REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV2013-04564

BETWEEN

SHUKUR MOHAMMED SHAKEER

Trading as HAJI SHUKUR HAJJ GROUP

CLAIMANT

AND

RAJAN’S TRAVEL SERVICE LIMITED

DEFENDANT

Before the Honourable Mr. Justice R. Rahim

Appearances:

Mr. W. M. Coppin instructed by Mr. F. Scoon for the Claimant

Mr. M. Quamina instructed by Ms. G. Gopeesingh for the Defendant

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Judgment

1. The fifth pillar of Islam (the final pillar) is that of a journey that every sane adult

Muslim must undertake at least once in their lives if they can afford it and are

physically able, namely the pilgrimage to Mecca to visit and pray at the Kaaba.

This visit occurs in the month of Dhul Hijjah which is the twelfth month of the

Islamic lunar calendar. This journey is known as the Hajj. The journey takes one

to Jeddah by air and ultimately to Mecca by automobile.

Brief History of the Hajj

2. A brief history of the Hajj is necessary in this case as history places into context

the religious importance of the journey to those of the Islamic faith and the holy

command that they make such a journey which in turn bears relevance to the

material issues which arise for consideration in this claim for breach of contract.

3. Four thousand years ago the valley of Mecca was a dry and uninhabited place.

Muslims believe the Prophet Ibrahim (known in Christian theology as Abraham)

was instructed to bring his wife, Hajira (Hagar) and their child Is'mail to Arabia

from Palestine to protect them from the jealousy of Ibrahim's first wife Sarah.

Allah (God) told the Prophet Ibrahim to leave them on their own, and he did so,

with some supplies of food and water. However, the supplies quickly ran out and

within a few days Hajira and Is'mail were suffering from hunger and dehydration.

In her desperation Hajira ran up and down two hills called Safa and Marwa trying

to see if she could spot any help in the distance. Finally, she collapsed beside

Is'mail and prayed to Allah for deliverance. Is'mail struck his foot on the ground

and this caused a spring of water to gush forth from the earth. Hajira and Is'mail

were saved. Now they had a secure water supply they were able to trade water

with passing nomads for food and supplies. After a while the Prophet Ibrahim

returned from Palestine to check on his family and was amazed to see them

running a profitable well.

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4. The Prophet Ibrahim was told by Allah to build a shrine dedicated to him. Ibrahim

and Is'mail constructed a small stone structure - the Kaaba or Cube - which was to

be the gathering place for all who wished to strengthen their faith in Allah.

(History of the Hajj, British Broadcasting Corporation online edition Article of

the 8th September 2009.)

5. Such a pilgrimage is therefore a religious compulsion to those who belong to the

Islamic faith. It is a priority to the able bodied muslim and is therefore an onerous

duty not to be lightly undertaken. It is this dedication to duty that results in

Muslims of every ethnic group, colour, social status, and culture gathering

together in Mecca and standing before the Kaaba to prayer once every year.

Further, apart from being an obligatory religious duty, Hajj is seen to have a

spiritual merit that provides the Muslims with an opportunity of self-renewal. One

who completes the Hajj is entitled to use of the prefix “Hajji”. (See the text of the

Holy Qur’an suras 22:27, 2:125, 2:197).

The Claim

6. The Claimant was at all material times engaged in the business of organizing

tours from Trinidad and Tobago to Mecca, Saudi Arabia for Muslim Pilgrims to

perform the Hajj.

7. The Defendant is a travel agency which is and was at all material times a limited

liability profit company registered under the Companies Act, Chap. 81:01, with

registered offices and principal place of business situate at No. 8 Penitence Street,

San Fernando.

8. During the month of October, 2009, the Claimant purchased from the Defendant

twenty-two (22) return airline tickets from Trinidad and Tobago to Mecca, Saudi

Arabia. The Claimant alleges that he was assured by the Defendant that the route

booked by the Defendant, that is, Trinidad and Tobago to London thence to

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Riyadh and finally to Jeddah was a permissible one. It was upon this basis that he

purchased the tickets.

9. Jeddah is a major urban city of western Saudi Arabia and the second largest after

Riyadh, the capital of Saudi Arabia.

10. The Claimant alleges that as it turned out, the journey from London to Jeddah via

Riyadh was an impermissible route. The Claimant has alleged that it was not

permissible to enter Saudi Arabia for the purpose of the Hajj unless one had

travelled by direct flight to Jeddah. Consequently, upon arrival in London, it is the

case for the Claimant that he and his group were prevented from boarding the

aircraft to Riyadh as originally ticketed by the Defendant. He was therefore forced

to purchase twenty-two return tickets for the group of pilgrims to travel from

London directly to Jeddah. The Claimant claims that the cost of these tickets

amounted to two hundred and fifty thousand dollars ($250,000.00).

11. Therefore, the Claimant alleges that due to the Defendant’s breach of contract by

innocent misrepresentation and/or negligent misstatement and/or negligent

misrepresentation, he suffered loss.

The Defence

12. The Defendant pleads that there was no such restriction in place and that in any

event no such restriction has been proven. It is the case for the Defendant that the

Claimant has proven no such official restriction on the part of the Saudi Arabian

government and further, that the act of preventing the pilgrims from boarding the

aircraft from London to Riyadh was in fact an act of the airline for which the

Defendant bears no responsibility.

The evidence

The evidence of the Claimant

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13. The Claimant gave evidence for himself and called one other witness, Mr. Fazeel

Mohammed.

14. The Claimant testified that in or about March, 2009, he decided to offer a package

to Mecca, Saudi Arabia for pilgrims to make the annual Hajj. According to the

Claimant, he had much experience in organizing such tours to Mecca as prior to

2009 he organized at least five trips for Hajj. During cross-examination, the

Claimant testified that he would have organized at least seven tours to Hajj prior

to 2009. The Claimant would have in the past, liaised with the necessary

authorities in order to procure the Hajj visas on behalf of the pilgrims. The

Claimant would obtain the necessary visas from the Saudi Arabian Embassy in

Caracas or in Washington. It was his evidence during examination in chief that he

frequently utilized the Saudi Arabian Embassy in Caracas and as such he was

known at that Embassy.

15. It is also his evidence that in or around July, 2009, he went to the offices of the

Defendant where he met Ms. Chandra Maharaj. The Claimant knew Ms. Maharaj

for some time as he had done business with her prior to this meeting. The

Claimant indicated to Ms. Maharaj that he was desirous of taking a group of

twenty or more pilgrims inclusive of himself from Trinidad to Jeddah, Saudi

Arabia to perform the Hajj during the month of November, 2009.

16. The Claimant explained to Ms. Maharaj the basic importance of Hajj to a Muslim

being one of the five pillars of Islam and one which was very costly so much so

that most Muslims only get to experience it once in their lifetime. The Claimant

informed Ms. Maharaj that the actual dates of Hajj depended on the sighting of

the moon for that lunar month and for the year 2009, pilgrims were required to be

in Mecca for the last week in November. The Claimant further informed Ms.

Maharaj that while the entire pilgrimage would last five days, the Saudi Arabian

Government required all pilgrims to enter Jeddah about three to four days before

the actual beginning of Hajj which meant the Claimant and his group of pilgrims

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should arrive on the 20th November, 2009. He also informed her that after the five

days of actual Hajj, it was customary for pilgrims to spend extra days in Mecca

and Medina, therefore, she should take this into consideration when searching for

flights. Before leaving the Claimant gave Ms. Maharaj a preliminary list of the

intended pilgrims and she promised to get back to him with a proposal.

17. During cross-examination the Claimant testified that the cost of the tickets did

play an integral part in the purchasing of the tickets but convenience was the

paramount factor to the purchase of the same.

18. According to the evidence of the Claimant, Ms. Maharaj contacted him via fax in

or around the 29th August, 2009, inquiring whether he wanted to leave Port of

Spain on the 17th November, 2009 and travel through London, Istanbul, Turkey

and Jeddah, Saudi Arabia. The Claimant found this option undesirable as it

required a stay of two nights in London.

19. The Claimant testified that Ms. Maharaj sent him several other proposals after the

first proposal via fax in August, 2009 including a proposal to transit through New

York which he also found to be untenable as several of the intended pilgrims did

not have a United States of America visas and the Claimant did not wish to

separate the group.

20. It is the evidence of the Claimant that Ms. Maharaj returned with a new proposal

in or around early October, 2009, in which she proposed to get the group to Hajj

from Port of Spain, Trinidad via Heathrow Airport in London, Doha International

Airport, Qatar and Riyadh King Khalid International Airport before finally

landing at Jeddah International Airport in the Kingdom of Saudi Arabia. The

Claimant immediately expressed doubts about these transits points as the first

point of entry into the Kingdom would be Riyadh and not Jeddah. Ms. Maharaj

notwithstanding the Claimant’s protestations about this itinerary returned to the

Claimant insisting that if such travel was permissible. Further, Ms. Maharaj

claimed to have evidence that she had obtained express assurances from the

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Kingdom of Saudi Arabia through its embassy in London that there was no

problem with the group of pilgrims transiting from King Khalid International

Airport in Riyadh and that this was normal. As proof of this permission, Ms.

Maharaj forwarded an email from a Mr. Shafquat Rajah, who Ms. Maharaj

claimed was in constant communication with the Saudi Arabian Embassy in

London. In this email Mr. Rajah went so far as to say that he was sure that the

group would receive assistance in Riyadh and not face any problems.

21. The Claimant testified that Ms. Maharaj knew that these representations were key

to him agreeing to purchase the tickets. The Claimant in reliance on these

representations entered into the contract with Ms. Maharaj. According to the

evidence of the Claimant, these representations became terms of the contract by

the Defendant which specialized in the sale of airline tickets.

22. The contract was finalized on the 15th October, 2009, when the Claimant accepted

the Defendant’s proposal for the twenty-two tickets for Shukur M. Shakeer,

Alima Mohammed-Shakeer, Sheikh Fazeel Mohammed, Taslim Mohammed,

Hatima Mohammed, Nazim Ali, Farida Ali, Mustapha Khan, Jennifer Khan,

Allan Ferguson, Zoraida Dookie, Salima Shah, Abushama Abdullah, Feroze

Sultan Khan, Mursaleen Ali, Shaheed Khan, Yusuf Hans, Ayesha Hans, Hamidan

Mohammed, Abraham Mohammed and Lyn Marie Wilson (“the group of

pilgrims”), to journey from Trinidad and Tobago to Jeddah, Saudi Arabia via

Heathrow Airport in London. The flights would then take the group to Doha

International Airport, Qatar, then to Riyadh King Khalid International Airport

before finally landing at Jeddah International Airport. Qatar is a sovereign country

located in Southwest Asia, whose sole land border is with Saudi Arabia to the

south. The cost of the twenty-two tickets (22) was One hundred and twenty

thousand dollars ($120,000.00).

23. On the 19th November, 2009 the group of pilgrims boarded a flight to London

from Piarco International Airport. They arrived at Gatwick and took the coach to

Heathrow Airport. When they attempted to board the Qatar Airways flight bound

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for Doha, they were denied boarding and were informed by the airline

representatives that by reason of Saudi Arabian regulations, all pilgrims arriving

in the Kingdom of Saudi Arabia from anywhere in the world for Hajj 2009 were

to fly directly from London, Heathrow to Jeddah, where they were required to

surrender their passports.

24. According to the evidence of the Claimant, he was shocked at this revelation and

immediately sought to find out what could have been done. At that time the only

available airline that could accommodate the group was Saudi Airlines.

25. It is the evidence of the Claimant that another group of pilgrims who also booked

their tickets with the Defendant also experienced the same issue. The Claimant

was present when Mr. Samir Hosein, the organizer for the other group called Ms.

Maharaj to complain about their predicament.

26. The Claimant was also able to relay to Ms. Maharaj their plight and was put onto

her son, Mr. Rickki Maharaj, also a director of the Defendant. The Claimant

communicated that the group would have to purchase the tickets in London from

Saudi Airlines as they were approaching the last day to enter the Kingdom of

Saudi Arabia. Some pilgrims began to cry uncontrollably and the Claimant was

put to the huge embarrassment of having to explain to many of them that their

lifelong ambition to make Hajj was now in jeopardy. The Claimant testified that

he informed Mr. Rickki Maharaj that to purchase twenty-two return tickets to

travel upon Saudi Airlines from London Heathrow to Jeddah to London Heathrow

would be costly and Mr. Maharaj told the Claimant to keep his receipts after

making the purchase.

27. The Claimant purchased the twenty-two tickets with his money as well as money

he borrowed from his family and friends and suffered losses to the tune of Two

hundred and Fifty thousand dollars ($250,000.00). The Claimant testified that his

business is now ruined.

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28. During cross-examination, the Claimant testified that he arrived at the sum of

$250,000.00 from perusing the content of the E-tickets issued by the Saudi

Airlines (see attachment SS6 of the Claimant’s witness statement). He further

testified that the tickets had varying prices since they were both business class

and/or first class. The Claimant had to purchase these tickets since most of the

economy tickets were sold out. The Claimant did not produce any invoices from

the airline for the purchase of those tickets. The Claimant accepted in cross-

examination that he did not state in his witness statement whether he repaid any of

the monies he borrowed to purchase the tickets. Moreover, the Claimant did not

say how his business was ruined, he simply testified that he has not made any Hajj

travel since 2009.

29. When the Claimant returned to Trinidad, he communicated with Ms. Maharaj on

several occasions and formally communicated by letter dated February, 2010,

restating the problems they faced in attempting to get to Saudi Arabia.

30. By a pre-action protocol letter dated the 21st October, 2013, the Claimant’s

Attorneys demanded payment from the Defendant of all outstanding amounts due

on the invoices. Notwithstanding the said requests and demands and the said pre-

action protocol letter, the Defendant has failed and/or refused to repay the

Claimant the price of the said tickets.

31. Fazeel Mohammed testified that he was asked by the Claimant to act as a

spiritual guide to the group of pilgrims primarily because he had been to Hajj

from Trinidad on two previous occasions and possessed a degree from the

University of Medina in Islamic Studies. The witness is also fluent in Arabic and

this was an asset to the group.

32. According to the evidence of Mr. Mohammed, when the Claimant informed him

of the travel itinerary which involved travel through Riyadh he questioned the

Claimant as to whether this was allowed. The Claimant informed him that he had

received assurances from the Defendant that it was possible. Mr. Mohammed

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testified that he had personally always known Jeddah to be the first port of entry

for pilgrims making Hajj and on his two previous pilgrimages from Trinidad he

had travelled via Jeddah.

33. The Claimant sponsored and procured Mr. Mohammed’s tickets. The group left

Trinidad on or about the 18th November, 2009 and arrived in London, Gatwick on

or about the 19th November, 2009. They proceeded to Heathrow Airport and

attempted to board Qatar Airways for Doha. The group was informed that if they

went to Riyadh, they would be denied entry, their passports stamped accordingly

and they would be deported.

34. Mr. Mohammed testified that a representative from Qatar Airlines told him that if

they attempted to travel through Riyadh, they would not be able to make Hajj ever

again. The representative also stated that the airline would get in trouble with the

Saudi Arabian Government and as such they could not accommodate the group of

pilgrims. Further, Mr. Mohammed testified that it was also communicated by

persons from Qatar Airways that all pilgrims arriving in the Kingdom of Saudi

Arabia from anywhere in the world including London, Heathrow for Hajj 2009,

were required to fly directly to Jeddah where they were required to surrender their

passports.

35. During cross-examination, Mr. Mohammed testified that the person who informed

the group that they could not pass through Riyadh to get to Saudi Arabia was an

employee of the Qatar Airlines and not an official of the Saudi Arabian

Government.

36. According to the evidence of Mr. Mohammed, many of the pilgrims showed signs

of despair and the Claimant was back and forth with several airlines trying to find

alternative arrangements to ensure that all was not lost. Mr. Mohammed testified

that it was an absolute nightmare. He further testified that he remembered the

Claimant being on the phone with the Defendant but there appeared to be no other

solution at that stage but to purchase tickets from Saudi Airlines. The group was

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finally able to secure tickets on Saudi Airlines and the Claimant had to borrow

money from several persons to secure the flights. The Group was unfortunately

divided up into batches in order for them to be accommodated. Mr. Mohammed

was the last person to get unto a flight.

The evidence of the Defendant

37. The Defendant called one witness, its director Ms. Chandra Maharaj. Ms. Maharaj

testified that from its inception, the Defendant has been engaged in the business of

assisting customers with the purchasing of airline tickets, hotel accommodation

and tours. During cross-examination, she testified that she is an experienced travel

agent. That the Defendant Company has been in existence since in or around the

year 1987 and it is very prominent. The Claimant was accompanied by a partner

at the time of the booking. As such Ms. Maharaj booked twenty-two tickets for

the Claimant and eighteen tickets for his partner.

38. According to the evidence of Ms. Maharaj, in or around August/September, 2009

the Claimant called the Defendant with the request that she arrange twenty-two

tickets to fly from Port of Spain, Trinidad with the final destination being Jeddah

Saudi Arabia. Ms. Maharaj testified that she was further instructed that departure

from Port of Spain, Trinidad should take place on the 18th November, 2009 to

return on the 13th of December, 2009 and that she should find the cheapest fares

possible.

39. It is the evidence of Ms. Maharaj that the Claimant agreed to purchase the airline

tickets for the following route:

a. Departure from Trinidad:

i. Port of Spain to London on 18th November 2009, on British Airways;

ii. London to Doha, on the 19th November 2009, on Qatar Airways;

iii. Doha, to Riyadh, 20th November 2009;

iv. Riyadh to Jeddah, on 20th November 2009, on SV Airline;

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b. Return to Trinidad;

v. Madinah, to Riyadh, on 12th December 2009, on SV Airline;

vi. Riyadh, to Doha, on 12th December 2009, Qatar Airways;

vii. Doha, to London on 13th December 2009, Qatar Airways; and

viii. London to Port of Spain on 13th December 2009.

40. According to the evidence of Ms. Maharaj, at no time did she ever have any

discussion with the Claimant about any permission required to travel to Jeddah,

Mecca or any other destination. She testified that she was never asked to secure

any travel documents, or visas. Neither was she ever asked to secure any form of

permissions for travelling for the Claimant to enter any jurisdiction. In fact it is

the Claimant who is in the business of organising tours from Trinidad and Tobago

to Mecca, Saudi Arabia.

41. Ms Maharaj testified that she was specifically given the instructions to arrange

twenty-two tickets to fly from Port of Spain, Trinidad to Jeddah and to depart

from Madinah, Saudi Arabia to Trinidad. She further testified that she was

specifically told that she should arrange the cheapest tickets and that is what she

did.

42. During cross-examination, Ms. Maharaj agreed with Counsel for the Claimant

that the Claimant did not simply come in and ask her to find the cheapest tickets

but that there was a degree of communication between the Claimant and she. She

testified that there were several proposals to the Claimant before he agreed to

final route mentioned above. According to the evidence of Ms. Maharaj, the

Claimant did express doubts about the ability to transit through Riyadh to get to

Saudi Arabia. She testified that she clarified those doubts by doing a Timatic

search as well as she engaged Mr. Shaquat Rajah to further ensure that the route

was permissible. Timatic stands for Travel Information Manual Automatic and is

a database containing cross border passenger documentation requirements.

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43. Moreover, Ms. Maharaj testified during examination in chief that she also called

the Saudi Arabian Embassy and they confirmed that once a person could transit

within twelve hours from Riyadh, no problem would arise. Further, they

confirmed that there is no rule that a person cannot transit through Riyadh to

Jeddah. There is however, nothing in writing in possession of the witness to that

effect from the Saudi Arabian Embassy. She further testified that she

communicated this information to the Claimant and on the basis of her Timatic

research, the Claimant entered into the agreement to purchase the tickets.

44. It is the evidence of Ms. Maharaj that during the late hours of the 19th November,

2009 or early hours of the 20th November, 2009 she was contacted by the

Claimant who was in en route in London. She spoke to the Claimant who told her

that the group of pilgrims were being prevented from boarding Qatar Airlines

because they were not flying directly from London to Jeddah, Saudi Arabia.

45. Ms. Maharaj testified that as a result of that phone call she attempted to assist by

finding any alternative flights. On the morning of the 20th November, 2009 she

also placed a telephone call to the Saudi Arabian Embassy in London and was

informed by the Embassy that there were no restrictions regarding persons

travelling on a Hajj visa to Jeddah. After receiving this information, Ms. Maharaj

tried on numerous occasions that day to contact the Claimant on his cellular

phone but there was no answer. She further testified that the Claimant remained

out of contact with her until he returned to Trinidad.

46. During cross-examination, Ms. Maharaj testified that she liaised with the Saudi

Arabian Embassy after the group was faced with the problem. She further testified

that she did not contact the embassy prior to the travel but had researched the

issue to ensure that her clients could have gone from point A to B with or without

visas and/or with the correct passports.

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47. Further, during examination in chief, Ms. Maharaj testified that she gave the

number for the Saudi Airlines to Mr. Rajah. Mr. Rajah is a person known very

well by Ms. Maharaj. Ms. Maharaj testified that she gave the number to Mr. Rajah

when the group encountered the problem for him to check to ensure that the group

did not require a visa. Ms. Maharaj testified that the only time she spoke to Mr.

Rajah was when the group encountered the problem. However, the evidence

demonstrates quite clearly by way of her own admission that she in fact spoke

with Mr. Rajah prior to the the group undertaking the travel. This is also bourne

out in the email communication attached to the Defendant’s Supplemental list of

documents as document number 3. This was therefore a clear inconsistency within

her testimony on this issue.

48. According to the evidence of Ms Maharaj, she was contacted by the Claimant

approximately three (3) weeks after the return date and he then raised the issue of

being prevented from boarding the flight. The Claimant then indicated to her that

he bought other tickets as a result.

49. It is the evidence of Ms. Maharaj that approximately six (6) months later, the

Claimant asked to meet but nothing was arranged and she heard nothing further

from the Claimant until she received the Claim Form a few days after it was filed.

50. Moreover, during cross-examination, Ms. Maharaj testified that in November,

2013, she was still communicating with Qatar Airlines. She requested from Qatar

Airlines the possibility of the Claimant being refunded for the unused tickets. She

testified that she blamed the airline for the problem encountered by the group of

pilgrims since the Timatic search demonstrated that the group could transit from

Riyadh to Jeddah within twelve hours. She further testified that she did not blame

the Claimant as he accepted the route. Ms. Maharaj did not receive a letter from

the other group of pilgrims. She testified that when the other group of pilgrims

encountered the same problem with Qatar Airlines, she assisted them in getting

flights to Jeddah.

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51. The result of the Timatic search was attached to the Defendant’s supplemental list

of documents as document number 2. It is dated the 12th November, 2009 and was

emailed to the Claimant on the 18th November, 2009 at 12:40 a.m. It carries the

rubric “Confirmations for transit in Riyadh,” The document set out the following:

“Visa required, except for those continuing to a Third Country, Provided:

Continuing by the same or first connecting aircraft within 18 hours, and

holding confirmed onward tickets and all documents required for their

next destination.

Only one stop-over in Saudi Arabia is permitted, except when flying on

Saudi Arabian airlines, where a second Transit point is permitted.

Any change to Itinerary is subject to Immigration Approval.

There are no hotel facilities available at the Airport Transit Area.”

Issues

52. It is not disputed that there was a contract between the Claimant and the

Defendant and that a representation was made by the Defendant that it was

permissible for the group to travel via Riyadh. Therefore, the issues that arise for

the Court’s determination are as follows:

i. What was the relevant condition of the contract between the parties in

relation to travel for the purpose of Hajj;

ii. Was there a breach of that condition by way of innocent

misrepresentation, negligent misstatement or negligent misrepresentation;

iii. If so, what is the appropriate award.

Law

53. According to Halsbury's Laws of England, Volume 22 (2012), paragraph 352,

during the course of the formation of a contract, one of the persons who are to

become parties to the contract may make representations to another such person.

A representation is a statement made by one party (the representor) to another

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party (the representee) which relates, by way of affirmation, denial, description or

otherwise, to a matter of fact or present intention. If untrue, it may be termed a

misrepresentation. A representation of fact may or may not be intended to have

contractual force; if it is so intended, it will also amount to a contractual term; if it

is not so intended, a positive statement is termed a mere representation.

54. In assessing whether defective performance gives rise to the right to terminate the

courts first ask whether the term of the contract was a condition or a warranty.

The significance of this distinction is that a breach of condition entitles the

innocent party to terminate the contract and claim damages for any loss he may

have suffered, regardless of the seriousness of the breach as a matter of fact,

whereas a breach of warranty only entitles him to damages: Halsbury's Laws of

England, Volume 22, paragraph 556.

55. A misrepresentation is a positive statement of fact, which is made or adopted by a

party to a contract and is untrue. It may be made fraudulently, carelessly or

innocently. Where one person ('the representor') makes a misrepresentation to

another ('the representee') which has the object and result of inducing the

representee to enter into a contract or other binding transaction with him, the

representee may generally elect to regard the contract as rescinded. In these

circumstances the representee may invoke the aid of the court, which may

confirm by declaration his entitlement so to regard the contract, and grant him

such other relief as may flow directly from the fact of rescission, for example, the

return of money paid or chattels delivered by him pursuant to the terms of the

contract: Halsbury's Laws of England, Volume 76 paragraph, 701.

56. In the locus classicus, Hedley Byrne and Co Ltd v Heller and Partners Ltd

[1963] 2 All ER 575 the Court laid down the principle that a negligent

misrepresentation, which causes financial loss may give rise to an action in

damages for negligence, despite the absence of any fiduciary or contractual

relationship between the parties. At page 606, Lord Devlin explained:

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“The House clearly considered the view of Derry v Peek, exemplified in Le Lievre

v Gould, to be too narrow. It considered that outside contract (for contract was

not pleaded in the case), there could be a special relationship between parties

which imposed a duty to give careful advice and accurate information. The

majority of their lordships did not extend the application of this principle beyond

the breach of a fiduciary obligation, but none of them said anything at all to show

that it was limited to fiduciary obligation. Your lordships can therefore proceed

on the footing that there is such a general principle and that it is for you to say to

what cases, beyond those of fiduciary obligation, it can properly be extended.”

57. In addition to this common law principle, Section 3 of the Misrepresentation Act

Chap 82:35 confers liability for loss suffered arising out of misrepresentations

whether made fraudulently or otherwise.

58. In Angela Alexander (Trading as Prestige of Maritime Centre) v Maritime

Leasing Company Limited CV 2006-02235 the relevant law was set by out by

Stollmeyer J as follows:

“In brief, the law is clear and well settled. The representation must be a statement

of a present or past fact as distinct from a statement of opinion, or of intention or

of law (see e.g. Chitty on Contracts 25th Ed. Vol. 1 para. 394).

A mere statement of opinion, which proves to be unfounded, will not be treated as

a misrepresentation, nor will a simple statement of intention which is not put into

effect; for as a general rule these cannot be regarded as representations of fact,

except insofar as they show that the opinion or intention is held by the person

expressing it.

There are, of course, exceptions to this general position. One is where the person

expressing the opinion did not hold it. Another is where that person could not, as

a reasonable person, having his knowledge of the facts, have held that opinion. It

will be for the person to whom the representation was made to prove this, but it

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was not done by the Claimant here. Similarly, "mere puffs" or commendatory

statements do not amount to representations, and an opinion or commendatory

statement expressed in good faith does not amount to a representation.

With regard to a statement of intention, this may be looked upon as a

misrepresentation of existing fact, if, at the time it was made, there was not the

will or the ability to put that intention into effect; for the promisor's state of mind

was not what he led the other party to believe it to be.

59. Further, if the representation is to have any effect in law it ought to have operated

on the mind of the representee and the burden of proof lies squarely on the

representee: Manas Ltd v Trinidad Broadcasting Ltd. H.C.A. 1104 of 2006.

Issue 1

Condition of the contract

The submissions of the Claimant

60. Counsel for the Claimant submitted that the contract between the Defendant and

the Claimant were a combination of oral representations and/or assurances from

Ms. Maharaj, an agent of the Defendant. Ms. Maharaj gave the Claimant express

representation and/or assurances that the proposed route to Saudi Arabia was a

permissible route before the contract took place. It was submitted that these

repeated representations and/or assurances from Ms. Maharaj in response to the

Claimant’s expressed doubts about the permissibility of the proposed route,

induced the Claimant to enter into the contract with the Defendant. Thus, it is the

argument of the Claimant that these representations and/or assurances became

terms of the contract since they were of vital importance to the Claimant in

concluding the purchase of the tickets for the route proposed by Ms. Maharaj.

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61. Counsel for the Claimant relied on the case of Bannerman v White (1868) 10

CBNS 844, in which provides that a statement is likely to be a term if the

recipient makes it clear that the statement is of vital importance. It was submitted

that the Claimant did make it clear to the Defendant that these assurances were of

paramount importance to him.

62. Moreover, Counsel for the Claimant relied on the case of Dick Bentley

Productions v Harold Smith (Motors) Ltd. [1965] 1 WLR 623 in which the

statement was held to be a term of the contract because it had been made clear by

a car dealer who was in a position to know or find out about the history of the car.

63. It was argued on behalf of the Claimant that the Defendant is an experienced

travel agent in business since 1987 with a stellar reputation in San Fernando.

Moreover, that the Defendant’s agents were purportedly in constant contact with

the Saudi Arabian Embassy and Qatar Airlines and was therefore in a position to

know whether or not the route proposed was going to be permissible for the

pilgrims. As such the assurances became terms of the contract.

64. Further, Counsel for the Claimant contended that there was no evidence that the

Defendant asked the Claimant to verify the information but rather a multitude of

purported confirmations from the Defendant which was akin to telling the

Claimant there was no need to check whether the assurances were true: See

Schawel v Reade [1913] 2 IR 81 HL

The submissions of the Defendant

65. While not directly addressing the issue of whether the travel arrangement to

Jeddah constituted a condition of the contract, the tenor of the submissions filed

by the Defendant leads one reasonably to the conclusion that the Defendant

accepts that the requirement that the group travel to Jeddah for the purpose of Hajj

was in fact a condition of the contract between the parties. In the result the

20

submissions of the Defendant relate more appropriately to the issue of whether

there was in fact a breach.

Findings

66. The court is of the view and finds that on the evidence it is abundantly clear that it

was a condition of the contract that any travel arrangement to be made by the

Defendant would be one which did not infringe upon the entry requirements of

Saudi Arabia by the group travelling to that country for the specific purpose of

performing Hajj. The preponderance of evidence makes it abundantly clear, as

submitted by the Claimant (with which this court agrees), that the foundation and

primary, pivotal purpose of the contract was to get the pilgrims to Jeddah so that

they could lawfully enter for further purpose of travel to Mecca to partake in the

Hajj.

67. The evidence demonstrates that the Claimant explained this purpose and the

fundamental importance of the need to ensure that the ports of call along the route

did not result in an infringement of the entry requirements of the Kingdom of

Saudi Arabia in respect of those who were performing Hajj. Any such

infringement would as a matter of logic and common sense more than likely have

resulted in the group being debarred from entry for their religious obligation. As

demonstrated above, the injunction to those of the Islamic faith to make the

pilgrimage, being founded in Qur’anic admonition is so compelling to muslims as

to make it inconceivable that such persons would make arrangements for travel

which leave their entry into the Kingdom in a state of uncertainty. It must be that

this condition was the primary fundamental condition of the travel arrangement or

else why travel at all. That much is clear.

68. What is more, is that the Defendant’s agent Mrs. Maharaj knew of this condition

and accepted same as being a condition precedent to the existence of the contract.

Her email communication between both she and the Claimant and she and Mr.

Rajah shows this in no uncertain terms.

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69. Further, it is a matter of common knowledge in this jurisdiction (because of the

rich mixture of religious beliefs of the multicultural population and the many

interactions between people of different religions) that the Hajj is of vital

importance to muslims and that they consider the pilgrimage to be an obligation

to god. All things being equal such knowledge is also well known or in fact more

well known to travel agents such as Mrs. Maharaj who are contracted to make

such arrangements from time to time.

70. The assurances given by the Defendant to the Claimant both orally and by way of

her emails together with the experience of Mrs. Maharaj in the travel industry and

in particular her experience in relation to travel for the Hajj also convinces the

court that it was a condition of the contract that travel arrangements to be made by

the Defendant would that which did not infringe upon the entry requirements of

Saudi Arabia by the group travelling to that country for the specific purpose of

performing Hajj.

71. The court is supported in its findings by the fact that several enquires were made

by Mrs. Maharaj both by way of Timatic and through Mr. Rajah prior to travel.

These enquires could only be made for the purpose of ensuring that the

arrangement being made for travel via Riyadh was permissible because of the

fundamental importance of same. A breach of this term would therefore vitiate the

entire contract. The court therefore finds that this was known by the Defendant

who accepted the term to be a condition.

Issue 2

Was there a breach of the condition by way of innocent misrepresentation, negligent

misstatement or negligent misrepresentation

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The Submissions of the Defendant

72. Counsel for the Defendant submitted that it has put the Claimant to strict proof of

paragraph 7 of its Statement of Case in which it alleged that, “…in breach of the

Claimant’s contract with the Defendant, the said pilgrims were however denied

boarding upon Qatar Airlines on November 20, 2009, by reason of Saudi Arabia

regulations that all pilgrims arriving in the Kingdom of Saudi Arabia from

London, Heathrow for Hajj 2009 were required to fly direct from London

Heathrow to Jeddah where they were required to surrender their passports.”

73. It was further submitted that the Claimant has failed to prove this crucial aspect of

his case and the onus was clearly on him to so.

74. It was argued on behalf of the Defendant that Ms. Maharaj was simply instructed

to obtain tickets for travel to Hajj. Further, that the Claimant has not denied that

the checks undertaken by Ms. Maharaj were in fact done and that no prohibition

was discovered. As such it is the contention of the Defendant that the Claimant

cannot show that there was a breach of the contract between them without proof

of the regulation that the Claimant alleged was in place and which prevented the

pilgrims from transiting through Riyadh to get to Jeddah.

The Submissions of the Claimant

75. Counsel for the Claimant submitted that those pre-contractual representations

made by Defendant proved to be false by the reason given by Qatar Airlines

which was that the route sold to the Claimant was impermissible by virtue of

Saudi Arabian regulations. Further, that being denied entry onto Qatar Airlines

also proved that the representations were false. Additionally, Counsel for the

Claimant submitted that there was sufficient evidence by way of cogent

documentary and oral evidence presented by the Claimant that the Defendant’s

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representations were in fact false and therefore, the Defendant is liable not only

for misrepresentation but also for breach of the contract.

76. It was submitted that there was a preponderance of evidence that these assurances

were given to the Claimant before the contract was entered into and sufficient

evidence that the Claimant, his pilgrims and another group of pilgrims also

booked by the Defendant ran into problems when they attempted to board Qatar

Airlines. It was further submitted that the Defendant had to intervene to correct

the problem by booking the other pilgrims on an alternative route. The Claimant

also sought alternative accommodation for his pilgrims on Saudi Airlines.

77. Counsel for the Claimant argued that the Defendant failed to produce any

evidence of written confirmation from the Saudi Arabian Embassy that it was

permissible for the pilgrims to pass through Riyadh to get to Saudi Arabia.

Further, it was argued by the Claimant that Ms. Maharaj failed to produce any

cogent evidence that the purported Timatic search applied to the Claimant and the

pilgrims. That the only evidence on the purported Timatic search applicable to

Saudi Arabian regulation were assurances purportedly given by the Saudi Arabian

Embassy to Mr. Rajah which were repeated in the seating arrangement (see SS3

of the witness statement of the Claimant).

78. Accordingly, Counsel for the Claimant submitted that the natural implication of

this lack of evidence to support the defence, is that there was no such permission

given by the Saudi Consulate. Further, that there was no such communication by

the Saudi Consulate to Mr. Rajah as communicated to the Claimant before he

entered into the contract. It was further submitted that another natural implication

of the Claimant and his pilgrims being denied entry onto Qatar Airlines and the

other group of pilgrims being forced to transit through Beirut and then to Jeddah

and not through Riyadh, was that it was not perfectly acceptable for the pilgrims

to continue with the journey as booked by the Defendant and this was by virtue of

a Saudi Arabian regulation.

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79. It was submitted that the Claimant’s witness, Mr. Fazeel Mohammed gave

evidence as to what was told to him by the Qatar Airlines agents in London when

the pilgrims attempted to board Qatar Airlines. It was further submitted that this

evidence was consistent with the other evidence produced and is of probative

value in the absence of the airline agent giving evidence at trial and in the absence

of the Defendant providing any evidence from Mr. Rajah, Mr. Maharaj, Mr.

Rassy or any of the Saudi Arabian Embassy officials who were all involved in the

making of the contract.

80. Moreover, counsel for the Claimant submitted that a special relationship arose

between the Defendant and the Claimant because the Defendant’s agent, Ms.

Maharaj took it upon herself to give advice to the Claimant about choosing a

particular itinerary based on purported assurances given by the Saudi Arabian

Embassy. Therefore, it was contended that the Defendant communicated this

advice to the Claimant with the knowledge that it was likely to be acted upon and

was in fact acted upon by the Claimant in making the decision whether or not to

agree to a particular travel itinerary without independent inquiry.

81. Further, it was submitted that if the Court is minded to rule that there was

misrepresentation, then the onus is on the Defendant under section 3 of the

Misrepresentation Act to show that it had reasonable grounds to believe and did

believe up to the time the contract was made that the facts represented were true.

It was further submitted that such defence is not open to the Defendant as

nowhere in its pleadings does it plead such.

82. As such, the Claimant submitted that in light of the foregoing, he has discharged

his burden of proof on the balance of probabilities that there was a breach of

contract and/or negligent misstatement and/or innocent misrepresentation by the

Defendant entitling him to receive, amongst other things, damages.

The submissions of the Defendant in response

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83. Counsel for the Defendant submitted that the Claimant’s evidence is simply

insufficient to support his claim.

84. It was argued on behalf of the Defendant that the fact that the Defendant

attempted to render assistance to Claimant’s group of pilgrims and to the other

group having heard about the difficulties they were encountering cannot by itself

be relied upon to support a claim that the Defendant was negligent in some way.

It was further argued that the sole platform used to criticize the Defendant’s

efforts to ensure the route was permissible was the fact that the Claimant and his

pilgrims were prevented from boarding. That the Claimant failed to prove that

those efforts were either not taken or were negligently taken.

85. Counsel for the Defendant submitted that the Claimant is operating under the

misconception that the mere fact that there was a mishap or an incident,

automatically creates a cause of action. It was further submitted that the Claimant

must connect the mishap or incident to the Defendant and specifically identify

how the Defendant fell short of its duty in order to support a claim against it.

Finding

86. Firstly, the court finds that there was a clear representation on the part of the

Defendant that it was permissible for Hajj pilgrims to travel to Jeddah via Riyadh.

Whether this representation amounted to a misrepresentation is however a matter,

the finding on which is dependent on the quality of the evidence led in this case.

87. Secondly, although the Claimant makes his submissions with much

determination, the court is unable to agree with his assessment of the facts and

their impact on his claim. A fundamental ingredient of any finding of

misrepresentation is that the fact in respect of which the representation was made

must be proven to have been untrue. This is the position in respect of all

misrepresentations whether made fraudulently, carelessly or innocently. The first

26

hurdle is that of proof that the fact as represented was not that which was

represented. There can be no misrepresentation without a material untruth.

88. In that regard it is the finding of this court as follows;

a. The assertion and consequent action by unknown airline employees to

debar the group from embarkation on the basis that they will not be

allowed in Saudi Arabia and would be deported is grossly insufficient

to prove that there exists a law or policy or rule on the part of the

Kingdom of Saudi Arabia that restricts access of pilgrims to the Hajj

unless they travelled directly to Jeddah. Qatar Airlines is not the

Government or State of Saudi Arabia nor can their actions be

interpreted to be official acts of the Kingdom or of the Department of

Immigration. As a matter of common sense and everyday interaction,

Airline employees invariably get it wrong.

b. The fact that the other group that travelled on that day faced the same

action by Qatar Airlines is insufficient to create an inference that there

was such a policy, rule or law in force. This argument collapses on

itself when one considers that the airline was simply being consistent

with both sets of travelers. That fact does not and cannot add to

evidence of proof of such a policy, rule or law.

c. It would therefore be wholly improper and against the weight of the

evidence for this court to find that the mere fact of denial of entry

establishes that it is more likely than not that there exists such a travel

restriction. To do so would be to give effect to rife speculation in the

absence of relevant and cogent evidence. To so do would also be to

give inordinate weight to evidence of a third party who did not give

evidence in this case and for whose action no legal basis has been

demonstrated in evidence.

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d. That the onus lies on the Claimant to prove that the representation was

a false one; that the Claimant must do so by leading evidence which

either directly demonstrates such a restrictive policy, rule or law or by

sufficient evidence from which it can be inferred that such did in fact

exist at the time. This case is starved of such evidence.

e. At the highest the evidence presented in this case is in totality

equivocal. There is evidence on the part of the Defendant that Mrs.

Maharaj was guided by the information provided by the Timatic

system used by travelers to assess restrictions and also by her

conversation with Mr. Rajah.

f. Additionally, there is evidence that the Claimant in this case was

experienced in travel for the Hajj. In fact he testified in cross

examination that he is well known to the Embassy of Saudi Arabia as

he would usually obtain the Visas for his group from the Embassy in

Caracas Venezuela or Washington in the United States of America. It

is therefore passing strange that he would be unfamiliar with such a

restriction and would have to rely on the travel agent to make enquires

into same when he could easily have conformed same with the

Embassy where he was “known”. His acceptance of the particular

route through Riyadh leads the court to the inference that he not only

relied on the Defendant in making his decision but that he must of as a

matter of common sense relied on his own sources of information.

g. When all the evidence is accorded its proper weight, the court cannot

find that there existed a misrepresentation on the facts of this case

either directly or by inference.

89. Section 3(1) of the Misrepresentation Act of Trinidad and Tobago reads;

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“Where a person has entered into a contract after a misrepresentation has

been made to him by another party thereto and as a result thereof he has

suffered loss, then, if the person making the misrepresentation would be

liable to damages in respect thereof had the misrepresentation been made

fraudulently, that person shall be so liable notwithstanding that the

misrepresentation was not made fraudulently, unless he proves that he had

reasonable ground to believe and did believe up to the time the contract

was made that the facts represented were true.”

90. The first hurdle which a Claimant must cross when relying on section 3(1) is that

of proof of a misrepresentation. The gravamen of the section lies with the

imposition of an evidential burden on a Defendant to prove reasonable grounds

for his belief in the truth of his representation. In this case the Claimant has failed

to surmount the first hurdle and section 3(1) is therefore of no applicability.

91. As a consequence of the findings of the court, the third issue does not arise. The

claim will be dismissed and the Claimant will be ordered to pay to the Defendant

the prescribed costs of the claim based on the value of the claim being one for two

hundred and fifty thousand dollars ($250,000.00), in the sum of forty-six thousand

and five hundred dollars ($46,500.00).

Dated the 30th day of June 2016

Ricky Rahim

Judge