IN THE HIGH COURT OF JUSTICE. Between DE VERTEUIL DANIEL VIVET HARRY DOWAGA DANIEL THERESA DANIEL

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO CV No IN THE HIGH COURT OF JUSTICE Between DE VERTEUIL DANIEL VIVET HARRY DOWAGA DANIEL THERESA DANIEL 1 st Claimant 2 nd Claimant 3 rd Claimant 4 th Claimant Administrator ad Litem of the state of MITCHELINE DANIEL, deceased 5 th Claimant CURTIS DANIEL Administrator ad Litem of the estate of ELOZIA DANIEL, deceased 6 th Claimant And RUTHVEN DANIEL Executor of the estate of the deceased LEIGH HUNT DANIEL Also know as LEE HUNT DANIEL or LEEHUNT DANIEL Defendant Before the Honourable Mr. Justice Frank Seepersad Appearances: 1. Ms. Pariagsingh holding for Ms. Ramjit for the Claimants 2. Ms Palackdharry Singh for the Defendant 3. Mr. Peterson SC instructed by Ms. Palackdharry Singh for the intended Defendant Date of Delivery: 8 th April, 2014 **************************************** Page 1 of 6

2 REASONS 1. Before the Court for its determination was a notice of application dated the 18 th January, 2013, in which the applicant Ms. Deborah Moore-Miggins (the applicant) sought to be added as a Defendant to the proceedings pursuant to Part 19.2(3) (a) and (b) of the Civil Proceedings Rules, 1998 as amended. 2. In the instant matter, the claimant sought inter alia A declaration that the Certificate of Title issued on the 18 th August 2003 under the provisions of the Real Property Ordinance Ch. 27 No. 11 be cancelled. In her re-amended Statement of Case, the Claimant pleaded that a consent dated 27/08/1990 and an affidavit dated 22/01/1992 which purportedly was signed by her was in fact fraudulent and that she never signed same. 3. The applicant submitted that her signature is appended to the said consent as a witness thereto and therefore seeks to be added to the proceedings herein since one of the issues raised herein involves her integrity and professional. 4. The claimants submitted in response inter alia, that the matter does not directly involve the intended intervener/applicant, nor does the determination of the issue in any way affect any legal or pecuniary interest of the applicant so as to give her sufficient interest for a joinder. 5. The Court having read submissions on behalf of the applicant and the claimant with respect to the said application, formed the view that Ms. Deborah Moore- Miggins ought to be joined as a party to this action for the following reasons. 6. The Court formed the view that there is a live issue involving Ms. Moore-Miggins which is directly related to the matters in dispute in this case, and the Court had regard to the Page 2 of 6

3 provisions of Part 19.2(3) (a) and (b) of the Civil Proceedings Rules, 1998 as amended, which states: The Court may add a new party to proceedings if- (a) It is desirable to add the new party so that the court can resolve all matters in dispute in the proceedings; or (b) there is an issue involving the new party which is connected to the matters in dispute in the proceedings and it is desirable to add the new party so that the court can resolve that issue 7. The rule vests in the Court a wide discretion in relation to its ability to consider whether to permit the addition of a new party and one of the fundamental objects of the rule is to prevent the multiplicity of actions and/or to enable the Court to determine all disputes between parties in one action. The Court found that there is in fact an issue in this matter that directly involves the applicant and that it is desirable to add the applicant as a party so the Court can be assisted with the resolution of the said issue. The Court was mindful that its discretion has been exercised in accordance with the overriding objections of the CPR and considered same before arriving at its decision. 8. Ultimately, the main issue to be considered in the instant matter, is whether the consent dated 27 th August, 1990 and the Affidavit dated 22 nd January, 1992, was signed by the Claimant in these proceedings. The said documents in question bore the signature of Ms. Deborah Moore-Miggins appended thereto as a witness. 9. The allegation advanced by the Claimant was that the document was never signed by her in front of Ms. Moore-Miggins. The Court viewed this as a very serious allegation, one which if proved to be true, could in accordance with the provisions of the Legal Page 3 of 6

4 Profession Act, have serious consequences for Ms. Moore-Miggins in her professional capacity as an Attorney-at-Law. 10. By implication the position advanced by the claimant raised a serious issue in the mind of this Court as it related to Deborah Moore-Miggins. Ms. Moore-Miggins specifically stated in her affidavit at paragraph (9) that the parties all attended her office and signed the consent dated 27 th August 1990 and that she witnessed same. 11. Ultimately it is the consent document that is in issue in this matter and the Court formed the view that Ms. Moore-Miggins ought to be added as a party to the action so that a proper opportunity to be heard could be afforded her in recognition of the fact that any adverse decision at the end of the trial with respect to the consent document in question would most likely have an impact on her professional reputation. 12. Further the Court noted, that having regard to the potential impact upon her professional reputation, if added as a party she would be given an opportunity to lead evidence and call witnesses in relation to the consent form. Any evidence led by Ms. Moore- Miggins on this issue could greatly assist the Court and in that context Ms. Moore- Miggins ought to be entitled to put forward a defence and position in relation to the issue of the consent. This is a position that she would not necessarily be able to adopt if she is not a Defendant since she cannot direct the existing parties as to the manner in which they ought to conduct the litigation. 13. The Court felt that it would be fundamentally wrong and not in accordance with the principles of natural justice, if the only opportunity to deal with the issue of the consent or lack thereof in relation to the document in dispute and the evidence led in determining this issue, was to come from and be controlled by the defendant without giving Ms. Page 4 of 6

5 Moore-Miggins, the opportunity to fully engage the issue within the parameters of the directions issued by the court. Even if Ms. Moore-Miggins had filed a witness statement on behalf of the Defendant, she had no control as to whether or not she would actually be called at the trial to give evidence nor would she have any control as to any other witness whom the Defendant chose to call. 14. The Court considered the history of the matter and the fact that several claimants were struck out by order of the court on the 21 st November 2011 and that the matter thereafter proceeded with only Dowaga Daniel as the Claimant as well as the fact that the Glen Parmassar report was obtained in October The Court noted that there is difficulty in this jurisdiction to obtain the services of a qualified reputable and reliable forensic document examiner and also considered Ms. Moore-Miggins unfortunate period of illness in November 2011 as well as the fact that upon her recovery she located and subsequently obtained a report from Mr. Patrick Sealy a hand writing expert from Barbados. 15. The Court considered the effect and operation of Part 19.2(7) of the CPR and formed the view that the said rule did not apply to this case even though the matter had past the stage of case management conference. 16. In the circumstances, the Court felt that it could benefit from the expert evidence that the applicant proposed to adduce at trial if she was added as a party. The Court was also mindful of the approach taken by Court of Appeal in the case of Christianne Kelsick.v. Dr. Ajit Kuruvilla et.al C.A No. P277 of This Court formed the view that the evidence of the expert proposed to be called by Ms. Miggins in conjunction with the evidence before the Court by Glen Parmesar is evidence of the nature and kind that is Page 5 of 6

6 reasonably required to assist the court in determining the issues before it justly, and the Court ought not to deprive itself of that assistance. 17. In addition, the Court formed the view that the delay in bringing the Notice of Application was excusable and did not amount to an abuse of the Court s process. Ultimately as the Judge charged with the responsibility of conducting the trial, this Court was confident that it would be significantly aided by the direct involvement of Ms. Moore-Miggins as a party to this action. 18. The Court also considered the fact that in this matter there was no application for budgeted costs so the addition of Ms. Moore-Miggins would not significantly alter the position in relation to costs at this stage. 19. Consequently the order sought was granted and the Court issued directions that were consistent with the overriding objectives of the CPR, for the further management of this matter. FRANK SEEPERSAD JUDGE Page 6 of 6