IN THE HIGH COURT OF JUSTICE TRINIDAD AND TOBAGO SELWIN RILEY. And. WINSTON CUFFIE (Trading as Forsis) ***********************

Transcription

1 IN THE HIGH COURT OF JUSTICE OF TRINIDAD AND TOBAGO CV SELWIN RILEY And WINSTON CUFFIE (Trading as Forsis) CLAIMANT DEFENDANT *********************** Before Master Patricia Sobion Awai Appearances: For the Claimant Mr. Mitchell For the Defendant:- Mr. Samlal instructed by Ms. S. Mohammed

2 BACKGROUND 1. The Statement of Claim in this matter was filed on December 12, 2011 seeking damages for personal injuries sustained as a result of breach of statutory duty and/or negligence. No Appearance was entered by the Defendant and Judgment dated July 24, 2013 and entered on July 30, 2013 was taken up in default of appearance. THE APPLICATION 2. By Notice of Application filed on January 10, 2014, the Defendant seeks the following relief: (1) the default judgment be set aside pursuant to rule 13.2(1) of the Civil Proceedings Rules (CPR); (2) the default judgment be set aside pursuant to rule 13.3 of CPR; (3) the claim be struck out as an abuse of process pursuant to rule 26.2(1)(b) of CPR. 3. The Defendant's Application is supported by the Affidavit of Rev. Dr. Winston Cuffie filed on January 10, In opposition is the Affidavit of the Claimant, Selwin Riley filed on April 2, 2014 and the Affidavit and Supplemental Affidavits of Roger Traboulay, process server, filed on May 28, 2012 and November 12, 2012 respectively. Page 2 of 13

3 NO SERVICE - CPR 13.2(1) 5. Rule 13.2(1) of CPR provides that the court must set aside a judgment entered under Part 12 if judgment is wrongly entered because any of the conditions in rule 12.3 is not satisfied. One of the conditions in rule 12.3 is that the claim form and statement of case has not been served. 6. Under the first head of relief, the issue to be determined is whether, on the evidence, the defendant can satisfy the court that he was not served with the claim form and statement of case. 7. The evidence of Roger Traboulay as set out in his affidavit filed on April 2, 2014 is that he personally served the defendant Winston Cuffie with the proceedings on Monday February 6, 2012 at 3.30 pm at his place of business at Chase Village, Freeport in the vicinity of Miracle Ministries Church. 8. Under cross examination Roger Traboulay said that service was effected in the small carpark on the western side of the compound of Miracle Ministries, which he considered to be the Defendant's place of business. He said he knew the Defendant for about 15 years since he was a religious icon in Trinidad who often appeared in the newspapers and on television. He said the Defendant accepted service of the documents. 9. On the other hand, the defendant denied he was served, relying on the fact that, as a matter of policy, he had Mondays off and he would not therefore have been at the Page 3 of 13

4 office of Miracle Ministries or on the compound on the day in question. At paragraph 13 of his affidavit Winston Cuffie stated: "13. I have also inspected the Affidavit of Service of Roger Traboulay filed on the 28th day of May 2012 which states that on the 6th February 2012, he personally served me at (sic) with the Claim Form, Statement of Case, Appearance Form and Defence Form at the Miracle Ministries Church. I do not know who Roger Traboulay is and I was never served with any document on the 06th February I do not recall my itinerary for that date however I have checked my calendar and I have seen that the 6th February 2012 was a Monday. For the past 24 years it has been the standard policy at Miracle Ministries that Mondays would be "Pastors' off day" and therefore I would not be at the compound or in the office. This is a very strict policy which we adhere to at Miracle Ministries. It's also called "the Pastors' sabbath day" which is dedicated to rest and meditation, because of the heavy all day Sunday Church activities. In any event, I am only on the Miracle Ministries compound on Wednesdays, Fridays and Sundays each week, therefore I could not have been served with the documents on Monday the 6th February, 2012 on the Miracle Ministries Compound." 10. Under cross examination Winston Cuffie said that on his day off he sometimes would visit his mother- in-law or go to a restaurant or to the beach with the family. He said he Page 4 of 13

5 was the head pastor and had a massive staff. Prior to 1990 when the Ministry was small, he had to do everything. It was now a multimillion dollar enterprise. There was a board of directors which monitors pastors' days off. Staff would tell anybody "This is his day off." It was by no means a one-man show. The team comprised thirty (30) pastors and two hundred (200) staff members. 11. In weighing the evidence in the matter, I find that the evidence of the process server that the documents were personally served on the defendant on Monday February 6, 2012 is unshaken. On the other hand, the quality of the evidence of the defendant is poorer insofar as he relied on a general policy, albeit a strict one, that Mondays were his days off. While it is understandable that the defendant may not have had personal recollection of his itinerary some two years ago, recourse could have been had to other sources including members of staff, family members and church records. The defendant in fact stated that a board of directors monitored such matters. 12. In Republic Bank v Homad Maharaj CA 136 of 2006, the court ruled where a default judgment was obtained based on an affidavit of service which complied with the requirements of O65 r 8 of the Rules of the Supreme Court 1975 (which is equivalent to CPR 5.5), the affidavit of service created a presumption of service. The onus therefore lay on the other party to prove there was no service. In that matter there was no cross-examination of the process servicer and Page 5 of 13

6 the court found that the presumption of service was not rebutted. 13. In this case there was vigourous cross examination of both the process server and the defendant but at the end of the day, I conclude that the process server s evidence relating to service of the documents has not been discredited and the presumption of service has not been displaced by the defendant s evidence. 14. Further, I reject the contention made by the defendant's attorney that the court should take judicial notice of the defendant's profession and his position in that profession in assessing his credibility. Credibility has to be assessed on an individual, not on a professional, basis. In any event the credibility of the respective deponents in this case is secondary to the nature of the evidence they presemted. In effect, the explicit evidence of service by the process service is preferred to any inferences of nonservice that may be drawn from a policy that the defendant did not work on Mondays. GOOD DEFENCE, NO DELAY - CPR Rule 13.3 of CPR reads as follows: (1) The court may set aside a judgment entered under Part 12 if (a) the defendant has a realistic prospect of success in the claim; and Page 6 of 13

7 (b) the defendant has acted as soon as reasonably practicable when he found out that judgment has been entered against him. (2) Where this rule gives the court power to set aside a judgment, the court may instead vary it. 16. The Defendant has to satisfy the two preconditions in rule 13.3 namely, he has to show a defence with a realistic prospect of success and he has to demonstrate that he made his application to set aside the judgment within a reasonable time. 17. On the issue of prospects of success, paragraph 6 of the defendant's affidavit is relevant. It reads as follows: 6. In the Defence to the first matter, I also put forward my version of the events that transpired. Namely that I placed conspicuous signs on the premises stating "No entrance, No exit" and "Please use the next gate" at strategic locations around the premise (sic) and in particular on the gate in issue. I also caused the gate to be secured on both ends and steel on the southern side for additional safety. A memorandum dated the 10th November 2007 was also distributed forbidding workers from using the part of the premises where the said gate was located..." 18. In my opinion, the defence put forward based on the placement of warning signs debarring persons from using the Page 7 of 13

8 gate offers a realistic prospect of success. This precondition for setting aside a judgment was met. 19. The relevant evidence relating to the timeline for making the application is set out in paragraphs 10, 11 and 12 of the defendant s affidavit which read as follows: 10. On or about the 20 th November 2013, I received a Notice from the High Court of Justice dated 19 th November 2013 which was hand delivered indicating that a Claim CV : Selwyn Riley v Winston Cuffie Trading as Forsis has been adjourned to the 24 th day of February 2014 for a status hearing on the Assessment of Damages. I was very confused by this Notice as I knew the first matter involving Selwyn Riley was finished. This was the only matter that I knew I ever had with Selwyn Riley. This was the first time I was hearing about any other matter involving Selwyn Riley. A true copy of the Notice dated 19 th November 2013 is hereto attached and marked W.C I contacted my Attorneys at Law Freedom Law Chambers and informed them about the Notice I received. I am informed by my Attorneys at Law and verily believe same to be true, that they ordered a copy of the file CV from the High Court of Justice in order to determine the status of the matter filed against me. I have instructed my Attorneys at Law, that at no time was I ever served either personally or otherwise wiht the Claim Form and Statement of Case in these proceedings. The first Page 8 of 13

9 time I became aware of these proceedings was when I received a Notice from the High Court of Justice dated the 19th November I have seen a copy of the Claim Form and Statement of Case filed against me at the office of my Attorneys at Law. I am informed by my Attorneys at Law that the file was ordered from the Court and was only received on the 19th December The timeline in this case is as follows: November 20, 2013 Defendant receives notice of the judgment when he was served with notice re assessment of damages. Unknown date Defendant contacted his attorneys and informed them of the notice re assessment of damages. Unknown date Attorneys at law for the defendant ordered a copy of the court proceedings. December 19, 2013 Copy of court proceedings received from the court. January 19, 2014 Application to set aside judgment filed. 21. In order for a court to determine whether a party has acted as soon as reasonably practicable after finding out that judgment was obtained against him, there must be evidence Page 9 of 13

10 not only of the steps taken by the party but also of the dates when such steps were taken. An explanation must be given for any delays. 22. In the timeline presented by the defendant, there is no indication given as to how soon after November 20, 2013 attorneys were contacted and also no indication of how soon after being informed the attorneys applied to the court for a copy of the proceedings. All that can be said is that one month after receiving notice of assessment, the relevant documents were obtained by attorneys from the court. 23. After receiving the relevant documents, it took a further three weeks before the application to set aside judgment was filed (December 19, 2013 to January 10, 2014). No explanation whatsoever was given for this delay. 24. I am guided by the dictum of Mendonca JA in Nizamodeen Shah v Lennox Barrow CA 209 of 2008 in treating with delay in applications of this nature. At paragraph 12 of the judgment the learned judge said: There are no doubt cases where the application to set aside the judgment is made a very short time after the judgment is entered so that, on the face of it, the Court can say that the defendant acted as soon as reasonably practicable. In this case however the application was made at least two months after the date when the Appellant found out that judgment was Page 10 of 13

11 taken up against him. This delay does not fall into that category of case where you can simply look at it and say that the Appellant acted as soon as reasonably practicable after finding out the judgment was entered. In those circumstances what then is the obligation on the Appellant. The obligation to put some material before the Court on which the Court can come to the conclusion that he has acted as soon as reasonably practicable. 25. In this case, it cannot be said that on the face of it, no explanation is required for the delay of some seven weeks from the time defendant was aware of judgment to time of making application to set aside the judgment (November 20 to January 10, 2014). To my mind, the defendant had an obligation to put sufficiently detailed material before the court to enable the court to be satisfied that he acted as soon as reasonably practicable. He failed to do so. In the circumstances, this pre-condition is not satisfied. ABUSE OF PROCESS - CPR 26.2(1) 26. Rule 26.2(1)(b) of CPR provides, inter alia, that the court may strike out a statement of case if it appears to the court that the statement of case is an abuse of the process of the court. The question arises whether the defendant who has not entered an appearance may make an application to the court seeking relief of this nature. Page 11 of 13

12 27. I note that under rule 9.7 of CPR, even a defendant who wishes to dispute the court s jurisdiction to try a claim must first enter an appearance. 28. In this case, the defendant is not disputing jurisdiction but is asking the court to exercise its case management powers to strike out a claim for abuse of process. Nothing in the rules permits a defendant to invoke the case management powers of the court without first signifying his intention to defend the claim by entering an appearance. 29. Moreover judgment on liability having already been taken up in default of appearance, the court is functus officio as to issues of liability. The only matters that can validly be dealt with at this stage would be an application to set aside the default judgment or the assessment of damages to determine quantum of loss. 30. The basis for this application to strike out for abuse of process is that in previous proceedings CV , the Claimant sued Miracle (Pentecostal) Ministries in respect of matters raised in these proceedings. According to the defendant's own evidence at paragraph 5 of his affidavit "I was advised by my attorneys that the Defendant in that matter was not the proper party to those proceedings and proper party would be myself, Rev. Dr. Winston Cuffy trading as "Forsis"". Further at paragraph 7 he stated that no amendment was made to join the proper party to the proceedings. And at paragraph 9, he said that the matter Page 12 of 13

13 was withdrawn on the morning of the trial on February 24, 2011 with costs in the sum of $113, From the above evidence, this is not a case where the same party has been sued on two occasions for the same wrong. The wrong party was sued on the first occasion and the correct party is now being sued. This, in my opinion, cannot amount to an abuse of process. 32. For the forgoing reasons, the application to strike out the claim is misconceived. RULING 33. In the circumstances, the Defendant's application filed on January 10, 2014 does not succeed. 34. The Defendant shall pay the Claimant s costs to be assessed in default of agreement. Dated this 7 th day of November, 2014 Master P. Sobion Awai Page 13 of 13