IN THE HIGH COURT OF JUSTICE BETWEEN REPUBLIC BANK OF TRINIDAD AND TOBAGO. Alvin Pariaghsingh appearing Mr. Beharry instructed by Anand Beharrylal

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No: CV: BETWEEN LUTCHMAN LOCHAN TARADATH LOCHAN AND ASHKARAN JAGPERSAD REPUBLIC BANK OF TRINIDAD AND TOBAGO First Claimant Second Claimant First Defendant Second Defendant Before The Hon. Madam Justice Eleanor J. Donaldson-Honeywell Appearances: Claimants: First Defendant: Second Defendant: Alvin Pariaghsingh appearing Mr. Beharry instructed by Anand Beharrylal Ravi Mungalsingh Andrea Orie Date of Oral Judgment: 28 th September, 2015 ORAL RULING Page 1 of 17

2 A] MATTER FOR DETERMINATION: The matter before the Court for Determination is the application filed by the First Defendant on August 10, The order in relation to which this extension was sought was a stay of execution of a July 15, 2010 injunction directing that the 1st Defendant be restrained from entering the Claimants property. The terms of the stay specified that the Defendants would be allowed a period of time ending on August 16, 2010 to remove a building that they had built on the property. This period was extended in an Order by Madam Justice Jones by consent of the parties on 17 th January, 2014after a Court of Appeal directed re-hearing of the matter. The new dead line was April 30, 2014 within which the Defendants would be allowed to enter the property and remove the building. The application was opposed by the Claimants for reasons set out in a Notice of Preliminary Points as follows: The Claimants will be inviting the Court to dismiss same with costs for the following amongst other reasons: 1. That the High Court is functus officio and has no jurisdiction in this matter by reason of fact that there have been two trials before the High Court, two appeals before the Court of Appeal and one appeal before the Judicial Committee to the Privy Council, wherein all matters, issues and rights of the parties to this litigation have been completely and finally determined. 2. That the plea of res judicata, cause of action estoppels, issue estoppels applies and/or it is an abuse of process of the Court s process for the High Court to reopen or permit the First Defendant to raise any new or alternative issues at this stage, he being required to put all maters in issue before the Court at the same time for its determination in accordance with Section 16, 18 (2) and 20 of the Supreme Court of Judicature Act Chapter 4:01 of the Laws of Trinidad and Tobago. 3. That the First Defendant s conduct in filing the instant application is contrary to the overriding objective as set out in Part 1 r1.(2)(b) and (e) of the Civil Proceedings Rules 1998 ( CPR ) as amended and is liable to be struck out in accordance with Part 26 r26.1(1) of the CPR. Page 2 of 17

3 Dated this 23 rd day of September, 2015 Following on consideration of the application and supporting evidence filed by the 1 st Defendant as well as the preliminary points raised by the Claimants, parties were invited to make oral submissions. The submissions and authorities submitted to guide the Court s determination are herein below set out in full. B] TRANSCRIPT OF HEARING: (Apologizes for counsel s absence and also the absence of the Claimants. He indicated that they both reside out of jurisdiction.) Asking for leave that they please be excused, my lady. Yes they may be excused. My lady, I find it strange, I haven t seen my clients for the morning but they are on the way. I do apologize for their absence. Yes that s accepted. My lady what is before you this morning, as I understand it, are two things: The first thing is my application on behalf of the defendant filed on 10 th August, 2015, as well as, my friend s notice of application filed on 25 th September, I believe I saw an subject to my friend saying that whilst I believed it was ed to the court. It appeared more to me to be a response to you application than a separate notice of application. Page 3 of 17

4 My lady it is simply a notice of preliminary point. It is not an application. I have indicated to my friend that I think both the notice that is before you this morning as well as the substantive application, I will suggest to my lady the facts are not in dispute as I understand it and I will suggest to my lady subject to you of course, and what my friend has to say in response, that my lady order written submissions. I have actually prepared some draft submissions, which I can have filed within the two weeks or even less if my lady is so minded. It s not a matter that appears to me to require written submissions. In fact, I have read the application, as well as, the copious file of events that preceded it before Madam Justice Jones, as well as, the Court of Appeal and the Privy Council. So in the circumstances, I am prepared and I think it is in the interest of both sides that we proceed with the matter. (Both attorneys indicate that they are ready.) I have read both the application and the response and essentially is there anything in addition that either of you would want to say? The issue is simply this, my lady would be aware there were two judgments by your sister Judge, Madam Justice Jones. There was a Court of Appeal decision. There was a Privy Council decision. Just to highlight, in my opinion, very clearly where I think the matter stands please my lady. There was a judgment given in 2010 that was the first judgment. As part of that first judgment, the learned judge as she was then at the time, made an order staying her order on the injunction, giving the defendant an opportunity to Page 4 of 17

5 remove their building. That order, giving that time, as far as I understand, was never appealed by anybody. That is, to say, the order giving permission to go upon the land to for the purpose of removing building. What happened subsequently is the Court of Appeal heard, sorry, there was an application for a stay by Justice of Appeal, Bereaux. He granted it. Thereafter, the matter came up before the Chief Justice, Justice Kangaloo and I think Justice Rajnauth-Lee. In any event please, my lady they, the Republic Bank was joined at that stage and the matter was referred back to judge. In 2012, judge heard the matter. Second judgment my lady, the second judgment was appealed by both parties, i.e. to say, Republic Bank and Jagpersad. The first judgment was only appealed by my client when the matter came up before the Court of Appeal. The Court of Appeal rendered its decision. The decision was essentially On different reasons it came to the same conclusion. By different methodology same conclusion. In any event, please my lady, what happened then is the bank chose to appeal. Not this defendant. This defendant chose to go no further. This defendant accepted the decision of the Court of Appeal who then further extended the time for the removal of the building. This defendant played no part, well they were served with application for leave, but we played no part in that please my lady. That was all and if my lady refers to the Judgment of the Court of Appeal, in granting leave or the order they gave for granting leave, my lady would see exactly what the bank appealed. The bank appealed the judgment in 2012 of Justice Jones and the decision of the Court of Appeal as regards to that specific decision. That was what was appealed to the Privy Council, please my lady. So sufficing to say, the position of this defendant has been that we accepted the position of the Court of Appeal and we were endeavouring to remove our building. Unfortunately, my lady, we were caught by the stay granted through the Court of Appeal that prevented us from going further. We couldn t touch the building because it was the security for the bank and there was an order that, a specific order I think in the Court of Appeal s decision or order. Page 5 of 17

6 A stay until termination of the appeal to the Privy Council. Correct. What is really before you this morning, if I may, subject to you and my friend saying otherwise is Justice Jones Order of 2010 which essentially gave us permission to remove the building. That is what is before you my lady and what we are asking pursuant to the rules [Counsel refers to Part 43.9 of the Civil Proceedings Rules (1998) as amended], which allows for it, you would have looked at the rule, unfortunately my lady there is not much authority on the point but if one looks at the rule it seems to be very obvious. What it says essentially is when orders are made against you, you must comply with the order and if you haven t complied with the order you seek various reliefs from the courts in terms of extending the time to do so. The reason we are back before you this morning, as I understand it, is in or about June 19 th of this year my friends made an application for injunctive relief when we started to break the building. Yes that was during the vacation. We were basically trying to comply with the order of Justice Jones. Two essential points: First of all I am coming under the rule. The rules speak for itself and in my humble opinion the court has the power where it is not varying any aspect of the Judge s Order but facilitating by adjustment of the time. The court is in power to do so by nature of the rules, my lady. I think it s 43.7, Page 6 of 17

7 43.9 thank you and that is one my lady but in addition, there is also the inherent jurisdiction that my lady has as empowered by the Supreme Court of Judicature Act, please my lady. So my lady I am coming on two fronts as it were but essentially they are the same point please my lady. Now I understand my friend, by his notice is essentially saying, look my lady would be functus. That is to say there has been decisions rendered by various courts. My lady I do not share that opinion. I have authorities that suggest that. What is before you essentially is not an issue that address the Order of the Honourable Judge, the Court of Appeal or the Privy Council, for that matter. The issue before you please my lady, if one is to look at it from a stay perspective, is an extension of the time for me to comply with the Order of the Court. I have a Belizean Judgment that speaks to it. What my lady is essentially doing and I will like to use the words of the judgment because it facilitates that. It explains it quite well. It says essentially my lady, is not interfering with the Judge s Order, lady is not varying Judge s Order. All my lady is doing is there was a stay in place jurisdictionally because my lady would be aware matters could be before the Court of Appeal and my lady will still be empowered to grant a stay, even though a matter is before another jurisdiction, that is to say, the Court of Appeal. So at the end of the day my lady has the inherent jurisdiction to further stay the order to facilitate the breaking of the building and in any event my lady has the rule. Now the rule speaks to a situation where order has been made and it says final or interim. A final order has been made and my lady can then descend upon to facilitate compliance with the order because there must be compliance with the order and I think essentially it flows through all the judgments. I don t think any judgment requires it otherwise. The building belongs to the defendant. The land belongs to the claimant. That is precisely stated by judge in her order and we quoted it my Lady. That is why judge said, the building is yours sir remove it from the land. There was a time in which that was to be done. Page 7 of 17

8 There was a time, of course, but where I am coming from is; can my lady extend that time and I am saying yes, my lady. (passed copies of Belizean case - BCB Holdings Ltd and another v Attorney General of Belize (2011) 78 WIR 41- to judge) While you are passing it there is one question I have in relation to the particular order that you are seeking to vary because as you have quite correctly outlined there have been a number of orders in relation to this matter and two in particular would have granted stays. One would have been the Order of Madam Justice Jones and then the Court of Appeal granted a stay. That stay was until the termination of appeal to the Privy Council. So my question is, to you, and also the other side will have an opportunity to respond, whether your application to vary the time for the stay is more appropriate to the Court of Appeal? My lady, I will indicate you have concurrent jurisdiction because my lady will see from the Belizean Judgment which quotes a Court of Appeal of Trinidad, a Privy Council decision of Trinidad. In the Belizean Judgment the situation was that you had the Court of Appeal actually dealing with the matter before it and the parties coming before judge because there is a concurrent jurisdiction under the Supreme Court of Judicature Act and in fact in that judgment my lady what it says is you are supposed to actually come before the trial judge first and then go to the Court of Appeal, because it is a concurrent jurisdiction. This issue of a stay, it has nothing to do materially with the order that has been made per se. It has to do with the issue of time to comply with the order and it specifically says my lady is not functus. As the judgment is now being passed up I haven t had time to read it myself. So, if you could advise me on this matter, the matter was still before the Court of Appeal or had the Page 8 of 17

9 Court of Appeal already made their decision in this matter of BCB Holding v Attorney General when the high Court Judge was asked for a stay of execution? No they had not, that was still before the Court of Appeal. The issue is one of jurisdiction and in the judgment they used the words if there is an appeal pending or a proposed appeal words to the effect of a proposed appeal. So that creates a scenario which may be affecting. I see what you are saying and the question of jurisdiction, I don t think it can be said I don t have jurisdiction, but the question in my mind really is the issue of the fact that it s the Court of Appeal that made the last stay. It wasn t Madam Justice Jones and yes the Court of Appeal and this level of the Court have joint jurisdiction but I will invite you to look at the judgment because at the end of the day I would try my best to just read the held piece my lady for the sake of convenience. It says a trial judge of the Supreme Court did not become functus officio upon the filing of an appeal. If he did, the functus officio rule would operate in relation to the judgment in respect to which the notice of appeal had been filed, in the instant case there is 22 nd December, The application of the Attorney General before the court in the instant case did not seek to amend the judgment, and that s words please. We are not seeking to amend the judgment and thats the word. It sought to extend not to amend, the stay order of the second judge of 8 th March, 2011, there has been no appeal against that order. That is why I was making the point that there was never a cross appeal with respect to stay because my lady made an order for an injunction. The other side could have said, no stay, but they did not say so my lady. They did not appeal the order. Further, while order 2 rule 16.1 of the Court of Appeal Rules, 1965 gave power to the Court of Appeal to make an order for a stay of execution on a judgment appealed from, that power was not exclusive to the Court of Appeal. It is not exclusive to the Court of Appeal I submit. Page 9 of 17

10 Order 2 rule 19 (1) acknowledged that the court below has power as well. It comes from the Supreme Judicature Act, with respect inherent jurisdiction. Accordingly, an appeal could not automatically operate as a stay of execution of proceedings; there had to be an order made by the court below (The Supreme Court of Belize) or the Court of Appeal. The jurisdiction of the Supreme Court of Belize was, in any event, unlimited by authority of S. 95 of the Constitution and we have similar provisions in our constitution and that included any inherent jurisdiction (see Bibby and Another v Partap and others (1996) 48 W.I.R. 371) which is a judgment emanating out of our jurisdiction, my lady. I have also given it to you. Upon the application of previous authority it was a condition to the existence of jurisdiction of the Court of Appeal to hear, determine, make orders on an application for a stay of execution that a Judge of the Court below should have previously heard and refused such an application. So, if my lady refuses my application, whether pursuant to the rule or whether pursuant to inherent jurisdiction or both, then I appeal from that (with respect I am not saying I would but in the event). It followed that an application for a stay of execution or an extension of the order could be commenced only at the trial court and might be made to the Court of Appeal only if the applicant has been unsuccessful at the trial court. Accordingly, the court in the instant case had jurisdiction to hear the application. It s an issue of jurisdiction. I am saying that the law provides that my lady has the jurisdiction and, in fact my lady, you are the most appropriate person to whom the application should be made and thereafter we take it step by step from there. Yes, that is very helpful. I will hear from Mr. Paraighsingh. Mr. Paraighsingh: Before I make my submission I wish to emphasis a couple of points from the evidence. The defendant in this matter never appealed to the Privy Council. The order for conditional leave was between Republic Bank Limited and the Claimants, who were the respondents to the appeal. The stay granted on the demolition order was in respect of Republic Bank s Application, who has an interest by virtue of mortgage. The defendant Page 10 of 17

11 in this matter chose not to join in the appeal to the Privy Council, not to make representation to the Court of Appeal and not to participate at the Privy Council to even intervene after the appeal was fixed, please my lady. That is the first point. At paragraph 25 of the judgment of Lord Neuberger in the Privy Council, exhibit SM6. At the hearing of the appeal, which is available online, the time forty minutes and thirty-nine seconds, there was a discussion between Lord Neuberger and Mr. Ian Benjamin who appeared on behalf of Republic Bank Limited dealing with what happens to this building if Republic Bank was successful in the appeal. My lady it was argued that the Lochan s will receive benefit of a building and Jagpersad will receive the burden of the mortgage. My lady, Lord Neuberger then enquired what happened at all to Jagpersad s proprietary estoppel claim in claiming an interest in that building before the High Court and the Court of Appeal. At paragraph 25, Lord Neuberger dealt with the issue and said it was never raised. So that s the first point, to come now and argue an interest in the building, we submit it simply can t be done in the High Court. It ought to have been raised either at trial, at the Court of Appeal or in the Privy Council. That s the first point. In respect to jurisdiction It is possible, though, not to cut you as I know you are in a flow of submission that the issue of ownership of the building was not in dispute, in that the parties knew from the beginning that the claimant did not own the building. My lady the issue of the ownership of the building has never been in dispute. On the issue of jurisdiction the claimants acknowledge that the court has inherent jurisdiction but we say that the inherent jurisdiction must be taken in the context of the entire case. In that regard I refer the court to the judgment of Master Margaret Mohammed, as she then was in Chanka Bhim v Philomen Dean CV 1025 of In the matter of Bhim v Dean the High Court had dealt with a contentious probate claim and there was an appeal to the Privy Council. The claimant was unsuccessful and the matter went to the Privy Council. Before the Privy Council dealt with the appeal there was an application made to Page 11 of 17

12 Master of the High Court to access sums that were the bulk of the estate to pay fees in the Privy Council. At that stage the master had to determine whether she should exercise her inherent jurisdiction in a manner to intervene in those proceedings to grant relief to the Plaintiff. At paragraph 9 of that judgment, the court said, before the substantive application could have been addressed Mr. Marcus, Counsel for the defendant raised the preliminary objection to the instant application. He submitted that I had no jurisdiction to deal with the substantive application since the matter was now seized before the Privy Council and as such the local courts are functus and the proper forum to determine the substance of the instant application is the Privy Council. In support of the preliminary objection Mr. Marcus referred me to the authorities of Mc Night v Mc Night and All Trinidad Sugar and General Workers Trade Union v Caroni 1975 Limited. My lady our point simply is that any variation, extension, amendment to the order of the Honourable Madam Justice Jones has to be done by the court that has it now seized for jurisdiction of the matter. If the defendant chose to stop at the Court of Appeal, which he did, then the jurisdiction that he has to apply to please my lady respectfully is the Court of Appeal. If the Republic Bank has any difficulty with the Order, the jurisdiction that they have to apply to has to be the Privy Council and not the High Court. That s my position in respect of functus please my lady. Ms. Orie: My lady if you may, may I interrupt the court. You are also in this? Ms. Orie: I believe so my lady. Page 12 of 17

13 Republic Bank, please my lady. Ms Orie is an instructing attorney for the Republic Bank. We served them for convenience please my lady. We served the application for completeness. Yes it s a matter of interest to Republic Bank although you have no personal stake in the application concerning the building. My lady I am heartened to hear my friend s submissions because they are all au courant with what I said please my lady. No they are not. On the issue of the building, who does it belong to? Everybody including the Privy Council recognizes who the building belongs to. Before continuing though, because I think he was continuing his submission. He hadn t finished, I think what happened is that counsel for the bank came in and well it appeared then that he had finished but he wasn t finished at that time. My lady I have no difficulty for my friend to announce her appearance and I will continue. Yes she announced it. Page 13 of 17

14 My lady in respect of the claimant s notice, as well, we have also raised other points but having regard to the main issue being that of jurisdiction the other points would more go to if the court accepts that it has jurisdiction. So unless the court wishes me to address points (2) and (3) my lady I am happy to stop at the issue of jurisdiction please my lady, at this stage. I have looked at the other points that you have raised. Yes you can stop at the point of jurisdiction but before getting to giving my decision at this stage I really wondered, although this matter has been in progress for such a long time and it has gone all the way to the Privy Council. Not by us ma am. No not by your client. I wondered whether it s a very strange matter to me although clearly there are issues of title that arise like this. It s very unfortunate that I think at all levels the judges were clear that they didn t feel that there was any fraud or anything. It just so happened that two people got the same piece of land, the same title was conveyed some hundred years ago at whatever date Yes Yes and Mr. Mungalsingh s client took a piece of land that he thought he had proper title to. It really happened to be the boundaries were the same. So there was no fraud and they really put up a building on the premises and would now lose it entirely. Also, I did see that when the matter went before the Court of Appeal, you can correct me if I am Page 14 of 17

15 wrong Mr. Mungalsingh, your client was ordered to pay, was it Fifteen Thousand Dollars ($15,000.00)? Thirteen Thousand Dollars ($13,000.00) per month. We paid over Five Hundred and something. In total we paid almost One Million Dollars ($1,000,000.00). No please my lady. That sum stopped at the appeal. You had been there for fourteen months paying no money and earning an income from the building? Which are really side issues; but my point really is, before I make my determination which will be based on my decision on the law, is as to whether there is scope for any accommodation between the parties to allow them to remove pieces of the Building. There is hope for accommodation but not in court. Our point is we have been through five matters, two in High Court, two in the Court of Appeal and one in the Privy Council. It simply has to stop. We have an injunction. We want you out. Come out of our property and we will deal with the issue of removal of the building after. You cannot simply stay there, breach the injunction, continue to be there, pay no money. We want you out. Come out and we will talk. My lady, I have no problem if indeed my friend wants to make a proposal for me to pay while I remove the building and these sorts of things, because one must appreciate the reason we come here and I want to be beyond this one. I am happy to talk to my friend. I am happy to exchange correspondence to resolve it. I am just indicating the only reason we came here initially was because we were trying to just comply with the order. So all we are interested in doing and my friend is indicating, he seems to be suggesting it, all he Page 15 of 17

16 is interested in is complying with the order. That having been said, if my friend wants and subject to of course if you give us the opportunity to correspond and try to resolve it and if we can t my lady will render her decision. I have no difficulty with that. Yes but you see in effect that would, be I don t want to impose and put in place the stay. If I give time in that way I will in effect be giving the stay. That will in effect be a stay. I just want to give my personal position in the matter that it should be one where your clients should be allowed to take out parts of the building because they have paid a lot. It wasn t their fault and it s not Mr. Pariaghsingh s clients fault either. They own the land and are entitled to all the benefits of it. In the interest, I think there is a fairness outside of just the four corner of the law it should be between the parties that Mr. Mungalsingh s clients should be allowed to remove parts of the building. Take off the valuable I have no difficulty if they remove the building but they have to remove the entire building including the foundation, restore to our satisfaction to the condition before. My point is that this is not an issue for the court at this stage. You have chosen to abide by the Court of Appeal order. You must not stay there and you must remove yourself and we will talk after. I am going to make my decision now, but for the record I had to make it clear that parties need to have these discussions to ensure that Mr. Mungalsingh s clients have the opportunity to remove from the building but I will make the decision now. Page 16 of 17

17 C] DECISION: In this matter this Court s decision on the 17 th January, 2014 was not the latest decision with regard to a stay. The latest decision was made by the Court of Appeal on the 17 th February, 2014 and that decision was made at the end of their conduct of the matter. So therefore if there is any need to make an application to vary that stay it should be made to the Court of Appeal. Costs to be assessed are awarded to the Claimants to be paid by the First Defendant. Eleanor Joye Donaldson-Honeywell Judge Page 17 of 17