IN THE HIGH COURT OF JUSTICE. JORSLING E. GUIDE (trading as GUIDE S FUNERAL HOME) JORSLING EMMANUEL GUIDE ENEZ GUIDE AND

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1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. CV BETWEEN JORSLING E. GUIDE (trading as GUIDE S FUNERAL HOME) JORSLING EMMANUEL GUIDE ENEZ GUIDE AND CLAIMANTS RICHARD GUIDE DIANE BIRD GUIDE FUNERAL SERVICES AND CREMATORIUN LIMITED DEFENDANTS Before The Hon. Madam Justice Pemberton Appearances: For the Claimants: Mr. Prakash Deonarine & Ms. Susan Moolchan For the First and Third Defendants: Mr. Winston Seenath JUDGMENT [1] INTRODUCTION This was truly a sad case; a family dispute is never considered amenable to the hostile nature of litigation. This family hails from the southern city of San Fernando. [2] The second-named Claimant - Jorsling Guide ( Jorsling ) and third-named Claimant Enez Guide ( Enez ) are a married couple and became landowners of prime property in Page 1 of 23

2 the heart of the city of San Fernando, on Coffee Street ( the said premises ). Upon this land, Jorsling then established the first-named claimant Guide s Funeral Home ( the funeral home ). Over the course of their fifty-year or so marriage, Jorsling and Enez produced ten children. As is oft the case with any family business, when their children became adults they rendered assistance in the management of the funeral home. As is also the case with any family, this led to a dispute among the children of the family. [3] Initially only one child - Carol - was involved in the funeral home. Sadly, she died in April 2005, making it necessary for her siblings to support their parents in the business. Eventually the business was managed exclusively by the first-named Defendant Richard Guide ( Richard ) and the second-named Defendant Diane Bird ( Diane ). Richard eventually purported to expand the business with the advent of the third-named Defendant Guide s Funeral Services and Crematorium Limited ( the Crematorium ). [4] On 28 th November 2005, Richard alleges that Enez knowingly and willfully executed a Deed of her half share of the said premises in his favour. That Deed, however, was never registered until 23 rd November [5] Unhappy differences surfaced because Jorsling and Enez were displeased at the manner in which Richard and Diane conducted the affairs of the funeral home. In addition, Enez disputed the validity of the alleged Deed under which her share and interest in the premises were conveyed to Richard. As a result, these proceedings were instituted. [6] By way of Statement of Case dated 27 th January 2007, the Claimants sought to prevent the Defendants from any further involvement in the funeral home and to disallow Richard from continuing to transact business under the guise of the Crematorium. In response Diane and Richard filed separate Defences on 9 th March Moreover, Richard counterclaimed for either an equity in the business or to be repaid the large sums of money he allegedly expended in improving the funeral home. Page 2 of 23

3 [7] The issues to be confronted and dealt with by me in this trial were procedural in nature. This judgment will not delve into the evidence or merits of this matter, the reasons for which will become self-evident. The case as presented took me on a voyage into what appeared, at first, to be the murky waters of Civil Procedure. [8] ISSUES I had to pronounce on the following: 1. The effect of the absence of the parties at the trial on:- a. The weight and probative value of affidavits, b. The weight and probative value of witness statements from supporting witnesses who attended the trial; 2. Hearsay; 3. Issue estoppel. [9] ABSENCE of CLAIMANTS and DEFENDANTS Jorsling and Enez both swore affidavits in this matter. Richard and Diane both swore affidavits in response. None of the parties presented themselves at the trial for crossexamination. Attorney for Jorsling said that he was ill and indicated that he could be made present at his Chambers. I offered to visit, but this offer was not treated with. Both Enez and Richard presented medical certificates. [10] I refused to treat with the medical certificate presented by Richard, since it did not conform with the basic rules of acceptance by a Court of Law, in that, it was not signed by a person qualified to practice medicine in Trinidad and Tobago. This position was hastily conceded by his Counsel. I accepted Enez s medical certificate. Diane offered no explanation for her absence neither was she represented at the trial by her attorney-at-law on record. [11] The two witnesses - Patricia Carruthers and Beverly Guide-Williams gave evidence on behalf of Jorsling and Enez. Page 3 of 23

4 [12] HOW is the COURT to TREAT WITH THE EVIDENCE AT THIS TRIAL? The issue facing the Court at this trial was a serious one. How am I to treat with the evidence presented by the Claimants and Defendants if it was not tested on crossexamination? How much weight can be attached to the examination-in-chief and crossexamination of the witnesses? [13] AT THE TRIAL Can I say that the untested evidence together with the tested evidence of their witnesses could provide proof of the Claimants case? The short answer is no. The affidavits and witness statements, whilst evidence-in-chief as ordered, needed to have been tested in the absence of a court order to the contrary. Further, the witness statements and the crossexamination of the authors thereof could not advance the Claimants case. [14] Neither Richard in his personal capacity nor as a Director of the Crematorium presented for cross-examination. Neither did they - Richard nor the Crematorium produce witnesses. I therefore hold the same view with respect to the Counterclaim filed by Richard and the Crematorium with even more vigour. [15] In my view, Jorsling and Enez have not complied with the requisite procedural steps so as to offer any evidence upon which I could have come to a decision. I shall therefore dismiss their claim. Similarly Richard and the Crematorium, for the same reasons, have not provided me with any evidence upon which I can justly pronounce on their Counterclaim. That too is dismissed. [16] Since the merits of this case were not ventilated and are not pronounced upon, the parties are not adversely affected by the doctrine of issue estoppel. [17] COSTS The Court has an inherent jurisdiction as to whether to award costs. As I stated, this was a family challenge, which ought never to have experienced the tensions of litigation. Each Page 4 of 23

5 one of the parties has suffered. It is enough. My view therefore is that there should be no order as to costs. [18] ORDER It is hereby ordered as follows: 1. The Claim Form dated and filed on 27 th January 2006 be and is hereby dismissed; 2. The Counterclaim of the First and Third Defendants dated and filed on 9 th October 2006 be and is hereby dismissed; 3. The Injunction granted against the Defendants on 16 th February 2006 be and is hereby discharged; and 4. There shall be no order as to costs. [19] BACKGROUND In 1942, Jorsling and Enez were married and ten (10) children were born of this union. Two of their children include Richard and Diane. By virtue of a Deed registered on 8 th August 1975, Jorsling and Enez became the owners, as joint tenants, of a parcel of land located in San Fernando. The couple erected the family home on this land. Jorsling then became the sole proprietor of the funeral home on 19 th March 1987, which was also situated on the said parcel. [20] Guide s Funeral Home gradually became a successful venture. Eventually, the workload became too great for Jorsling to manage on his own. He recruited the assistance of one of his daughters - Carol Guide - in managing the affairs of the business. Carol died on 28 th April This unfortunate circumstance eventually resulted in the dispute, which underscores this matter. [21] After Carol s death, Jorsling required assistance in the day-to-day running of the Funeral Home, given the volume of work to be done. His health which had severely deteriorated Page 5 of 23

6 because of his grief over Carol s death coupled with his advancing years, caused some of his other children to get together to support their father in maintaining the family business. [22] As time drew on, most of them were no longer able to render their services consistently. By September 2005, the only children still involved in Guide s Funeral Home were Richard and Diane. Later on in that same year, Richard purported to expand the business. He did so by establishing the Crematorium, at the same location, Coffee Street in San Fernando. [23] Jorsling and some of the other members of the Guide family were completely dissatisfied with the manner in which Richard and Diane executed their duties. In particular, it was alleged that they were tyrants and refused to account for the profits being made. [24] As a result, Jorsling and Enez filed a Statement of Case on 27 th January The reliefs prayed therein were as follows: 1. A Declaration that the Claimant is the owner of the business and premises of Jorsling Emmanuel Guide trading as Guide s Funeral Home at #120 Coffee Street, San Fernando and not the Defendants. Further and/or alternatively An injunction restraining the Defendants and each of them by themselves their servants and/or agents or otherwise from disposing of assets and/or dealing and/or interfering with the Claimant s namely Jorsling Emmanuel Guide trading as Guide s Funeral Home situate at #120 Coffee Street, San Fernando otherwise than by delivering or transfer up to the Claimant. 6. An injunction to restrain all the Defendants whether by themselves and/or by their servants and/or by their agents from trespassing and/or entering unto and/or interfering any way whatsoever and/or howsoever with the business of Jorsling Emmanuel Guide trading as Guide s Funeral Home situate at #120 Coffee Street, San Fernando. 7. An injunction against the 3 rd named Defendant by their servants and/or agents or otherwise from: a) Carry on business as a Funeral Home at the premises situated at #120 Coffee Street, San Fernando. b) Carrying on the said or any business under the name of Guide Funeral Services and Crematorium Limited or any name colourably similar thereto, or Page 6 of 23

7 representing in any way the said or any business of Jorsling Emmanuel Guide trading as Guide s Funeral Home or otherwise passing off Guide s Funeral Services and Crematorium Limited as that of the Claimant. c) Soliciting customers in any manner directly or indirectly of Jorsling Emmanuel Guide trading as Guide s Funeral Home Further or other relief. 11. Costs. [25] On 16 th February 2006 an interim injunction was granted in favour of Jorsling and Enez. The terms of the injunctive relief were as follows: 1. That until after the final Judgment or other order in this action the 1 st and 2 nd Defendants and the 3 rd Defendant by their servants and/or agents immediately vacate Guide s Funeral Home situate at #120 Coffee Street, San Fernando. 2. That the 1 st, 2 nd and 3 rd Defendants and each of them by themselves their servants and/or agents or otherwise be and are hereby restrained from disposing of assets and/or dealing with and/or interfering with the 1 st Claimant namely Jorsling Emmanuel Guide trading as Guide s Funeral Home situate #120 Coffee Street, San Fernando otherwise than by delivering up or transfer to the 2 nd and 3 rd Claimant. 3. That the 1 st, 2 nd and 3 rd Defendants whether by themselves and/or by their servants and/or by their agents be and are hereby restrained from trespassing and/or entering unto and/or interfering any way whatsoever and/or howsoever with the business of Jorsling Emmanuel Guide trading as Guide s Funeral Home situate at #120 Coffee Street, San Fernando. 4. That the 3 rd named Defendant by its servants and/or agents be and is hereby restrained from: (a) Carrying on business as a Funeral Home at the premises situated at #120 Coffee Street, San Fernando (b) Carrying on the said or any business under the name of Guide Funeral Services and Crematorium Limited or any name colourably similar thereto, or representing in any way the said or any business of Jorsling Emmanuel Guide trading as Guide s Funeral Home or otherwise passing off Guide s Funeral Services and Crematorium Limited as that of the Claimant. (c) Soliciting customers in any manner directly or indirectly of Jorsling Emmanuel Guide trading as Guide s Funeral Home. Page 7 of 23

8 [26] The Defendants then responded to the action. Diane filed a Defence on 9 th October 2006, disputing her parents claim. In particular, she disputed the allegation that she took control of the daily functioning of the business. According to her, she merely returned to Trinidad to assist her parents in the running of the business without ever purporting to dominate same. In the circumstances, Diane denied Jorsling and Enez s entitlement to the reliefs claimed. Diane did not file a Counterclaim. [27] On the same date, Richard filed a Defence and Counterclaim, on behalf of the first- and third-named Defendants. His Defence was that he, Carol and Enez were the persons responsible for promoting and running the business. Jorsling was unable to do so by reason of the various illnesses from which he suffered. Richard asserts that, by 1980, he was solely responsible for running the business, a task for which he never received a salary nor remuneration of any other kind. [28] Richard goes on to state that the other members of the family subjected his mother to a great measure of abuse. As a result, she endowed him with a Power of Attorney, allowing him to conduct business on her behalf. Moreover she bestowed him with her interest in the said premises. Such trust as reposed in him by his parents, he claims, led him to inject large sums of money into the funeral home. [29] By way of Counterclaim, Richard then sought the following: 1. A declaration that the 1 st and/or 3 rd defendants have acquired an equity coupled with an interest in the property known and assessed as No. 120 Coffee Street, San Fernando by virtue of their expenditure of monies thereon. 2. An order that the Claimants do repay the 1 st and/or 3 rd defendants all sums of money borrowed and/or expended on the said property together with the cost of borrowing and all related expenses which are to be calculated. 3. Damages for deceit and/or misrepresentation against the 1 st and/or 2 nd and/or 3 rd named claimants. 4. Interest. 5. Costs. Page 8 of 23

9 [30] When the matter came up for hearing on 10 th March 2006, I advised that the parties, being members of the same family, should attempt to resolve this dispute using an alternative path to litigation; namely mediation. I therefore adjourned the matter in the hope that the parties would settle their differences that way, rather than rely on the acrimonious trial procedure. [31] This was not to be. In the memorandum dated 8 th July 2006, I was informed that the mediation process had failed. [32] THE TRIAL EVIDENCE It is a well-established rule of law that He who asserts must prove. In this case therefore, the burden of proof lay on Jorsling and Enez to prove their claims as presented in the Statement of Case. Similarly, Richard bore the burden of establishing his Counterclaim. It is then for me, as the final arbiter of fact, to determine whether the parties have successfully satisfied each element of the individual causes of action which they have pleaded in their Statements of Case. [33] There were various means by which the parties purported to present their claims. Primarily affidavit evidence was tendered, throughout the course of these proceedings. In this regard, the affidavits of the following persons were presented: a. Jorsling on 27 th January 2006; b. Enez on 27 th January 2006; c. David Guide on 27 th January 2006; d. Richard on 8 th March 2006; e. Enez on 9 th March 2006; f. Diane on 10 th March [34] Then there was the evidence to be tendered at trial, which is the main form of evidence to be considered by a Court of law. By virtue of the Case Management Order dated 13 th Page 9 of 23

10 June 2007, the Court declared that the affidavits as filed were to stand as examination-inchief. Moreover Jorsling and Enez were given leave to file two (2) other witness statements on or before 28 th September It stood to reason that such witness statements would also stand as examination-in-chief. [35] Jorsling and Enez complied with this Order, so that the only other written form of evidence presented in these proceedings was witness statements. The following witnesses filed witness statements on behalf of Jorsling and Enez, in accordance with the Order dated 13 th June 2007: a. Patricia Carruthers on 28 th September 2007; and b. Beverly Guide-Williams on 28 th September [36] The trial came up for hearing on 21 st November What must be noted here is that none of the parties to this action attended on the day of the trial. In effect, only the two witnesses for Jorsling and Enez were produced for cross-examination. This is a startling state of affairs, especially in relation to those who were prosecuting a claim and not merely defending an action brought against them. This issue would be dealt with extensively below. [37] ISSUES The Court was therefore called upon to determine both the validity and probative value of the evidence presented by Jorsling and Enez in support of their claims and by Richard and Diane in support of his Defence and Counterclaim and her Defence, respectively. There were two types of evidence provided affidavits and witness statements. In deciding whether the parties have successfully satisfied the evidential burden thrust on them, I should consider the following issues: a) If the deponent is not produced for cross-examination and the Defendants have not waived their rights to cross-examine, what weight can be put on the affidavits as filed? Do they have any probative value? Page 10 of 23

11 b) Whether a witness statement can stand as evidence of the facts it purports to prove, if its author is not produced for crossexamination? c) In the absence of main testimony, what weight can be attached to corroborative evidence? In other words, whether the evidence provided by Jorsling and Enez s witnesses at the trial can successfully establish their claims or is the evidence merely corroborative? d) Whether a witness can tender hearsay evidence at the trial of the final issues? e) Whether the doctrine of issue estoppel applies in these circumstances? [38] ANALYSIS AND CONCLUSION a). If the deponent is not produced for cross-examination and the Defendants have not waived their rights to cross-examine, what weight can be put on the affidavit as filed? Does it have any probative value? An affidavit is defined as: A voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths [Emphasis mine] 1. An affidavit is therefore a statement of fact and evidence. It is the question of weight and probative value that is in issue in this case. It can be argued that because an affidavit is really sworn testimony, the evidence contained therein must be taken to be sufficient proof of the facts asserted. It is not disputed that an affidavit is prima facie evidence of the facts it seeks to support. An analysis of various rules demonstrates that the CPR 2 provides for the use of affidavits as evidence. [39] Rule 29.2(1) 3 states that the general rule is that any fact which needs to be proved at trial by the evidence of witnesses is to be proved by their oral evidence given in public. 1 Black s Law Dictionary [7 th edition] (1999) 2 Civil Proceedings Rules, 1998 as amended 3 Rule 29.2(1) of the CPR reads: Page 11 of 23

12 However, according to r. 29.2(2)(a) 4, this rule is subject to any other provision or a Court order to the contrary. One such provision to the contrary is contained at r. 31.1(1) 5, under which a Court can require that evidence be given by affidavit evidence instead of or in addition to oral evidence. When an affidavit is to be used as evidence, r. 31.1(3) 6 dictates that the deponent is mandated to attend for cross-examination if there is a Court Order to that effect. Failure to obey such an Order results in the nullification of the affidavit evidence, unless the Court orders otherwise: r. 31.1(4) 7. [40] In addressing the main issue of whether the affidavits can stand as evidence in the absence of cross-examination, the following sub-issues must therefore be determined: i. Whether any direction given by this Court ordered the attendance of the deponents to the various affidavits for cross-examination? ii. If yes, were these directions complied with? iii. If there was non-compliance with such directions, should the Court allow the affidavits to stand as evidence of the facts contained therein? [41] i. Whether any direction given by this Court ordered the attendance of the deponents to the various affidavits for cross-examination? On 13 th June 2007, at the Case Management Conference, I ordered inter alia: 1. Affidavits as filed, to be deemed to stand as Examination in Chief. Cross-examination only at the Trial. Claimants two other Witness Statements to be The general rule is that any fact which needs to be proved at trial by evidence of witnesses is to be proved by their oral evidence given in public. 4 Rule 29.2(2)(a) of the CPR reads: This is subject- (a) to any provision to the contrary contained in these rules or elsewhere; and (b) to any order of the court. 5 Rule 31.1(1) of the CPR reads: The Court may require evidence to be given by affidavit instead of, or in addition to oral evidence, a witness statement. 6 Rule 31.1(3) of the CPR reads: Whenever an affidavit is to be used in evidence, any party may apply to the court for an order requiring the deponent to attend to be cross-examined. 7 Rule 31.1(4) of the CPR reads: If the deponent does not attend as required by the court order, his affidavit may not be used as evidence unless the court permits. Page 12 of 23

13 filed and exchanged on or before the 28 th day of September Clearly this Court Order contemplated and moreover mandated that the deponents attend at the trial so as to be cross-examined. The affidavits and the witness statements were deemed to be their author s examination-in-chief at the trial. The Order then goes on to specifically provide for the authors of the documents to attend at the set trial date for crossexamination. It is therefore clear that the Order dated 13 th June 2007 commanded the attendance of the deponents to the affidavits for cross-examination at the trial. [42] ii. If yes, were these directions complied with? There was a flagrant failure on the part of the parties to comply with the Court Order. None of the parties to this action presented themselves at the trial. Each party, save Diane, alleged that he/she was suffering from medical conditions which precluded his/her ability to attend on the date set for trial. Neither opposing Counsel nor I had any prior notice of any of the parties intended absence from the trial. As a result, it was impossible to cross-examine any deponent on the affidavit(s) filed on their behalf. It would now be prudent to consider the effect of the actions of the individual parties to their respective claims. [43] Jorsling and Enez: It is not disputed that Jorsling and Enez are both elderly and suffered from physical ailments. There were various medicals to this effect tendered on behalf of both Jorsling and Enez, aged 89 and 85 respectively. Moreover I had the opportunity to assess their physical health at the several case management conferences. In the interest of their health, I excused their attendance from those hearings, but such permission did not extend to their attendances at the trial. [44] On the date of the trial - 21 st November 2007 Mr. Deonarine indicated that Jorsling was at his office. The Court offered to reconvene at this location, in keeping with its recognition of the parties age and health and under the jurisdiction provided for under r. 2.6 of the Page 13 of 23

14 CPR 8. This suggestion was not treated with by Counsel for Jorsling and Enez. Counsel insisted that he could prove his case without his client s attendance. Even in the face of Mr. Seenath s specific request that Jorsling be produced for cross-examination and my view that Jorsling ought to be present, Mr. Deonarine was steadfast in his view that he need not produce his client for cross-examination, but could prove his case without such attendance. He did not treat with Mr. Seenath s request. Mr. Deonarine proffered a medical certificate with respect to Enez, indicating her inability to attend Court. I accepted that certificate. [45] There are two aspects of this matter in relation to the non-production of witnesses. The first is Procedural and the second relates to the Rules of Evidence. [46] PROCEDURAL Since neither Enez nor Jorsling was made available for cross-examination at trial, there was clearly a breach of the Order of 13 th June 2007, though Enez had been excused by the Court on the morning of the trial. Under these circumstances the situation falls squarely within the ambit of r. 31.1(4) of the CPR and the various affidavits filed in these proceedings cannot be used as evidence of any of the facts they attempted to establish, unless the Court declares otherwise. No application was made by their Counsel for such a declaration. Furthermore, Mr. Seenath did not waive his right to cross-examine either Jorsling or Enez. [47] Richard and Diane: Similarly Richard and Diane failed to appear at the trial. Diane has never even attended a Case Management Conference save the first one conduct which was highly disrespectful. Richard, although he participated in some of the pre-trial stages of the proceedings, also failed to attend at the trial for cross-examination. The explanation tendered on his behalf was that he was receiving medical treatment abroad, one which, as 8 Rule 2.6 of the CPR reads: (1) The court may deal with a case at any place that it considers appropriate. (2) In considering what place may be appropriate the court must consider the convenience of such place to the parties and their attorneys. Page 14 of 23

15 I stated before, I did not accept. The absence of Richard at the trial is even more debilitating than Diane s absence, given the fact that Richard was the protagonist of a Counterclaim against his parents. Mr. Deonarine did not indicate his willingness to waive his right to cross-examine Richard or Diane. [48] MANAGEMENT ROLE of the COURT In managing the matters that come before them, Courts are obligated to bear the Overriding Objective in mind. According to r. 1.1(1) of the CPR 9, the overriding objective is to deal with cases justly. Included in that exercise is the concept that the Court must strive to ensure that all the parties to an action are treated equally: r. 1.1(2)(a) 10. [49] Therefore the same analysis conducted in relation to Jorsling and Enez must also be applied to Richard and Diane. The Court Order of the 13 th June 2007 never exonerated Richard or Diane from their duty to attend for cross-examination on his and her affidavit. Furthermore opposing counsel did not indicate that Jorsling or Enez was interested in waiving their right to cross-examination. It must therefore follow that the affidavits presented by Richard and Diane cannot be used at the trial. [50] RULES of EVIDENCE iii. If there was non-compliance with such directions, should the Court allow the affidavits to stand as evidence of the facts contained therein? CROSS-EXAMINATION and WEIGHT In deciding whether or not to exercise its discretion to permit the affidavits into evidence, the starting-point must be to understand the purpose of cross-examination. In this matter the Court is called upon to determine critical issues of fact. Its ability to do so lies in the weight to be attributed to the evidence provided by the parties. When the factual picture painted by the parties differs, the weight that a Court would attach to the evidence before it, is usually determined during cross-examination. 9 Rule 1.1(1) of the CPR reads: The overriding objective of these Rules is to enable the court to deal with cases justly. 10 Rule 1.1(2)(a) of the CPR reads: ensuring, so far as is practicable, that the parties are on equal footing. Page 15 of 23

16 [51] The significance of cross-examination can never be over-emphasized 11. This is the crucial stage of the trial process where evidence is tested. During cross-examination the Court has an opportunity to assess the value of the evidence based on the demeanour of the witness and the coherence and consistency in his responses. [52] There are numerous authorities emanating from the local jurisdiction that support this contention 12. Primarily the Court is not mandated to accept a statement as true merely because it has not been tested by cross-examination. In essence, even if any of the abovementioned affidavits were to be accepted into evidence the Court would still have to determine the weight to be ascribed to the evidence therein. [53] The need for cross-examination is particularly heightened when the Court is called upon to resolve issues of fact, as opposed to law. This is the task of the Court to resolve the various claims made in this matter. The learning clearly indicates that in situations such as these, affidavit evidence, on its own, may not fully be of assistance 13. For these reasons any Court would require, and I certainly required, the benefit of cross-examination. 11 Blackstone s Civil Practice, 2005, Paragraph (page 612) reads: The fact that the witness is not present, in the absence of some good reason, tends to indicate that the witness does not have confidence in the statement. It will not have been tested by crossexamination. It may not have been possible to show weaknesses or limitations I the evidence Live witnesses are also thought to have great impact with the court (for better or for worse, depending on how they perform in the witness box). The result is that, whenever possible, witnesses are called to give evidence at trials. 12 Per de la Bastide J in The Attorney General -v- M & M Brokers Limited (1996) 50 WIR 462, at page 473: The effect of an unanswered allegation contained in an affidavit is exactly the same as if that allegation had been made in the course of oral evidence. A court is likely to accept it unless it contains some inherent probability or conflicts with other evidence in the case, documentary or oral. This dictum was adopted in Alphonsus Mondesir -v- The Attorney General H.C.A. No of 1997, in which Sinanan J asserted, at page 21: Merely because an allegation is un-answered does not oblige the Court to accept it. The Mondesir Case is distinguishable from the current situation being contemplated. The witnesses in the Mondesir Case attended at the trial, but were not produced for cross-examination. In that case the learned Judge was indicating that disputed issues of fact could not be resolved solely based on untested testimony. In the present situation, however, the parties failed to attend at the trial at all. 13 At page 471 of Chamroo -v- Lookmin and Satnarine 13 WIR 470, Wooding CJ asserted: In our view, disputed issues of fact can only be properly resolved on viva voce evidence and no attempt should be made to resolve them on affidavit evidence only. This dictum was adopted In the Matter of an Application of Andy Allan H.C.A. No of 1990, where Blackman J said (page 4): Page 16 of 23

17 [54] The result is that in the absence of cross-examination, the Court can place little or no weight on the affidavit evidence 14. [55] As a result, even though I ordered the affidavits to be used as evidence-in-chief, I can attach little weight to the evidence contained therein. My reluctance to attribute any but little weight to the affidavit evidence is of course amplified in this instance where I am called upon to resolve conflicting issues of fact. [56] b). Whether a witness statement can stand as evidence of the facts it purports to prove, if its author is not produced for cross-examination? A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally 15. [57] OTHER ISSUES RAISED ON SUBMISSIONS In his Closing Submissions, Mr. Seenath contends that a witness statement only becomes evidence when adopted in the witness box. He finds support for this contention in the local and UK rules of procedure. Mere service of a witness statement does not suffice to bring it within the realm of evidence 16. Moreover the general rule, according to r. 29.9(1) of the CPR 17, is that where a party has served a witness statement and intends to rely on the where issues of fact are in dispute, the Court should at least be loathe to resolve them on affidavit evidence alone. Further, the Court should be reluctant to draw inferences in respect of facts in issue on affidavit evidence only the burden of proof lies on him who must prove facts and therefore where facts are disputed on affidavit, the person on whom the burden of proof lies should, in order to establish his case, seek the attendance of the other side for crossexamination mere preponderance of witnesses, whether on affidavit or otherwise, is not necessarily determinative of where the truth lies [Emphasis mine]. 14 This principle can be gleaned from the case of Industrial Gases Limited -v- Mitra Ramkhelawan and Sally Ramkhelawan (trading as Optimum Energy Technologies ) H.C.A. No. 218 of 2002, where Tam J made the following statement: The deponents were never produced for cross-examination and it goes without saying that little, if any, weight should be placed on their respective affidavits. 15 Blackstone s Civil Practice (2005), para (page 606) 16 Rule of the UK White Book (2007: Volume 1) reads: a witness statement does not become evidence by service. It becomes evidence by being adopted by the witness in the witness box as his evidence-in-chief. 17 Rule 29.9(1) of the CPR reads: Except where rule applies, if- (a) a party has served a witness statement; and (b) he wishes to rely on the evidence of the witness who made the statement, he must call the witness to give evidence unless the court orders otherwise. Page 17 of 23

18 evidence of the author of same, he must call the witness to give evidence unless the Court orders otherwise. Mr. Seenath then concludes that Jorsling and Enez s evidence must be rejected out of hand, because of their failure to attend at the trial. [58] That a witness statement must be adopted in the witness box before it becomes evidence is not disputed. However, as mentioned above, the only witness statements presented in relation to this matter were provided by the witnesses for Jorsling and Enez. These witnesses did attend at the trial, were sworn in, adopted the contents of their statements as true and correct and submitted themselves to cross-examination. [59] Thus Mr. Seenath s submission is moot, in light of the fact that the authors of the witness statements were present at the trial. The witness statements did enter the realm of evidence. What is left is for the Court to determine the probative value of this evidence. [60] c). In the absence of main testimony, what weight can be attached to corroborative evidence? In other words, whether the evidence provided by the Claimants witnesses at the trial can successfully establish the Claimants claim or is the evidence merely corroborative? As previously mentioned, the more pertinent question to be addressed with respect to the witnesses for Jorsling and Enez is whether their evidence can establish the causes of action pleaded on the Statement of Case. [61] A witness can only testify to matters, which are within his/her own knowledge 18. Witnesses are called during the course of a trial to corroborate the facts as asserted by the parties to the action. Witnesses corroborate these facts by recounting facts, which they have personally observed and which tend to support the allegations made by that party. 18 Rule of the White Book (2007: Volume 1) reads: A witness statement (or an affidavit) should be in the witness own words and should be restricted to matters to which the witness himself could readily speak if cross-examined on it (Alex Lawrie Factors Ltd -v- Morgan The Times, 18 th August 1999). Page 18 of 23

19 [62] I have already decided that Jorsling and Enez have not provided any evidence which was tested so as to be considered in my deliberation of their claim. If this is so, then what evidence would the witnesses be corroborating by their testimony? The witness statements and the cross-examination of their witnesses therefore exist in a vacuum. It serves no purpose, as Jorsling and Enez failed to provide any facts for consideration, which their witnesses testimony could be said to support. [63] Furthermore in pronouncing on the viability of Jorsling and Enez s case I should have had to make findings of fact on their intentions and actions throughout the course of their dealings with Richard and Diane. These are not matters to which their witnesses could have spoken to since they cannot be said to have been within their minds. The source of any evidence rendered in this regard must come from Jorsling and Enez themselves and not through any observation, independent or otherwise, of these witnesses, no matter how close a relationship they share. [64] It is therefore adjudged that the evidence tendered by Jorsling and Enez s witnesses is of no probative value and would be insufficient in establishing Jorsling and Enez s case. [65] d). Whether a witness can tender hearsay evidence at the trial of the final issues? As alluded to above there is another hurdle that Jorsling and Enez would have to cross. That is, whether the evidence provided by their witnesses could fill the lacuna identified above. It cannot have this effect, because their evidence amounts to hearsay. [66] It is trite law that hearsay evidence is generally inadmissible, save in specifically defined circumstances. Some of the instances where hearsay evidence is accepted into evidence are contained in the EVIDENCE ACT 19. In relation to civil proceedings, s. 37 deals with the admissibility of out-of-court statements, which in any event only becomes evidence of the facts stated therein; s. 39 speaks to the admissibility of certain records and s. 40 deals with computer records. 19 CH 7:02 Page 19 of 23

20 [67] The evidence provided by these witnesses does not fall within the ambit of any of these sections of the EVIDENCE ACT. Nor do they relate to any other exception to the general hearsay rule. Jorsling and Enez would therefore be precluded from relying on the evidence of these witnesses. [68] In addition, Mr. Deonarine concedes that the evidence submitted by Enez is predominantly hearsay evidence, as she was unable to attend the trial by reason of physical infirmity. In his Written Submissions, he asserts that the mere fact that her evidence amounts to hearsay does not preclude its admissibility. His allegation is founded on the fact that this Claimant served a Notice of Application dated 5 th November 2007 seeking to rely on her hearsay evidence, pursuant to r. 30.2(1) of the CPR 20. [69] It is important to remember that the advent of the CPR has merely restated for the most part and in some cases altered the procedure to be followed in relation to the conduct of civil matters. The substantive law remains completely unaltered. In this vein, the rules in relation to the admissibility of hearsay evidence have not been affected by the coming into force of the CPR. This is evident in relation to r. 30.2(1), since the hearsay notice may only be served where hearsay evidence was admissible in the first place; namely under ss. 37, 39 or 40 of the EVIDENCE ACT. [70] There was absolutely no indication that Jorsling and Enez s case fell within the purview of any of these sections. As such, Enez would have never been permitted to tender hearsay evidence. By extension the hearsay notice served is of no effect. In any event, the procedure for serving this notice was not complied with: insufficient notice was given: r. 30.2(2); the requisite contents of the notice were omitted: r. 30.3(2)(c) and there was no Court Order finalizing the ability to utilize the hearsay evidence: r In relation to the factual matrix before the Court, the short answer to this question must be no. 20 Rule 30.2(1) of the CPR reads: Any part who wishes to give hearsay evidence which is admissible only by virtue of sections 37, 39 or 40 of the Act must serve on every other party a hearsay notice. Page 20 of 23

21 [71] e). Whether the doctrine of issue estoppel applies in these circumstances? The doctrine of collateral estoppel, or issue estoppel as it is more commonly referred to, has been defined as: An affirmative defense barring a party from relitigating an issue determined against that party in an earlier action, even if the second action differs from the first one 21. [72] The doctrine therefore prevents a Claimant from instituting a fresh action, in relation to the same issues, which a Court of competent jurisdiction has already pronounced upon. That is to say, one is not entitled to the proverbial second bite of the cherry. [73] The case of Carl Zeiss Stiftung -v- Rayner & Keeler Limited (No. 2) 22 lays down the test, which determines whether issue estoppel applies. Subsequent litigation would be barred by virtue of the principle of issue estoppel, where there was: a. a final judgment in the earlier proceedings; b. identity of subject matter; and c. identity of parties. [74] The doctrine of issue estoppel is vital because it encapsulates the principle that there must be finality in litigation 23. Such finality would not be possible if parties were permitted to constantly bring actions in relation to the same issues, which had been previously decided Black s Law Dictionary (7 th edition) [1999] (1967) 1 A.C. 853, per Lord Reid at pages 909 and 910. In Ord -v- Ord (1923) 2 KB 432, Lush J (page 439) stated: The words res judicata explain themselves. if the res the thing actually or directly in dispute has been already adjudicated upon, of course by a competent court, it cannot be litigated again [Emphasis mine]. These dicta were adopted in the local jurisdiction in the cases of Winifred Hyacinth -v- Angela Mathias Mitchell H.C.A. No of 1986 and In the Matter of an Application by Ibrahim Noumeh for a Writ of Habeas Corpus H.C.A. No. 531 of Paragraph 479 of Halsbury s Laws of England states: The doctrine of res judicata is not a technical doctrine applicable only to records; it is a fundamental doctrine of all courts that there must be an end to litigation it amounts to an allegation that the whole legal rights and obligations of the parties are concluded by the earlier judgment which may have involved the determination of questions of law as well as findings of fact. Page 21 of 23

22 [75] By contrast, there are various circumstances where a matter is determined without any decision on the merits being rendered. In other words, the first limb of the test would not be satisfied. For instance, a Court may strike out a claim if allowing the matter to proceed would amount to an abuse of process. In such circumstances, there is no real adjudication and the claim may be reinstituted 24. The sole restriction on the parties ability to relitigate in such circumstances is that subsequent claims must be brought within the limitation period 25. [76] In the present case, I have not adjudicated on any of the issues raised. My decision is based on the procedural deficiencies that were manifest in the conduct of this trial. The actual merits of the claims pleaded have not been analysed. [77] In the circumstances, my decision does not stultify the ability of these parties to institute fresh proceedings, for the same relief, once the actions fall within the relevant limitation period. [78] CONCLUSION The parties, in not submitting themselves to cross-examination, denied the Court the opportunity of attaching any weight to their affidavit evidence. The only tested evidence available in this matter was the Witness Statements in relation to the Claimants case. However such evidence constituted hearsay and was therefore inadmissible, since it did not fall within the ambit of any of the noted exceptions to the hearsay rule, which would have made the evidence admissible. [79] In the final analysis, the Court was unable to determine whether the elements of the various causes of action pleaded had been satisfactorily established. As a result, the This was the conclusion arrived at in Leonard Williams -v- Leroy Williams Civil Suit No. 28 of 1999 (St. Christopher and Nevis) and Bobolas -v- Economist Newspaper Ltd. [1987] WLR At page 301 of Securum Finance Limited -v- Ashton and another [2000] 3 WLR 1400, Chadwick LJ had this to say: The judge held, correctly in my view, that no question of res judicata or estoppel arose in relation to those issues. The reason was that there had been no adjudication upon those issues. Securum Finance Limited -v- Ashton and another [2000] 3 WLR 1400 Page 22 of 23

23 claim and counterclaim for the various reliefs all stand dismissed. There being no adjudication on the merits of the case, the doctrine of issue estoppel does not attach. [80] COSTS The general rule under the CPR is that a successful party is entitled to his costs 26. On the other hand, a Court also has an inherent jurisdiction to decide whether costs should be awarded at all. [81] Family disputes do not belong within the confines of a courthouse. The matter has now come to an end and it is now time for the parties to make amends and attempt to rekindle the sparks of what was once a close family relationship. Any liability in costs would only serve to stultify this spirit of healing. There is therefore no order made as to costs. [82] ORDER It is hereby ordered as follows: 1. The Claim Form dated and filed on 27 th January 2006 be and is hereby dismissed; 2. The Counterclaim of the First and Third Defendants dated and filed on 9 th October 2006 be and is hereby dismissed; 3. The Injunction granted against the Defendants on 16 th February 2006 be and is hereby discharged; and 4. There shall be no order as to costs. Dated this 28 th day of May /s/ CHARMAINE PEMBERTON HIGH COURT JUDGE 26 Rule 66.6(1) of the CPR reads: If the court, including the Court of Appeal, decides to make an order about the costs of any proceedings, the general is that it must order the unsuccessful party to pay the costs of the successful party. Page 23 of 23