The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

FIREBRAND political activist Lincoln Bain has had the threat of a 90-day prison sentence eliminated despite losing his appeal against having to repay $64,000 over a failed investment deal.

Sir Michael Barnett, the Court of Appeal president, in a unanimous verdict, upheld the Supreme Court’s decision that the Coalition of Independents leader had failed to properly invest or return Zinnia Rolle’s funds in accordance with the agreements both sides signed.

The ruling, released on September 15, 2022, the same day as Mr Bain led a protest outside the House of Assembly, said it was “not surprising” that Justice Cheryl Grant-Thompson had preferred Ms Rolle’s evidence to that of the Coalition leader or his witness, Keno Symonette.

However, in a partial victory, the former Pinewood general election candidate and his attorneys succeeded in persuading the Court of Appeal to set aside a subsequent “addendum” by the Supreme Court which stipulated that Mr Bain would serve 90 days in Fox Hill prison if he failed to repay the $64,000 as ordered by February 28, 2022.

And Sir Michael also slammed the more than four years taken by Justice Grant-Thompson to issue her ruling as “a blight on the administration of justice”, adding that this was “particularly egregious” given it was a relatively simple case to determine.

Setting out the background to the dispute, Sir Michael said Ms Rolle alleged that she signed an April 23, 2010, agreement with Mr Bain for him to hold $40,000 of her funds in trust for three years. Interest at 10 percent was to be paid on this annually, with an option for Mr Bain to invest these monies on her behalf should she wish. Ms Rolle claimed she never exercised this option, and Mr Bain never returned what ultimately became $64,000 with interest.

A second May 4, 2010, contract, entered into with Bani Shoe Warehouse, a Mackey Street-based business for which Mr Bain was president and partial owner, required Ms Rolle to supply the company with merchandise and allow it to receive 30 percent of all sales. However, Ms Rolle alleged that she was never paid any of the monies due to her.

Mr Bain and Bani countered by asserting that the $40,000 represented an agreement for Ms Rolle to acquire the company’s kids shoes department for $40,000, having initially targeted its hand bag department. The Coalition leader denied that he was ever given any funds to invest, or that he signed the agreements, alleging that his signature was forged by Mr Symonette. In November 2010, he claimed Ms Rolle ceased to operate the kids shoes business after a fire.

Sir Michael, noting that there was no dispute the $40,000 had been paid to Mr Bain and Bani, wrote: “Rolle claims a breach of an agreement made on May 4, 2010. The agreement was made with Bani whereby she was to supply Bani with shoes, and Bani would sell those shoes for her. Bani would receive a commission on the sales and pay to Rolle the sale proceeds less the commission.

“The defence of Bain was that he never signed those documents and that his signature was forged. He called Keno Symonette to give evidence. Symonette stated under oath that he forged the signature of Mr Bain on the documents at the request of Rolle. He said that this was done in November 2010 on the same date as a fire which occurred at Bani.”

Ms Rolle, in her first contact with Mr Bain on April 14, 2010, said he had left her job at Royal Bank of Canada’s (RBC) Bimini branch in 2005 after eight years. She revealed that she lost her mother in the Chalk’s Airways crash, only to learn two months later she was pregnant with twins. A “medical condition” meant she had lost her insurance coverage, and she was a single stay-at-home mother.

The message to Mr Bain said she was seeking “financial advice”, and he responded: “It would be a pleasure to assist you. I do not charge. Call me.... so we can arrange a time to meet.” Sir Michael wrote: “It is clear that Rolle was seeking advice and assistance from Bain on how best to utilise her limited assets. She was trusting of Bain.

“The agreements of 20 and 23 April, 2010, (made shortly after that e-mail exchange) are consistent with that trust. She wanted Bain’s expertise in investing that money on her behalf.”

Mr Bain, who was represented by attorneys Tanya Wright and his Coalition sidekick, Maria Daxon, challenged the Supreme Court’s findings that he signed the agreements with Ms Rolle. However, Sir Michael ruled: “I am not satisfied that the finding by the trial judge that Bain signed the two agreements is plainly wrong and inconsistent with the evidence.

“The judge has made it clear that she did not believe the evidence led by the defendants in the testimonies of Bain and Symonette. She heard their evidence and saw their demeanour. She believed the evidence of Rolle. With respect, this is not surprising...

“Symonette’s evidence that he forged Bain’s signature on the three agreements at the urging of Rolle on the night of the fire of Bani in November 2010 is understandably not credible. It is not likely that on the night of the fire Rolle or anyone else’s attention would have been on creating a false documentation for insurance purposes,” the appeal court president added.

“Further, as the agreement of April 23, 2010, was intended to replace the agreement of April 20, 2010, it is most unlikely that Rolle would have required Symonette to sign both the agreement of the April 20, 2010, as well as the agreement of the April 23, 2010. There would have been no need to sign the earlier agreement on April 20, 2010.

“In my judgment, the trial judge’s emphatic rejection of the evidence of Bain and Symonette was not unreasonable and cannot be said to have been ‘plainly wrong’.”

Mr Bain and his attorneys also argued that the Supreme Court verdict was unsafe because it had taken four years from the trial to deliver the judgment. “Litigants have a constitutional right to a fair trial within a reasonable time. That it should take more than four years to deliver a judgment in a case as simple is this is incredulous. It is a blight on the administration of justice,” Sir Michael blasted.

“It is particularly egregious in this case as the trial in this relatively simple case took place over two days and only involved three witnesses whose evidence in chief was their witness statements. This case turned on the credibility of witnesses and the excuse given by the trial judge is lamentable. She must have formed a view as to the credibility of the witnesses during the trial.

“Given that she had her own notes, the absence of a stenographer’s transcript for only a portion of the evidence could hardly justify four years’ delay. I am aware, as counsel said during the hearing of the appeal, that during the time the trial judge had a busy criminal calendar. But judges must balance their time and always be mindful of a litigant’s right to a fair trial within a reasonable time and this includes the timely delivery of judgments.”

However, Sir Michael said the delay in itself was no reason to overturn the verdict requiring Mr Bain and Bani to repay the $64,000. “In my judgment, however egregious and culpable the delay in this case was, that delay did not prevent the judge from properly evaluating the evidence and making the finding that was determinative of this case,” he added.

However, he did overturn the subsequent penal notice in its entirety on the basis it was “plainly wrong to have been made”. Sir Michael said: “It is inconceivable that an order with such penal sanctions could have been made without hearing the party adversely affected by the order.”