrongful means.
Yesterday, Phillips, in an effort to adhere to the court's directives, applied to Mrs. Justice Carol Beswick for the civil suit which had commenced before her on Monday to be adjourned. The judge, however, turned down the application. Ms. Phillips said she was seeking the adjournment so she could make an application at a case management conference next week in the Supreme Court for the two lawyers to be joined in the suit.
Attorneys-at-law Carol Davis and Patrick Bailey, who represent the defendants, opposed the adjournment.
APPLICATION REFUSED
The judge ordered that the hearing of the suit, which commenced on Monday before her, should proceed in accordance with the speedy trial ordered by Supreme Court Judge Andrew Rattray. Ms. Phillips applied for leave to appeal against the judge's ruling but she refused the application. The trial continued after the judge's ruling.
Ms. Phillips told The Gleaner yesterday that she was contemplating whether she should appeal against the ruling.
