IN THE HIGH COURT OF JUSTICE BETWEEN JOCOBES COMPANY LIMITED AND

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE C.V. No BETWEEN JOCOBES COMPANY LIMITED Claimant AND COURTNEY S RACING SERVICE First Defendant JOHN COURTNEY DOOKIE Second Defendant Before the Honourable Mr. Justice Robin N. Mohammed Appearances: Mr. Terrence Bharath instructed by Mr. Imran Ali for the Claimant Mr. Nirad Samnadda-Ramrekersingh and Mr. Lemuel Murphy for the Defendants Decision in respect of Claimant s Evidential Objections and the Request for Judgment Pursuant to Part 68.7(1) of the Civil Proceedings Rules 1998

2 DECISION I. Introduction. [1] This matter concerns a claim for recovery of possession of a parcel of land and a commercial building upon it. On 11 August 2014, the claimant initiated a claim against the first and second defendants for recovery of possession of one lot of land situate at No. 84 Western Main Road, St. James, inclusive of a commercial building erected thereon more particularly described in a Deed Registered as DE (hereinafter referred to as the property in dispute ). The claim was made by fixed date claim form and pursuant to Part 68 of the Civil Proceedings Rules 1998 (CPR). A single affidavit of Ms. Lu-Ann Forbes was filed in support of the claim. [2] Both defendants entered appearances to the claim on the 19 August On the 17 September 2014, two affidavits in defence of the claim were filed, namely, the affidavit of the (i) second defendant and (ii) Roman Aquing. The defence to the claim is the same for both defendants. [3] At the first hearing of the Fixed Date Claim, counsel for the claimant made evidential objections to certain statements deposed to in the two affidavits filed by the defence. On the basis of the evidential objections, counsel for the claimant made an oral application to the court to strike out the statements (which are later specified in this decision) from the respective affidavits. Counsel for the claimant also submitted that pursuant to Part 68.7(1) of the CPR the Court ought to give judgment at this point in the proceedings on the ground that the defendants do not have a defence with a realistic prospect of success. [4] Having reviewed the law and applied them to the facts of the instant matter, I have concluded that there is merit in some, though not all of the claimant s evidential objections. Thus I have specified those statements, deposed to in the two respective affidavits filed by the defence, which are struck out from consideration in the affidavit evidence. Moreover, and in any event, I have concluded that pursuant to Part 68.7 of the CPR judgment is to be granted in favour of the claimant in this matter, as the defendants have not satisfied the court that any defence has been put forth which has a realistic prospect of succeeding in this claim for recovery of possession. [5] I have hereinafter canvassed the reasons for my decision. Page 2 of 27

3 II. Factual Background [6] The claimant is a duly registered company incorporated under the Companies Act 1. It is agreed by all the parties in the instant matter, that the claimant has since December 2009 to present been the title or legal owner of the property in dispute by virtue of Deed of Conveyance dated 14 December 2009 and registered as No. DE [7] The first defendant is a business registered under the Registration of Business Names Act 2. It is a Betting Office. The second defendant is presently the sole registered owner of the first defendant. The issues in this claim are born from the fact that the first defendant is presently in sole occupation and possession of the property in dispute which is owned by the claimant. [8] Lu-Ann Forbes, the Managing Director of the claimant, deposed that the claimant was originally in possession of the property in dispute in November The claimant had at that time held the property in dispute as a lessee under a long term lease as evidenced by Deed No. DE dated 20 November While the claimant was in possession of the property in dispute, a change of ownership of the claimant took place. In October 2009, Michael Charles purchased the claimant from its former directors, thenceforth becoming the owner and sole shareholder of the claimant. The second defendant also became the secretary and a director of the claimant. [9] Both parties deposed that in December 2009 Michael Charles then used his own finances to purchase the property in dispute and further put the property in dispute in the name of the claimant which came to hold the legal title of same by the aforementioned Deed of Conveyance dated 14 December 2009 and registered as No. DE However, the claimant was then relocated to No. 85 Queen Street, Port-of-Spain, even though it maintained ownership of the property in dispute. The facts that follow are largely in dispute. [10] According to the affidavit evidence of Ms. Forbes for the claimant, when Michael Charles acquired ownership of the claimant, he told her that he intended to use the property in dispute to establish a betting shop for horse races. Ms. Forbes further deposed that in her 1 Chap. 81:01. 2 Chap. 82:85. Page 3 of 27

4 capacity as Michael Charles common law wife, she was personally aware that Michael Charles then demolished the structure which previously stood on the land of the property in dispute and financed the construction of the commercial building which today stands upon the property in dispute. [11] Ms. Forbes averred that in 2009 Michael Charles discussed with her and then agreed to allow the property in dispute to be used by the first defendant as a gambling and betting shop. She noted that the first defendant was originally a partnership between Michael Charles and the second defendant that was registered on 30 September 2011, and further noted that prior to the formation of the partnership the second defendant was removed as a director and secretary of the claimant on 14 February She stated that no formal document was executed in relation to the permission that the first defendant received to occupy the property in dispute and specified that the first defendant occupied the premises as a licensee determinable at any time by the claimant. According to Ms. Forbes, after the death of Michael Charles on 11 December 2013, the first defendant continued operations at the property in question. No rent was ever paid to the claimant, and Ms. Forbes insisted that no tenancy existed between the claimant and the defendants. It is in those circumstances that Ms. Forbes deposed that the claimant resolved to end the licence of the first defendant and recover possession of the property in dispute. [12] However, the second defendant challenged Ms. Forbes version of the facts. The second defendant firstly insisted that Ms. Forbes was not the common law wife of Michael Charles. The second defendant deposed that Michael Charles was his close friend of many years and he never knew Michael Charles to have cohabited with Ms. Forbes. Moreover, the second defendant deposed that after the property in dispute was purchased by Michael Charles in the name of the claimant, the second defendant then took charge of everything related to the setting up of the first defendant as was agreed by Michael Charles to be the intended use for the property in dispute. [13] To this end, in contrast to what was deposed by Ms. Forbes, the second defendant deposed that the reason he ceased to hold office was not because he was removed in any negative sense but because he wanted to concentrate more on the set-up and operations of the first defendant. Thus, according to the second defendant it was he who had the former building Page 4 of 27

5 demolished, sought the relevant approvals, and designed, constructed and outfitted the commercial building that presently houses the first defendant on the property in dispute. [14] He therefore stated in his affidavit that it was untrue to say that Michael Charles agreed to allow the property in dispute to be used by him to carry out the business of the first defendant. Rather, in summary, the second defendant emphasised that the property in dispute was identified and purchased for the sole purpose of the operation of the first defendant which was set up to operate in partnership with Michael Charles. The second defendant deposed that funds were provided by both himself and Michael Charles for the various activities necessary for the set up of the first defendant including the construction of the building to house the business. He was adamant that it was misleading for Ms. Forbes to imply that Michael Charles had solely funded and was responsible for those activities. [15] According to the second defendant, at all material times, he and Michael Charles operated the first defendant as a partnership. The second defendant admitted that no formal documentation was done to outline the agreed arrangement under which the partnership would operate. However, he swore that the agreed arrangement was that: a) the first defendant would be housed at the property in dispute; b) the costs of equipping and outfitting the building would be eventually set off/paid from the proceeds of the first defendant; c) the second defendant would run and operate the business and be paid a salary for same (though the second defendant stated that he never took a salary); d) the equipment, furniture, fittings and any other items used by the first defendant would be owned by the partnership when paid off; e) that both partners would share the profits and assets equally subject to the settling of the costs of the equipment, furniture, fittings etc and prior to such settlement they would share profits on a 25% (second defendant) 75% (Michael Charles) basis with the costs being dealt with from the 75%; f) the proceeds from the business were to be deposited in an account held by Michael Charles which was initially in the name of Michenn Ltd and then changed to Micjay Ltd (a company owned by Michael Charles); such deposits to be done via a linx machine; and Page 5 of 27

6 g) Michael Charles would fund an overdraft facility in respect of the annual operation of the business. [16] The second defendant went further to state that he provided approximately $910, to set up the first defendant and the activities associated with it. Additionally, the second defendant alleged that there was an arrangement that rent could be paid in the amount of $20, per month in However, he stated that that arrangement was alleged to be at the second defendant s discretion, but then Michael Charles passed away in December [17] The second defendant did not dispute that after the death of Michael Charles in December 2013, the second defendant continued the operations of the first defendant at the property in dispute, though he did so as a sole registered owner of the first defendant. He added that although he had not paid the $20, rent, during the period 5 February 2014 to 16 May 2014 monies were still paid into the account of Micjay Ltd via a linx machine to which he had no access. Such monies totalled $141, The second defendant emphasised that during that period Ms. Forbes was a director of Micjay Ltd. Therefore, the second defendant considered that to be the rent for the building and he therefore argued that it would be untrue to say that there was no tenancy in existence. [18] Furthermore, the second defendant stated that Ms. Forbes occasionally came to the first defendant before Michael Charles died to collect money from the business. He stated that in January 2014, Ms. Forbes came and informed him that the rent would be varied to $25, He further stated that Ms. Forbes had, however, asked him to accept a receipt of $15, while she would not issue a receipt of the remaining $10, The second defendant said that while he had no issue with the variation in rent, he did not agree to the manner of issuing receipts that was proposed by Ms. Forbes. [19] In her reply to the second defendant s affidavit, Ms. Forbes denied ever having any such conversation with the second defendant concerning the varying of rent. She insisted that the second defendant neither paid nor offered any rent to her for occupation of the property in dispute. Ms. Forbes was firm in her position that the defendants were not tenants and there was never any agreement made to that effect. Page 6 of 27

7 [20] Rather, Ms. Forbes deposed that in or around February 2014, she notified the second defendant of the decision of the claimant to determine the licence which had been granted to the first defendant to permit occupation of the property in dispute. She stated that the second respondent stated that he would not vacate the property in dispute. The second defendant, however, denied ever being aware of any resolution of the claimant to determine any licence as alleged and noted that no evidence was exhibited in support. Moreover, he was adamant that Ms. Forbes never visited the premises in February 2014 to inform him of any such resolution or to tell him to vacate the premises. [21] Nonetheless, Ms. Forbes deposed that in line with her account of the event, when the defendants refused to vacate the property in dispute, she consequently sought legal advice and was told that the defendants had no legal right to remain in occupation of the property in dispute after the licence had been determined. Subsequently, on 26 June 2014, Ms. Forbes retained the services of a registered bailiff, Mr. Edward Soon, to evict the defendants. On that same date, Mr. Soon was initially able to take possession of the property in dispute but according to Ms. Forbes, officers of the St. James Police Station then came to the property in dispute and without any warrant, entered the building and allowed the second defendant to re-take possession after the officers declared that Mr. Soon s actions were illegal. 3 [22] In a letter dated 27 June 2014, counsel for the claimant wrote the first and second defendant to inform them that they had no right to continue in occupation of the property in dispute and requiring them to vacate immediately. The defendants refused to vacate. Rather, on 2 July 2014 counsel for the defendant responded to the claimant s letter stating that the defendants had an equitable interest in the property, and that the right of the claimant was therefore subject to that interest. [23] The second defendant noted in his affidavit that he currently has eighteen employees working for the first defendant. He emphasised that should the claimant repossess the property in dispute, he would be forced to close the business, retrench the employees and lose all the time, energy and money he invested and contributed to same. 3 Though it is not necessary to further detail the events concerned with the attempted repossession of the property in dispute by the claimant, it is noted that the event was primarily witnessed by Mr. Roman Aquing (the Manager of the first defendant) and thus deposed to in detail in his affidavit. Page 7 of 27

8 III. Issues Arising for Decision [24] In light of the affidavit evidence as well as the oral and written submissions before the court, the two main issues which have arisen for decision are: A. whether certain statements deposed to in the two affidavits filed by the defendants are to be struck out in light of the evidential objections raised by counsel for the claimant; and B. (independent of the first issue) whether judgment ought to be given in favour of the claimant, at this stage in the proceedings, on the ground that the defendants have not satisfied the court that they have a defence to the claim which has a realistic prospect of succeeding. I now address each of these issues in turn. IV. The Law and its Application to the Instant Matter A. Whether certain statements deposed to in the two affidavits filed by the defendants are to be struck out in light of the evidential objections raised by counsel for the claimant (i) Submissions [25] The claimant objected to statements made in paragraphs 8, 10, 16, 19, 25, 27, 28, 29 and 30 of the affidavit of the second defendant, and additionally, objected to statements made at paragraphs 7, 8, 9, and 10 of the defence affidavit of Roman Aquing. The grounds for these objections included, that: (i) the deponent had no personal knowledge of the information and failed to provide the source of the information he purported to provide, nor had he provided the basis on which he believed that information to be true; (ii) the deponent sought to give his opinion on matters of law which he was not competent to do; (iii)the purported statements are hearsay evidence prepared by a person or entity who is not before the court, without there being any authentication of the purported statements; and Page 8 of 27

9 (iv) in deposing to certain statements/exhibits, the deponent failed to provide the important particulars related to his claim, therefore making the statements/exhibits irrelevant to the proceedings. Counsel for the claimant premised these evidential objections on the contention that the instant proceedings which are pursuant to Part 68 of the CPR were final proceedings, and therefore certain admissible hearsay ought not to be allowed in the same manner as it would be in interlocutory matters where the trial process would give the parties an opportunity to further cross-examine on matters deposed to or to file supplemental affidavits on matters deposed which required further clarification. [26] In reply to the claimant s evidential objections, the defendants firstly disagreed that the instant proceedings which are pursuant to Part 68 of the CPR were final proceedings. Counsel for the defendants submitted that proceedings pursuant to Part 68 of the CPR are interlocutory proceedings. Counsel contended that Part 68.7(1) of the CPR gives the court jurisdiction to give a final judgment in circumstances whereby the defendant does not satisfy the court that he has a defence with a realistic prospect of success. According to counsel for the defendants, the fact that Part 68.7(1) gives the court jurisdiction to give final judgment in those circumstances, does not of itself make proceedings pursuant to Part 68 final proceedings because, in circumstances in which the defence has a realistic prospect of success, in accordance with Part 68.7(3) of the CPR the court would have to give directions for the matter to proceed as if the hearing were a case management conference, that is, the hearing of the matter would proceed as would normal interlocutory proceedings. [27] On that premise, counsel for the defendant contended that certain admissible hearsay ought therefore to be allowed by the court so as to enable the defendants to establish their defence. The acceptance of the truth of the statements was really a question to be decided by the court regarding the weight to be given to the statements. Additionally, counsel for the defendants contended that when the two respective affidavits are taken as a whole and within context, it is clear that some of the statements which were objected to were indeed within the personal knowledge of the deponents. Moreover, counsel for the defendants submitted that some of the statements objected to by the claimant deposed information which was not in dispute and therefore ought not to be struck out. Page 9 of 27

10 [28] Importantly, however, counsel for the defendants in his oral submissions at the hearing held on 5 November 2014, admitted and agreed that the following statements which consist of some of the statements objected to by the claimant, are to be struck out from the respective affidavits: From the affidavit of the second defendant (i) the last sentence of para. 8 Further, his staying by his ex-wife is inconsistent with any such co-habitational relationship ; (ii) the entirety of para. 10 It is however incorrect to say that the Claimant is the owner of the building thereon as alleged ; and (iii) The last sentence of para. 28 It was therefore untrue to say that there was no tenancy in existence. From the affidavit of Roman Aquing (iv) the latter part of the second sentence of para. 8 that states...and I am aware that Courtney Dookie was responsible for erecting the building and setting up the business ; (v) the last two sentences of para. 9 I am aware that Courtney Dookie did not have access to the funds in this account. Further, I am aware that after Michael Charles died, Ms. Forbes was the only person with access to that account ; and (vi) the last sentence of para. 10 I am also aware that monies would have been accessed by Michael Charles from the Micjay account as aforesaid. (ii) Law and application (a) Preliminary Issue to Evidential Objections [29] The preliminary issue to the evidential objections is whether proceedings for possession of land under Part 68 of the CPR should be considered interlocutory or final proceedings. The importance of this determination is its effect on the statements that would be admissible in the affidavit evidence filed in support of the proceedings. To this end, Part 31.3 of the CPR provides guidelines as to the content of an affidavit, as follows: 31.3 (1) The general rule is that an affidavit may contain only such facts as the deponent is able to prove from his own knowledge. (2) However, an affidavit may contain statements of information and belief Page 10 of 27

11 (a) where any of these Rules so allows; and (b) where it is for use in any procedural or interlocutory application or in an application for summary judgment, provided that the source of such information and the ground of such belief is stated in the affidavit. (3) The court may order that any scandalous, irrelevant or otherwise oppressive matter be struck out of any affidavit. (4) No affidavit containing any alteration may be used in evidence unless such alterations have been initialled by the person before whom the affidavit was sworn. [Emphasis added] [30] Thus, consistent with Part 31.3(1), hearsay evidence is generally not allowed in affidavit evidence. The exception to that rule is provided at Part 31.3(2). That exception is that hearsay evidence that constitutes statements of information and belief will be permitted, provided that the source and grounds for such belief are stated, where the rules allow for its use in: (i) a procedural application; (ii) an interlocutory application; or (iii) an application for summary judgment. [31] Proceedings under Part 68 are undoubtedly neither a procedural application nor an application for summary judgment as dealt with at Part 15. Further, I am not of the view that it is to be considered an interlocutory application for that would defeat its nature as a fixed date claim and the purpose of providing specifically for summary proceedings for possession of land. I am of the view that summary proceedings for possession of land under Part 68 of the CPR are to be treated in the same manner as final proceedings. Therefore, affidavits in support of such proceedings should contain only such facts as the deponent is able to prove from his own knowledge. [32] The relevant part of Part 68 provides as follows: 68.7 (1) At the hearing the general rule is that the court must give judgment unless there is a defendant who attends and satisfies the court that he has a defence with a realistic prospect of success. (2) Nothing in this Part prevents the court from ordering possession to be given on a specified date. (3) If judgment is not given the court must give directions as if the hearing were a case management conference. Page 11 of 27

12 (Parts 25 to 27 deal with case management conferences) [Emphasis added] [33] Thus, when the whole Part is considered, Part 68.7(1) mandates that the court must give final judgment at the first hearing unless there is a defendant who satisfies the court that he has a defence with a realistic prospect of success. Part 68.7(3) then makes it clear that if the court concludes that the defendant has a defence with a realistic prospect of success then the court must proceed to give further directions in the matter as if the hearing were a case management conference. It is the latter provision that counsel for the defendant has premised his contention that Part 68 proceedings are interlocutory. I cannot, however, agree that the inclusion of Part 68.7(3) would have had the effect of making proceedings under Part 68 interlocutory proceedings. [34] Part 68 of the CPR has much of the same effect as Order 94 of Trinidad and Tobago s former Orders and Rules of the Supreme Court 4 (hereinafter referred to as the Old Rules ), which Part 68 replaced. Under the Old Rules, the relevant parts of Order 94 concerning summary proceedings for possession of land, provided: 1. Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order (1) A final order shall not be made on the originating summons except by a Judge and shall, except in the case of urgency and by leave of the Court, not be made less than 7 clear days after the date of service. [Emphasis added] [35] In respect of the type of proceedings effected by Order 94, the court in Gilmore Cruickshank v Margaret Cruickshank and anor 5 commented that such proceedings were summary in nature and therefore the hearing of an application under Order 94 was tantamount to the initiation of the trial itself. Armour J (as he then was) explained at page 2 of his judgment: Applications under Order 94 are summary by name and in their nature. They are to be heard and dealt with expeditiously. Order 94 provides an exceptional machinery for possession of land, to be utilized jealously. The 4 RSC HCA No. S451 of 1998 Page 12 of 27

13 White Book 1995 [The Supreme Court Practice 1995 Volume 1 page 1622] tells us of the scope of the order. In their commentary on the equivalent English Rule, Order 113, the authors tell us that its...application...is narrowly confined to the particular circumstances described in rule 1, i.e. to the claim for possession of land which is occupied solely by a person or persons who entered into or remain in occupation without the licence or consent of the person in possession or of any predecessor of his...this Order also applies to a person who has entered into possession of land with a licence but has remained in occupation without a licence...the Court...has no discretion to prevent the use of this summary procedure where the circumstances are such as to bring them within its terms, e.g. against a person who has held over after his licence to occupy has terminated.. And then at page 4 to 5 he concludes, For these reasons they [the defendants] contend that issues of equity and estoppels have arisen and that this application [for summary possession of land by originating summons] must fail. [The defendants contended it] must be sent to trial. I am afraid this is the trial. By summary process. I have considered the evidence before me on affidavit. I find it less than conceivable that the Plaintiff and Viola Cruickshank have gone to the trouble they did in effecting the transfer, for valuable consideration, in order to provide the Defendants with a home for the rest of their lives. [Emphasis added] [36] There is little difference between proceedings for summary possession of land by originating summons under Order 94, and proceedings for summary possession of land by fixed date claim form under Part 68. It is true to say that an originating summons under Order 94 was an originating process and not an interlocutory application. Proceedings under Part 68 which are brought via fixed date claim form are much the same. The rephrasing of the rule in the manner expressed in Part 68.7 of the CPR merely acknowledges the case management function of the court under Parts 25 and 26 of the CPR which came into being with the implementation of the new civil proceedings rules. However, the effect of the fixed date claim form, like the originating summons, is to commence proceedings and the affidavits in support provide evidence in the proceedings. Thus, I agree with counsel for the claimant, that it is as though the affidavit evidence is being given to support the claim as a witness would in the witness box and as a consequence, consistent with Part 31.3(1) of the CPR only evidence which the deponent is able to prove from his own knowledge is admissible. [37] It therefore follows that the exceptions provided at Part 31.3(2) of the CPR, to the general rule in respect of hearsay evidence, do not apply to the instant proceedings. Thus, a Page 13 of 27

14 deponent in the instant proceedings ought not to depose to statements of information and belief and any such statements are to be struck out from the affidavits. And I so hold. (b) The evidential objections [38] Bearing the aforementioned principles in mind, I now turn to those evidential objections which were made by the claimant on the basis that the two deponents for the defendants deposed to information that was not within their personal knowledge and further failed to provide the source of the information deposed as well as the basis upon which the information was believed to be true. [39] Regarding the objections to the statements in paragraphs 7 to 10 of the affidavit of Roman Aquing, counsel for the claimant contended that Roman Aquing failed to provide the source of the information he purported to give, nor had he provided the basis on which he believed that information to be true. The claimant s objections were premised on the fact that Roman Aquing deposed that he only worked at the first defendant during the period 12 June 2013 to 15 July However, he does not state how he came to amass all the information, some of which may have taken place prior to his employment with the first defendant. The contention is, therefore, that Roman Aquing had no personal knowledge of the information that is being objected to in paragraphs 7 to 10. The following information is what the court has been asked to strike out on this basis: (i) para. 7 - I am aware that [the first defendant] was initially operated as a partnership between [the second defendant] and Michael Charles up until the death of Michael Charles in December,2013. Subsequently [the second defendant] operated the business solely ; (ii) para. 9.The account that these monies were deposited into was in respect of the linx account in the name of Micjay Ltd., a company in which I am aware Michael Charles was the sole shareholder and to which he had sole access ; and (iii) para. 10 I am aware that [the second defendant] and Michael Charles had an arrangement for the running of [the first defendant]. Due to their close relationship, I am aware that Michael Charles let [the second defendant] essentially run the business on his own without any input aside from monetary injections from time to time but mainly at the beginning of the year to assist with licence fees and operating capital. Page 14 of 27

15 [40] I disagree with counsel for the claimant that these matters were not within the personal knowledge of Roman Aquing. From the outset in his affidavit, Roman Aquing deposed that he was the former Manager of the first defendant. This, no doubt, would have put him in a position in which he is likely to have been knowledgeable of the matters deposed in the aforestated paragraphs. As expressed in the case of United Engineering Services Ltd v Hafeez Karamath Ltd 6 at paras. 3 to 6: 3. Companies act through directors, officers and employees the company s representative, can give evidence of matters within his personal knowledge or based on statements within the records of the company. Some of the statements made in his witness statement can be from his own knowledge from the time he was employed while other evidence can be from the records. He is not required to have been an employee at the material time. 5. This witness can also give a supplemental witness statement or amplify his oral evidence in chief to indicate how he comes to give the evidence. He can be cross-examined on how he has come to know of the evidence. The court cannot presume he cannot give the evidence because he does not say if it is from his personal knowledge or if it is obtained from an examination of the records of the company or both. Of course, it would be better to ensure clarity that witnesses specify these matters in their witness statements. This will place the evidence in its proper context without the court having to wait on cross-examination to discover the true source of the evidence and to be able to ascribe the requisite weight to it. 6. Further, since a company acts through it directors, officers and employees the evidence of the company s representative must necessarily to an extent be considered in different terms from an ordinary witness who gives evidence of things seen, heard or done. [Emphasis added] [41] Therefore, I am of the view that Roman Aquing could have deposed to matters within his personal knowledge during the time he was employed with the first defendant, as well as he could have deposed to evidence from the records of the first defendant to which, as Manager of the first defendant, he would most likely have had access. I have considered that each of the statements made by Roman Aquing, which were objected to, consisted of information which Roman Aquing had the capacity to depose to as a former Manager of the first defendant. Thus, I do not agree that the afore-stated statements specified in relation to the affidavit of Roman Aquing should be struck out. The truth of these statements and the reliability of his 66 CV Ruling on Evidential Objections dated 17 June 2013 per Boodoosingh J. Page 15 of 27

16 knowledge are different matters which can be tested under cross-examination, if the case reaches that stage. [42] As regards the affidavit of the second defendant, the claimant also raised evidential objections to the following statements on the basis that it was not within the personal knowledge of the deponent and no source of the information was stated: (i) Para. 8.Michael Charles generally spent most of each year outside of Trinidad. In fact, while in Trinidad, Michael Charles lived in his own house at Anderson Terrace, Maraval and Ms. Forbes lived at No.5 Middle Street, St. James. Objections were also raised to lines 12 to 15, While there [in Florida] he also had an apartment near to the hospital where he would stay with his ex-wife Jennifer Charles when he was not at the hospital. When he was in the hospital she would stay at that apartment. He would also stay by his daughter Michelle in Coconut Grove, Miami and Jennifer Charles would stay there while he was there. When his daughter moved residence, he acquired the apartment referred to herein. Moreover, further objections were made to lines 19 and 20 Had there been any existing common law relationship, I would have known. I would have seen evidence of co-habitation when I visited Michael Charles and he would have told me - as this is evidence within the contemplation of another person who is now deceased and was clearly based on conjecture. (ii) Para. 19 Michael Charles wanted to remain a silent partner as he did not want the other betting offices to know his involvement in the venture. (iii)para. 28 During this period Ms. Forbes was a director of Micjay Ltd. and would have access and control of this account. (iv) Para. 29 the phrase and considered that she would have access to such money from the aforesaid Micjay account in any event. [43] I am of the view that with respect to the statements objected to in paragraph 8 as specified, the deponent has satisfied the court in his affidavit that information regarding the relationship, whereabouts and living arrangement of Michael Charles may have been within his personal knowledge. This is so as the deponent also deposed at paragraph 8 that he had a close and long standing relationship with Michael Charles and stated that he visited Michael Charles many times in the United States where, according to the deponent, Michael Charles spent most of his year. Therefore, I can find no grounds for striking out those statements at paragraph 8 Page 16 of 27

17 where the deponent deposes of his personal knowledge of the living arrangements and relationship whereabouts of Michael Charles. [44] However, I agree with the claimant that the statement at the end of sentence 20 of paragraph 8 which states and he would have told me, ought to be struck out as it is indeed evidence which is within the contemplation of another person, namely, Michael Charles. Despite the relationship of the deponent with Michael Charles, I am not convinced from the context of the affidavit that the deponent shared the type of relationship with Michael Charles, in which it could be assumed that he could accurately depose what information Michael Charles is likely to have shared with him. [45] I also agree with counsel for the claimant, that the statements specified at paragraphs 19, 28 and 29, as specified above, do not constitute information which is likely to have been in the personal knowledge of the deponent and therefore those statements are to be struck out from the affidavit. The following statements are therefore to be struck out of the affidavit of the second defendant: (i) Para. 19 Michael Charles wanted to remain a silent partner as he did not want the other betting offices to know his involvement in the venture. (ii) Para. 28 During this period Ms. Forbes was a director of Micjay Ltd. and would have access and control of this account. (iii)para. 29 the phrase and considered that she would have access to such money from the aforesaid Micjay account in any event. [46] The claimant also raised evidential objections on the basis that the defendant sought to give his opinion on matters of law, which he was not competent to do. The statements in issue are: (i) Para. 8 Further she was not the common law wife of Michael Charles. Michael Charles never cohabited with Ms. Forbes as required to establish a common-law relationship or lived together with her for that matter ; (ii) Para He had other Betting offices in Queen Street, Port of Spain, Chaguanas and San Fernando. While he was the owner of these other Betting Offices, he did not actually operate them as he hired experienced people to so do and he would basically collect a share of the profits of same - as second defendant is giving his opinion of what amounts to ownership of betting office; and Page 17 of 27

18 (iii) Para. 30 I am advised by my attorneys-at-law and verily believe that even though a partnership dissolves upon death of a partner that does not preclude the continuation of the business previously conducted by the partnership - as second defendant purported to testify on a legal issue that is the effect of death of a partner on a partnership and he is not competent to do so. [47] I am of the view, that the only one of these statements, in which it appears that the deponent sought to make a conclusion on the law, and which is to be struck out, is that part of the statement at paragraph 8 that I have underlined, which states as required to establish a common law relationship. [48] The claimant also raised objections in respect to the inclusion of certain exhibits to the affidavit of the second defendant. The first of the exhibits objected to were the financial statements exhibited as JCD8 and referred to at paragraph 25. The reason for the objection was that the exhibit constituted hearsay evidence prepared by a person who, or entity that, is not before the court, without there being any authentication of the purported statements. Similar objection has also been taken to the inclusion of the schedule exhibited as JCD9 and referred to at paragraph 27, which the claimant has further stated was prepared using documents which are not before the court and which the deponent has not produced. I agree with counsel for the claimant that these exhibits are to be struck out. In any event, little assistance is gained by the court from review of these exhibits. Particularly as they relate to the manual record of the linx transactions as well as the statement which the deponent stated was prepared by his accountant. There is no details as to the person who, or institution which, prepared those documents. The exhibits bear no name, stamp, mark or signature of the maker so as to enable the court to properly identify their source. Moreover, as regards the numerous merchant statements that have been exhibited, the nature and purpose of the transactions are not identifiable from a review of the statements. Little to no assistance is therefore derived from exhibits JCD8 and JCD9 and I agree with counsel for the claimant that the documents should be struck out. [49] The claimant further objected to exhibit JCD10 which is referred to in paragraph 27 of the second defendant s affidavit. The ground for the objection was that the deponent failed to identify whether any of the purported cheques contained any evidence of expenditure on the property in question as no particulars are provided to relate the purported cheques to his claim. Page 18 of 27

19 Therefore, the claimant contended that these cheques were irrelevant to the proceedings. The grave difficulty experienced by the claimant in relating these cheques to the instant claim for possession, was similarly experienced by the court. The cheques simply state to whom they were made payable and the amounts that were made payable. The court is at a lost in determining to what event in the claim the cheques are relevant simply by looking at the cheques without more. However, the deponent has deposed that the cheques represent his contribution to the set up of the first defendant and the activities associated with same. I am of the view that the cheques are therefore to be viewed in light of the deponent s statements at paragraph 27 of his affidavit. Although the particularising of the cheques would have greatly assisted the court in determining their relevance to the claim, in my opinion, satisfactory information has been given in these proceedings so as to save exhibit JCD10 from being struck out. In a review of the evidence, it would be a question of what weight should be attributed to the evidence exhibited at JCD10. [50] Finally, the claimant objected to the statement made at paragraph 28 as follows: (i) Para. 28 We had an arrangement that rent could be paid in the amount of $20, per month in That was left at my discretion. The objection was premised on the fact that the deponent failed to particularise with whom he had the alleged arrangement and therefore the sentence had no value, especially so, as the agreement was not with the owner of the building, the claimant herein. I disagree with this objection. It is clear from the context in which the statement was deposed, that the deponent was referring to Michael Charles in his capacity as owner of the claimant which owned the property in dispute. [51] The above represents my decision on those statements deposed to in the two affidavits, filed by the defendant, which are to be struck out. I now turn to the second issue which arose for decision. B. Whether judgment ought to be given in favour of the claimant, at this stage in the proceedings, on the ground that the defendants have not satisfied the court that they have a defence to the claim which has a realistic prospect of succeeding. Page 19 of 27

20 (i) Submissions [52] The defendants affidavits before the court originally appeared to raise the defence of a tenancy arrangement to which the claimant s right to possession was subject. However, in the further written submissions of counsel for the defendants it was submitted that the following defences were disclosed in the affidavits filed by the defence: a. the existence of a constructive trust in the defendant s favour; b. the existence of a resulting trust in the defendant s favour; and c. proprietary estoppel. [53] In response to the defences put by the defendants, counsel for the claimant contended that the defendants do not have a defence to this claim which has a realistic prospect of success, and therefore, the court must give final judgment in favour of the claimant pursuant to Part 68.7(1) of the CPR. According to counsel for the claimant, it was originally thought from the reading of the affidavits filed by the defendants that the defendants were alleging that a tenancy existed, but the defendants had not proffered any evidence that pointed to the existence of a tenancy arrangement between the claimant and the defendants. [54] Counsel for the claimant further contended that the defence pertaining to a tenancy arrangement which had originally been suggested in the defendants affidavits was completely inconsistent with the new defences put in the defendants submissions which all concerned the holding of an equitable interest. It is the claimant s contention that there is no evidence to support the existence of a constructive trust, resulting trust or proprietary estoppel and firmly contends that those defences have been completely misconceived by the defence. Counsel for the claimant noted that in any event, the defendants could not rely on equitable defences as they had not come to equity with clean hands. To this end, counsel for the claimant submitted that the second defendant had deposed to originally operating the first defendant as a partnership which was illegal and inconsistent with regulation 14(c) of the Gambling and Betting (Licences) Regulations made pursuant to the Gambling and Betting Act 7. 7 Chap. 11:19. Page 20 of 27

21 (ii) Law and Application [55] In determining whether the defendants have a defence which has a realistic prospect of success I have considered the established principles outlined in the Court of Appeal decision of Western Union Credit Union Co-operative Society Ltd v. Ammon 8 : (i) The court must consider whether the defendant has a realistic as opposed to a fanciful prospect of success: Swain v Hillman [2001] 2 All E.R. 91; (ii) A realistic defence is one that carries some degree of conviction. This means a defence that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] E.W.C.A. Civ 472 at [8]; (iii)in reaching its conclusion the court must not conduct a mini-trial : Swain v Hillman; (iv) This does not mean that the court must take at face value and without analysis everything that a defendant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid products v Patel at [10]; (v) However, in reaching its conclusions the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No.5) [2001] E.W.C.A Civ 550; (vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 ltd [2007] F.S.R. 63. [56] On an application of these principles, I cannot find that the defendants have any defence which has a realistic prospect of success in this claim for recovery of possession of land. The four defences proffered were: (a) (b) (c) (d) that a tenancy agreement existed; the existence of a resulting trust in favour of the defendants; the existence of a constructive trust in favour of the defendants; and/or proprietary estoppel. 8 Civ. App. No.103 of 2006 [3] per the judgment of Kangaloo JA Page 21 of 27

22 (a) Tenancy agreement [57] Although the existence of a tenancy agreement appeared to be the original defence derived from the affidavits filed on behalf of the defendants, they appeared to have wholeheartedly abandoned this defence in their written submissions as no mention was made of it. In any event, for completeness, I nonetheless considered the prospects of that defence succeeding in this claim. [58] To prove the existence of a tenancy agreement, the defendants, at the very minimum, would have to establish the terms of the agreement made between themselves and the claimant, that is, to pay a specified sum of rent as consideration to remain in the property in dispute for a specified lease period. The defendants have, however, fallen short of proving that any rent or lease period was agreed or even implied by conduct. The second defendant merely deposed to there being an arrangement that he could start paying rent in the year 2014 in a sum of $20,000. He went on to depose that the payment of that rent was at his discretion and that he therefore never paid it. Moreover, he suggested that there was no agreement for the payment of the rent when he further alleged that Ms. Forbes discussed the variation of rent with him (a discussion which Ms. Forbes strongly denied in her affidavit in reply on the basis that the payment of rent was never considered nor discussed). [59] The second defendant also deposed that although he had not paid the $20, rent, during the period 5 February 2014 to 16 May 2014 monies were still paid into the account of Micjay Ltd via a linx machine to which he had no access. Such monies totalled $141, On this basis, the second defendant emphasised that during that period Ms. Forbes was a director of Micjay Ltd and would thus have had access and control of that account. Therefore, the second defendant said that he considered that money to be the rent for the building. However, no evidence was given as to whether Ms. Forbes indeed had access to that said account and whether she was aware of the rent arrangement. [60] Certainly, the evidence put forward by the defendants is insufficient for a court to find that there was an agreed rent arrangement in place between the two parties to this claim. Inevitably it would be further impossible for the court to deduce the period of the alleged existing lease from the evidence. It is thus of no surprise that the defendants appeared to have Page 22 of 27