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REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
C.V. No. 2014-02922
BETWEEN
JOCOBES COMPANY LIMITED
Claimant
AND
COURTNEY’S RACING SERVICE First Defendant
JOHN COURTNEY DOOKIE Second Defendant
Before the Honourable Mr. Justice Robin N. Mohammed
Appearances:
Mr. Terrence Bharath instructed by Mr. Imran Ali for the Claimant
Mr. Nirad Samnadda-Ramrekersingh and Mr. Lemuel Murphy for the Defendants
_____________________________________________________________________________________
Decision in respect of Claimant’s Evidential Objections and the Request for Judgment
Pursuant to Part 68.7(1) of the Civil Proceedings Rules 1998
______________________________________________________________________________
Page 2 of 27
DECISION
I. Introduction.
[1] This matter concerns a claim for recovery of possession of a parcel of land and a
commercial building upon it. On 11 August 2014, the claimant initiated a claim against the first
and second defendants for recovery of possession of one lot of land situate at No. 84 Western
Main Road, St. James, inclusive of a commercial building erected thereon more particularly
described in a Deed Registered as DE201000379739 (hereinafter referred to as “the property in
dispute”). The claim was made by fixed date claim form and pursuant to Part 68 of the Civil
Proceedings Rules 1998 (CPR). A single affidavit of Ms. Lu-Ann Forbes was filed in support
of the claim.
[2] Both defendants entered appearances to the claim on the 19 August 2014. On the 17
September 2014, two affidavits in defence of the claim were filed, namely, the affidavit of the (i)
second defendant and (ii) Roman Aquing. The defence to the claim is the same for both
defendants.
[3] At the first hearing of the Fixed Date Claim, counsel for the claimant made
evidential objections to certain statements deposed to in the two affidavits filed by the defence.
On the basis of the evidential objections, counsel for the claimant made an oral application to the
court to strike out the statements (which are later specified in this decision) from the respective
affidavits. Counsel for the claimant also submitted that pursuant to Part 68.7(1) of the CPR the
Court ought to give judgment at this point in the proceedings on the ground that the defendants
do not have a defence with a realistic prospect of success.
[4] Having reviewed the law and applied them to the facts of the instant matter, I have
concluded that there is merit in some, though not all of the claimant’s evidential objections. Thus
I have specified those statements, deposed to in the two respective affidavits filed by the defence,
which are struck out from consideration in the affidavit evidence. Moreover, and in any event, I
have concluded that pursuant to Part 68.7 of the CPR judgment is to be granted in favour of the
claimant in this matter, as the defendants have not satisfied the court that any defence has been
put forth which has a realistic prospect of succeeding in this claim for recovery of possession.
[5] I have hereinafter canvassed the reasons for my decision.
Page 3 of 27
II. Factual Background
[6] The claimant is a duly registered company incorporated under the Companies Act1.
It is agreed by all the parties in the instant matter, that the claimant has since December 2009 to
present been the title or legal owner of the property in dispute by virtue of Deed of Conveyance
dated 14 December 2009 and registered as No. DE201000 3797 39.
[7] The first defendant is a business registered under the Registration of Business
Names Act2. It is a Betting Office. The second defendant is presently the sole registered owner of
the first defendant. The issues in this claim are born from the fact that the first defendant is
presently in sole occupation and possession of the property in dispute which is owned by the
claimant.
[8] Lu-Ann Forbes, the Managing Director of the claimant, deposed that the claimant
was originally in possession of the property in dispute in November 2008. The claimant had at
that time held the property in dispute as a lessee under a long term lease as evidenced by Deed
No. DE2009 009906 95 dated 20 November 2008. While the claimant was in possession of the
property in dispute, a change of ownership of the claimant took place. In October 2009, Michael
Charles purchased the claimant from its former directors, thenceforth becoming the owner and
sole shareholder of the claimant. The second defendant also became the secretary and a director
of the claimant.
[9] Both parties deposed that in December 2009 Michael Charles then used his own
finances to purchase the property in dispute and further put the property in dispute in the name of
the claimant which came to hold the legal title of same by the aforementioned Deed of
Conveyance dated 14 December 2009 and registered as No. DE201000 3797 39. However, the
claimant was then relocated to No. 85 Queen Street, Port-of-Spain, even though it maintained
ownership of the property in dispute. The facts that follow are largely in dispute.
[10] According to the affidavit evidence of Ms. Forbes for the claimant, when Michael
Charles acquired ownership of the claimant, he told her that he intended to use the property in
dispute to establish a betting shop for horse races. Ms. Forbes further deposed that in her
1 Chap. 81:01.
2 Chap. 82:85.
Page 4 of 27
capacity as Michael Charles’ common law wife, she was personally aware that Michael Charles
then demolished the structure which previously stood on the land of the property in dispute and
financed the construction of the commercial building which today stands upon the property in
dispute.
[11] Ms. Forbes averred that in 2009 Michael Charles discussed with her and then
agreed to allow the property in dispute to be used by the first defendant as a gambling and
betting shop. She noted that the first defendant was originally a partnership between Michael
Charles and the second defendant that was registered on 30 September 2011, and further noted
that prior to the formation of the partnership the second defendant was removed as a director and
secretary of the claimant on 14 February 2011. She stated that no formal document was executed
in relation to the permission that the first defendant received to occupy the property in dispute
and specified that the first defendant occupied the premises as a licensee determinable at any
time by the claimant. According to Ms. Forbes, after the death of Michael Charles on 11
December 2013, the first defendant continued operations at the property in question. No rent was
ever paid to the claimant, and Ms. Forbes insisted that no tenancy existed between the claimant
and the defendants. It is in those circumstances that Ms. Forbes deposed that the claimant
resolved to end the licence of the first defendant and recover possession of the property in
dispute.
[12] However, the second defendant challenged Ms. Forbes’ version of the facts. The
second defendant firstly insisted that Ms. Forbes was not the common law wife of Michael
Charles. The second defendant deposed that Michael Charles was his close friend of many years
and he never knew Michael Charles to have cohabited with Ms. Forbes. Moreover, the second
defendant deposed that after the property in dispute was purchased by Michael Charles in the
name of the claimant, the second defendant then took charge of everything related to the setting
up of the first defendant as was agreed by Michael Charles to be the intended use for the property
in dispute.
[13] To this end, in contrast to what was deposed by Ms. Forbes, the second defendant
deposed that the reason he ceased to hold office was not because he was removed in any negative
sense but because he wanted to concentrate more on the set-up and operations of the first
defendant. Thus, according to the second defendant it was he who had the former building
Page 5 of 27
demolished, sought the relevant approvals, and designed, constructed and outfitted the
commercial building that presently houses the first defendant on the property in dispute.
[14] He therefore stated in his affidavit that it was untrue to say that Michael Charles
agreed to allow the property in dispute to be used by him to carry out the business of the first
defendant. Rather, in summary, the second defendant emphasised that the property in dispute
was identified and purchased for the sole purpose of the operation of the first defendant which
was set up to operate in partnership with Michael Charles. The second defendant deposed that
funds were provided by both himself and Michael Charles for the various activities necessary for
the set up of the first defendant including the construction of the building to house the business.
He was adamant that it was misleading for Ms. Forbes to imply that Michael Charles had solely
funded and was responsible for those activities.
[15] According to the second defendant, at all material times, he and Michael Charles
operated the first defendant as a partnership. The second defendant admitted that no formal
documentation was done to outline the agreed arrangement under which the partnership would
operate. However, he swore that the agreed arrangement was that:
a) the first defendant would be housed at the property in dispute;
b) the costs of equipping and outfitting the building would be eventually set off/paid
from the proceeds of the first defendant;
c) the second defendant would run and operate the business and be paid a salary for
same (though the second defendant stated that he never took a salary);
d) the equipment, furniture, fittings and any other items used by the first defendant
would be owned by the partnership when paid off;
e) that both partners would share the profits and assets equally subject to the settling of
the costs of the equipment, furniture, fittings etc and prior to such settlement they
would share profits on a 25% (second defendant) 75% (Michael Charles) basis with
the costs being dealt with from the 75%;
f) the proceeds from the business were to be deposited in an account held by Michael
Charles which was initially in the name of Michenn Ltd and then changed to Micjay
Ltd (a company owned by Michael Charles); such deposits to be done via a linx
machine; and
Page 6 of 27
g) Michael Charles would fund an overdraft facility in respect of the annual operation
of the business.
[16] The second defendant went further to state that he provided approximately
$910,000.00 to set up the first defendant and the activities associated with it. Additionally, the
second defendant alleged that there was an arrangement that rent could be paid in the amount of
$20,000.00 per month in 2014. However, he stated that that arrangement was alleged to be at the
second defendant’s discretion, but then Michael Charles passed away in December 2013.
[17] The second defendant did not dispute that after the death of Michael Charles in
December 2013, the second defendant continued the operations of the first defendant at the
property in dispute, though he did so as a sole registered owner of the first defendant. He added
that although he had not paid the $20,000.00 rent, during the period 5 February 2014 to 16 May
2014 monies were still paid into the account of Micjay Ltd via a linx machine to which he had no
access. Such monies totalled $141,640.00. The second defendant emphasised that during that
period Ms. Forbes was a director of Micjay Ltd. Therefore, the second defendant considered that
to be the rent for the building and he therefore argued that it would be untrue to say that there
was no tenancy in existence.
[18] Furthermore, the second defendant stated that Ms. Forbes occasionally came to the
first defendant before Michael Charles died to collect money from the business. He stated that in
January 2014, Ms. Forbes came and informed him that the rent would be varied to $25,000.00.
He further stated that Ms. Forbes had, however, asked him to accept a receipt of $15,000.00
while she would not issue a receipt of the remaining $10,000.00. The second defendant said that
while he had no issue with the variation in rent, he did not agree to the manner of issuing receipts
that was proposed by Ms. Forbes.
[19] In her reply to the second defendant’s affidavit, Ms. Forbes denied ever having any
such conversation with the second defendant concerning the “varying” of rent. She insisted that
the second defendant neither paid nor offered any rent to her for occupation of the property in
dispute. Ms. Forbes was firm in her position that the defendants were not tenants and there was
never any agreement made to that effect.
Page 7 of 27
[20] Rather, Ms. Forbes deposed that in or around February 2014, she notified the
second defendant of the decision of the claimant to determine the licence which had been granted
to the first defendant to permit occupation of the property in dispute. She stated that the second
respondent stated that he would not vacate the property in dispute. The second defendant,
however, denied ever being aware of any resolution of the claimant to determine any licence as
alleged and noted that no evidence was exhibited in support. Moreover, he was adamant that Ms.
Forbes never visited the premises in February 2014 to inform him of any such resolution or to
tell him to vacate the premises.
[21] Nonetheless, Ms. Forbes deposed that in line with her account of the event, when
the defendants refused to vacate the property in dispute, she consequently sought legal advice
and was told that the defendants had no legal right to remain in occupation of the property in
dispute after the licence had been determined. Subsequently, on 26 June 2014, Ms. Forbes
retained the services of a registered bailiff, Mr. Edward Soon, to evict the defendants. On that
same date, Mr. Soon was initially able to take possession of the property in dispute but according
to Ms. Forbes, officers of the St. James Police Station then came to the property in dispute and
without any warrant, entered the building and allowed the second defendant to re-take possession
after the officers declared that Mr. Soon’s actions were illegal. 3
[22] In a letter dated 27 June 2014, counsel for the claimant wrote the first and second
defendant to inform them that they had no right to continue in occupation of the property in
dispute and requiring them to vacate immediately. The defendants refused to vacate. Rather, on 2
July 2014 counsel for the defendant responded to the claimant’s letter stating that the defendants
had an equitable interest in the property, and that the right of the claimant was therefore subject
to that interest.
[23] The second defendant noted in his affidavit that he currently has eighteen
employees working for the first defendant. He emphasised that should the claimant repossess the
property in dispute, he would be forced to close the business, retrench the employees and lose all
the time, energy and money he invested and contributed to same.
3 Though it is not necessary to further detail the events concerned with the attempted repossession of the property in
dispute by the claimant, it is noted that the event was primarily witnessed by Mr. Roman Aquing (the Manager of
the first defendant) and thus deposed to in detail in his affidavit.
Page 8 of 27
III. Issues Arising for Decision
[24] In light of the affidavit evidence as well as the oral and written submissions before
the court, the two main issues which have arisen for decision are:
A. whether certain statements deposed to in the two affidavits filed by the defendants
are to be struck out in light of the evidential objections raised by counsel for the
claimant; and
B. (independent of the first issue) whether judgment ought to be given in favour of the
claimant, at this stage in the proceedings, on the ground that the defendants have
not satisfied the court that they have a defence to the claim which has a realistic
prospect of succeeding.
I now address each of these issues in turn.
IV. The Law and its Application to the Instant Matter
A. Whether certain statements deposed to in the two affidavits filed by the defendants are
to be struck out in light of the evidential objections raised by counsel for the claimant
(i) Submissions
[25] The claimant objected to statements made in paragraphs 8, 10, 16, 19, 25, 27, 28, 29
and 30 of the affidavit of the second defendant, and additionally, objected to statements made at
paragraphs 7, 8, 9, and 10 of the defence affidavit of Roman Aquing. The grounds for these
objections included, that:
(i) the deponent had no personal knowledge of the information and failed to
provide the source of the information he purported to provide, nor had he
provided the basis on which he believed that information to be true;
(ii) the deponent sought to give his opinion on matters of law which he was not
competent to do;
(iii)the purported statements are hearsay evidence prepared by a person or entity
who is not before the court, without there being any authentication of the
purported statements; and
Page 9 of 27
(iv) in deposing to certain statements/exhibits, the deponent failed to provide the
important particulars related to his claim, therefore making the
statements/exhibits irrelevant to the proceedings.
Counsel for the claimant premised these evidential objections on the contention that the instant
proceedings which are pursuant to Part 68 of the CPR were final proceedings, and therefore
certain admissible hearsay ought not to be allowed in the same manner as it would be in
interlocutory matters where the trial process would give the parties an opportunity to further
cross-examine on matters deposed to or to file supplemental affidavits on matters deposed which
required further clarification.
[26] In reply to the claimant’s evidential objections, the defendants firstly disagreed that
the instant proceedings which are pursuant to Part 68 of the CPR were final proceedings.
Counsel for the defendants submitted that proceedings pursuant to Part 68 of the CPR are
interlocutory proceedings. Counsel contended that Part 68.7(1) of the CPR gives the court
jurisdiction to give a final judgment in circumstances whereby the defendant does not satisfy the
court that he has a defence with a realistic prospect of success. According to counsel for the
defendants, the fact that Part 68.7(1) gives the court jurisdiction to give final judgment in those
circumstances, does not of itself make proceedings pursuant to Part 68 final proceedings
because, in circumstances in which the defence has a realistic prospect of success, in accordance
with Part 68.7(3) of the CPR the court would have to give directions for the matter to proceed
as if the hearing were a case management conference, that is, the hearing of the matter would
proceed as would normal interlocutory proceedings.
[27] On that premise, counsel for the defendant contended that certain admissible
hearsay ought therefore to be allowed by the court so as to enable the defendants to establish
their defence. The acceptance of the truth of the statements was really a question to be decided
by the court regarding the weight to be given to the statements. Additionally, counsel for the
defendants contended that when the two respective affidavits are taken as a whole and within
context, it is clear that some of the statements which were objected to were indeed within the
personal knowledge of the deponents. Moreover, counsel for the defendants submitted that
some of the statements objected to by the claimant deposed information which was not in
dispute and therefore ought not to be struck out.
Page 10 of 27
[28] Importantly, however, counsel for the defendants in his oral submissions at the
hearing held on 5 November 2014, admitted and agreed that the following statements which
consist of some of the statements objected to by the claimant, are to be struck out from the
respective affidavits:
From the affidavit of the second defendant
(i) the last sentence of para. 8 – “Further, his staying by his ex-wife is inconsistent with
any such co-habitational relationship”;
(ii) the entirety of para. 10 – “It is however incorrect to say that the Claimant is the
owner of the building thereon as alleged”; and
(iii) The last sentence of para. 28 – “It was therefore untrue to say that there was no
tenancy in existence.”
From the affidavit of Roman Aquing
(iv) the latter part of the second sentence of para. 8 that states – “...and I am aware that
Courtney Dookie was responsible for erecting the building and setting up the
business”;
(v) the last two sentences of para. 9 – “I am aware that Courtney Dookie did not have
access to the funds in this account. Further, I am aware that after Michael Charles
died, Ms. Forbes was the only person with access to that account”; and
(vi) the last sentence of para. 10 – “I am also aware that monies would have been
accessed by Michael Charles from the Micjay account as aforesaid”.
(ii) Law and application
(a) Preliminary Issue to Evidential Objections
[29] The preliminary issue to the evidential objections is whether proceedings for
possession of land under Part 68 of the CPR should be considered interlocutory or final
proceedings. The importance of this determination is its effect on the statements that would be
admissible in the affidavit evidence filed in support of the proceedings. To this end, Part 31.3
of the CPR provides guidelines as to the content of an affidavit, as follows:
“31.3 (1) The general rule is that an affidavit may contain only such facts
as the deponent is able to prove from his own knowledge.
(2) However, an affidavit may contain statements of information and
belief –
Page 11 of 27
(a) where any of these Rules so allows; and
(b) where it is for use in any procedural or interlocutory
application or in an application for summary judgment,
provided that the source of such information and the
ground of such belief is stated in the affidavit.
(3) The court may order that any scandalous, irrelevant or otherwise
oppressive matter be struck out of any affidavit.
(4) No affidavit containing any alteration may be used in evidence
unless such alterations have been initialled by the person before
whom the affidavit was sworn.”[Emphasis added]
[30] Thus, consistent with Part 31.3(1), hearsay evidence is generally not allowed in
affidavit evidence. The exception to that rule is provided at Part 31.3(2). That exception is that
hearsay evidence that constitutes statements of information and belief will be permitted,
provided that the source and grounds for such belief are stated, where the rules allow for its use
in:
(i) a procedural application;
(ii) an interlocutory application; or
(iii) an application for summary judgment.
[31] Proceedings under Part 68 are undoubtedly neither a procedural application nor an
application for summary judgment as dealt with at Part 15. Further, I am not of the view that it
is to be considered an interlocutory application for that would defeat its nature as a fixed date
claim and the purpose of providing specifically for summary proceedings for possession of land.
I am of the view that summary proceedings for possession of land under Part 68 of the CPR
are to be treated in the same manner as final proceedings. Therefore, affidavits in support of
such proceedings should contain only such facts as the deponent is able to prove from his own
knowledge.
[32] The relevant part of Part 68 provides as follows:
“68.7 (1) At the hearing the general rule is that the court must give
judgment unless there is a defendant who attends and satisfies
the court that he has a defence with a realistic prospect of
success.
(2) Nothing in this Part prevents the court from ordering possession
to be given on a specified date.
(3) If judgment is not given the court must give directions as if the
hearing were a case management conference.
Page 12 of 27
(Parts 25 to 27 deal with case management conferences)” [Emphasis
added]
[33] Thus, when the whole Part is considered, Part 68.7(1) mandates that the court
must give final judgment at the first hearing unless there is a defendant who satisfies the court
that he has a defence with a realistic prospect of success. Part 68.7(3) then makes it clear that if
the court concludes that the defendant has a defence with a realistic prospect of success then the
court must proceed to give further directions in the matter as if the hearing were a case
management conference. It is the latter provision that counsel for the defendant has premised
his contention that Part 68 proceedings are interlocutory. I cannot, however, agree that the
inclusion of Part 68.7(3) would have had the effect of making proceedings under Part 68
interlocutory proceedings.
[34] Part 68 of the CPR has much of the same effect as Order 94 of Trinidad and
Tobago’s former Orders and Rules of the Supreme Court4 (hereinafter referred to as “the Old
Rules”), which Part 68 replaced. Under the Old Rules, the relevant parts of Order 94
concerning summary proceedings for possession of land, provided:
1. Where a person claims possession of land which he alleges is occupied
solely by a person or persons (not being a tenant or tenants holding over
after the termination of the tenancy) who entered into or remained in
occupation without his licence or consent or that of any predecessor in
title of his, the proceedings may be brought by originating summons in
accordance with the provisions of this Order.
........
6.(1) A final order shall not be made on the originating summons except by
a Judge and shall, except in the case of urgency and by leave of the
Court, not be made less than 7 clear days after the date of
service.”[Emphasis added]
[35] In respect of the type of proceedings effected by Order 94, the court in Gilmore
Cruickshank v Margaret Cruickshank and anor5 commented that such proceedings were
summary in nature and therefore the hearing of an application under Order 94 was tantamount
to the initiation of the trial itself. Armour J (as he then was) explained at page 2 of his judgment:
“Applications under Order 94 are summary by name and in their nature.
They are to be heard and dealt with expeditiously. Order 94 provides an
exceptional machinery for possession of land, to be utilized jealously. The
4 RSC 1975
5 HCA No. S451 of 1998
Page 13 of 27
White Book 1995 [The Supreme Court Practice 1995 Volume 1 page 1622]
tells us of the scope of the order. In their commentary on the equivalent
English Rule, Order 113, the authors tell us that its ‘....application...is
narrowly confined to the particular circumstances described in rule 1, i.e.
to the claim for possession of land which is occupied solely by a person or
persons who entered into or remain in occupation without the licence or
consent of the person in possession or of any predecessor of his...this Order
also applies to a person who has entered into possession of land with a
licence but has remained in occupation without a licence...The Court...has
no discretion to prevent the use of this summary procedure where the
circumstances are such as to bring them within its terms, e.g. against a
person who has held over after his licence to occupy has terminated.’.”
And then at page 4 to 5 he concludes,
“For these reasons they [the defendants] contend that issues of equity and
estoppels have arisen and that this application [for summary possession of
land by originating summons] must fail. [The defendants contended it]
must be sent to trial. I am afraid this is the trial. By summary process. I
have considered the evidence before me on affidavit. I find it less than
conceivable that the Plaintiff and Viola Cruickshank have gone to the
trouble they did in effecting the transfer, for valuable consideration, in
order to provide the Defendants with a home for the rest of their lives.”
[Emphasis added]
[36] There is little difference between proceedings for summary possession of land by
originating summons under Order 94, and proceedings for summary possession of land by
fixed date claim form under Part 68. It is true to say that an originating summons under Order
94 was an originating process and not an interlocutory application. Proceedings under Part 68
which are brought via fixed date claim form are much the same. The rephrasing of the rule in
the manner expressed in Part 68.7 of the CPR merely acknowledges the case management
function of the court under Parts 25 and 26 of the CPR which came into being with the
implementation of the new civil proceedings rules. However, the effect of the fixed date claim
form, like the originating summons, is to commence proceedings and the affidavits in support
provide evidence in the proceedings. Thus, I agree with counsel for the claimant, that it is as
though the affidavit evidence is being given to support the claim as a witness would in the
witness box and as a consequence, consistent with Part 31.3(1) of the CPR only evidence
which the deponent is able to prove from his own knowledge is admissible.
[37] It therefore follows that the exceptions provided at Part 31.3(2) of the CPR, to the
general rule in respect of hearsay evidence, do not apply to the instant proceedings. Thus, a
Page 14 of 27
deponent in the instant proceedings ought not to depose to statements of information and belief
and any such statements are to be struck out from the affidavits. And I so hold.
(b) The evidential objections
[38] Bearing the aforementioned principles in mind, I now turn to those evidential
objections which were made by the claimant on the basis that the two deponents for the
defendants deposed to information that was not within their personal knowledge and further
failed to provide the source of the information deposed as well as the basis upon which the
information was believed to be true.
[39] Regarding the objections to the statements in paragraphs 7 to 10 of the affidavit of
Roman Aquing, counsel for the claimant contended that Roman Aquing failed to provide the
source of the information he purported to give, nor had he provided the basis on which he
believed that information to be true. The claimant’s objections were premised on the fact that
Roman Aquing deposed that he only worked at the first defendant during the period 12 June
2013 to 15 July 2014. However, he does not state how he came to amass all the information,
some of which may have taken place prior to his employment with the first defendant. The
contention is, therefore, that Roman Aquing had no personal knowledge of the information that
is being objected to in paragraphs 7 to 10. The following information is what the court has been
asked to strike out on this basis:
(i) para. 7 - “I am aware that [the first defendant] was initially operated as a
partnership between [the second defendant] and Michael Charles up until the death
of Michael Charles in December,2013. Subsequently [the second defendant] operated
the business solely”;
(ii) para. 9 – “….The account that these monies were deposited into was in respect of the
linx account in the name of Micjay Ltd., a company in which I am aware Michael
Charles was the sole shareholder and to which he had sole access”; and
(iii) para. 10 – “I am aware that [the second defendant] and Michael Charles had an
arrangement for the running of [the first defendant]. Due to their close relationship, I
am aware that Michael Charles let [the second defendant] essentially run the
business on his own without any input aside from monetary injections from time to
time but mainly at the beginning of the year to assist with licence fees and operating
capital.”
Page 15 of 27
[40] I disagree with counsel for the claimant that these matters were not within the
personal knowledge of Roman Aquing. From the outset in his affidavit, Roman Aquing deposed
that he was the former Manager of the first defendant. This, no doubt, would have put him in a
position in which he is likely to have been knowledgeable of the matters deposed in the afore-
stated paragraphs. As expressed in the case of United Engineering Services Ltd v Hafeez
Karamath Ltd6 at paras. 3 to 6:
“3. Companies act through directors, officers and employees.....4.....the
company’s representative, can give evidence of matters within his personal
knowledge or based on statements within the records of the company. Some
of the statements made in his witness statement can be from his own
knowledge from the time he was employed while other evidence can be from
the records. He is not required to have been an employee at the material
time.
5. This witness can also give a supplemental witness statement or amplify
his oral evidence in chief to indicate how he comes to give the evidence. He
can be cross-examined on how he has come to know of the evidence. The
court cannot presume he cannot give the evidence because he does not say if
it is from his personal knowledge or if it is obtained from an examination of
the records of the company or both. Of course, it would be better to ensure
clarity that witnesses specify these matters in their witness statements. This
will place the evidence in its proper context without the court having to wait
on cross-examination to discover the true source of the evidence and to be
able to ascribe the requisite weight to it.
6. Further, since a company acts through it directors, officers and
employees the evidence of the company’s representative must necessarily to
an extent be considered in different terms from an ordinary witness who
gives evidence of things seen, heard or done.” [Emphasis added]
[41] Therefore, I am of the view that Roman Aquing could have deposed to matters
within his personal knowledge during the time he was employed with the first defendant, as well
as he could have deposed to evidence from the records of the first defendant to which, as
Manager of the first defendant, he would most likely have had access. I have considered that
each of the statements made by Roman Aquing, which were objected to, consisted of information
which Roman Aquing had the capacity to depose to as a former Manager of the first defendant.
Thus, I do not agree that the afore-stated statements specified in relation to the affidavit of
Roman Aquing should be struck out. The truth of these statements and the reliability of his
66
CV 2011-03467 Ruling on Evidential Objections dated 17 June 2013 per Boodoosingh J.
Page 16 of 27
knowledge are different matters which can be tested under cross-examination, if the case reaches
that stage.
[42] As regards the affidavit of the second defendant, the claimant also raised evidential
objections to the following statements on the basis that it was not within the personal knowledge
of the deponent and no source of the information was stated:
(i) Para. 8 – “….Michael Charles generally spent most of each year outside of Trinidad. In
fact, while in Trinidad, Michael Charles lived in his own house at Anderson Terrace,
Maraval and Ms. Forbes lived at No.5 Middle Street, St. James.” Objections were also
raised to lines 12 to 15, “While there [in Florida] he also had an apartment near to the
hospital where he would stay with his ex-wife Jennifer Charles when he was not at the
hospital. When he was in the hospital she would stay at that apartment. He would also
stay by his daughter Michelle in Coconut Grove, Miami and Jennifer Charles would stay
there while he was there. When his daughter moved residence, he acquired the apartment
referred to herein.” Moreover, further objections were made to lines 19 and 20 – “Had
there been any existing common law relationship, I would have known. I would have seen
evidence of co-habitation when I visited Michael Charles and he would have told me”- as
this is evidence within the contemplation of another person who is now deceased and was
clearly based on conjecture.
(ii) Para. 19 – “Michael Charles wanted to remain a silent partner as he did not want the
other betting offices to know his involvement in the venture.”
(iii)Para. 28 – “During this period Ms. Forbes was a director of Micjay Ltd. and would have
access and control of this account.”
(iv) Para. 29 – the phrase “…and considered that she would have access to such money from
the aforesaid Micjay account in any event”.
[43] I am of the view that with respect to the statements objected to in paragraph 8 as
specified, the deponent has satisfied the court in his affidavit that information regarding the
relationship, whereabouts and living arrangement of Michael Charles may have been within his
personal knowledge. This is so as the deponent also deposed at paragraph 8 that he had a close
and long standing relationship with Michael Charles and stated that he visited Michael Charles
many times in the United States where, according to the deponent, Michael Charles spent most
of his year. Therefore, I can find no grounds for striking out those statements at paragraph 8
Page 17 of 27
where the deponent deposes of his personal knowledge of the living arrangements and
relationship whereabouts of Michael Charles.
[44] However, I agree with the claimant that the statement at the end of sentence 20 of
paragraph 8 which states “and he would have told me”, ought to be struck out as it is indeed
evidence which is within the contemplation of another person, namely, Michael Charles. Despite
the relationship of the deponent with Michael Charles, I am not convinced from the context of
the affidavit that the deponent shared the type of relationship with Michael Charles, in which it
could be assumed that he could accurately depose what information Michael Charles is likely to
have shared with him.
[45] I also agree with counsel for the claimant, that the statements specified at
paragraphs 19, 28 and 29, as specified above, do not constitute information which is likely to
have been in the personal knowledge of the deponent and therefore those statements are to be
struck out from the affidavit. The following statements are therefore to be struck out of the
affidavit of the second defendant:
(i) Para. 19 – “Michael Charles wanted to remain a silent partner as he did not want the
other betting offices to know his involvement in the venture.”
(ii) Para. 28 – “During this period Ms. Forbes was a director of Micjay Ltd. and would have
access and control of this account.”
(iii)Para. 29 – the phrase “…and considered that she would have access to such money from
the aforesaid Micjay account in any event”.
[46] The claimant also raised evidential objections on the basis that the defendant sought
to give his opinion on matters of law, which he was not competent to do. The statements in issue
are:
(i) Para. 8 – “Further she was not the common law wife of Michael Charles. Michael
Charles never cohabited with Ms. Forbes as required to establish a common-law
relationship or lived together with her for that matter”;
(ii) Para. 16 - “He had other Betting offices in Queen Street, Port of Spain, Chaguanas
and San Fernando. While he was the owner of these other Betting Offices, he did not
actually operate them as he hired experienced people to so do and he would basically
collect a share of the profits of same” - as second defendant is giving his opinion of
what amounts to ownership of betting office; and
Page 18 of 27
(iii) Para. 30 – “I am advised by my attorneys-at-law and verily believe that even though a
partnership dissolves upon death of a partner that does not preclude the continuation
of the business previously conducted by the partnership” - as second defendant
purported to testify on a legal issue that is the effect of death of a partner on a
partnership and he is not competent to do so.
[47] I am of the view, that the only one of these statements, in which it appears that the
deponent sought to make a conclusion on the law, and which is to be struck out, is that part of the
statement at paragraph 8 that I have underlined, which states “as required to establish a common
law relationship”.
[48] The claimant also raised objections in respect to the inclusion of certain exhibits to
the affidavit of the second defendant. The first of the exhibits objected to were the financial
statements exhibited as “JCD8” and referred to at paragraph 25. The reason for the objection
was that the exhibit constituted hearsay evidence prepared by a person who, or entity that, is not
before the court, without there being any authentication of the purported statements. Similar
objection has also been taken to the inclusion of the schedule exhibited as “JCD9” and referred
to at paragraph 27, which the claimant has further stated was prepared using documents which
are not before the court and which the deponent has not produced. I agree with counsel for the
claimant that these exhibits are to be struck out. In any event, little assistance is gained by the
court from review of these exhibits. Particularly as they relate to the manual record of the linx
transactions as well as the statement which the deponent stated was prepared by his accountant.
There is no details as to the person who, or institution which, prepared those documents. The
exhibits bear no name, stamp, mark or signature of the maker so as to enable the court to
properly identify their source. Moreover, as regards the numerous merchant statements that have
been exhibited, the nature and purpose of the transactions are not identifiable from a review of
the statements. Little to no assistance is therefore derived from exhibits “JCD8” and “JCD9”
and I agree with counsel for the claimant that the documents should be struck out.
[49] The claimant further objected to exhibit “JCD10” which is referred to in paragraph
27 of the second defendant’s affidavit. The ground for the objection was that the deponent failed
to identify whether any of the purported cheques contained any evidence of expenditure on the
property in question as no particulars are provided to relate the purported cheques to his claim.
Page 19 of 27
Therefore, the claimant contended that these cheques were irrelevant to the proceedings. The
grave difficulty experienced by the claimant in relating these cheques to the instant claim for
possession, was similarly experienced by the court. The cheques simply state to whom they were
made payable and the amounts that were made payable. The court is at a lost in determining to
what event in the claim the cheques are relevant simply by looking at the cheques without more.
However, the deponent has deposed that the cheques represent his contribution to the set up of
the first defendant and the activities associated with same. I am of the view that the cheques are
therefore to be viewed in light of the deponent’s statements at paragraph 27 of his affidavit.
Although the particularising of the cheques would have greatly assisted the court in determining
their relevance to the claim, in my opinion, satisfactory information has been given in these
proceedings so as to save exhibit “JCD10” from being struck out. In a review of the evidence, it
would be a question of what weight should be attributed to the evidence exhibited at “JCD10”.
[50] Finally, the claimant objected to the statement made at paragraph 28 as follows:
(i) Para. 28 – “We had an arrangement that rent could be paid in the amount of
$20,000.00 per month in 2014. That was left at my discretion.”
The objection was premised on the fact that the deponent failed to particularise with whom he
had the alleged arrangement and therefore the sentence had no value, especially so, as the
agreement was not with the owner of the building, the claimant herein. I disagree with this
objection. It is clear from the context in which the statement was deposed, that the deponent was
referring to Michael Charles in his capacity as owner of the claimant which owned the property
in dispute.
[51] The above represents my decision on those statements deposed to in the two
affidavits, filed by the defendant, which are to be struck out. I now turn to the second issue
which arose for decision.
B. Whether judgment ought to be given in favour of the claimant, at this stage in the
proceedings, on the ground that the defendants have not satisfied the court that they
have a defence to the claim which has a realistic prospect of succeeding.
Page 20 of 27
(i) Submissions
[52] The defendants’ affidavits before the court originally appeared to raise the defence
of a tenancy arrangement to which the claimant’s right to possession was subject. However, in
the further written submissions of counsel for the defendants it was submitted that the following
defences were disclosed in the affidavits filed by the defence:
a. the existence of a constructive trust in the defendant’s favour;
b. the existence of a resulting trust in the defendant’s favour; and
c. proprietary estoppel.
[53] In response to the defences put by the defendants, counsel for the claimant
contended that the defendants do not have a defence to this claim which has a realistic prospect
of success, and therefore, the court must give final judgment in favour of the claimant pursuant
to Part 68.7(1) of the CPR. According to counsel for the claimant, it was originally thought
from the reading of the affidavits filed by the defendants that the defendants were alleging that a
tenancy existed, but the defendants had not proffered any evidence that pointed to the existence
of a tenancy arrangement between the claimant and the defendants.
[54] Counsel for the claimant further contended that the defence pertaining to a tenancy
arrangement which had originally been suggested in the defendants’ affidavits was completely
inconsistent with the new defences put in the defendants’ submissions which all concerned the
holding of an equitable interest. It is the claimant’s contention that there is no evidence to
support the existence of a constructive trust, resulting trust or proprietary estoppel and firmly
contends that those defences have been completely misconceived by the defence. Counsel for the
claimant noted that in any event, the defendants could not rely on equitable defences as they had
not come to equity with clean hands. To this end, counsel for the claimant submitted that the
second defendant had deposed to originally operating the first defendant as a partnership which
was illegal and inconsistent with regulation 14(c) of the Gambling and Betting (Licences)
Regulations made pursuant to the Gambling and Betting Act7.
7 Chap. 11:19.
Page 21 of 27
(ii) Law and Application
[55] In determining whether the defendants have a defence which has a realistic prospect
of success I have considered the established principles outlined in the Court of Appeal decision
of Western Union Credit Union Co-operative Society Ltd v. Ammon8:
“(i) The court must consider whether the defendant has a ‘realistic’ as
opposed to a ‘fanciful’ prospect of success: Swain v Hillman [2001] 2
All E.R. 91;
(ii) A ‘realistic’ defence is one that carries some degree of conviction. This
means a defence that is more than merely arguable: ED & F Man
Liquid Products v Patel [2003] E.W.C.A. Civ 472 at [8];
(iii)In reaching its conclusion the court must not conduct a ‘mini-trial’:
Swain v Hillman;
(iv) This does not mean that the court must take at face value and without
analysis everything that a defendant says in his statements before the
court. In some cases it may be clear that there is no real substance in
factual assertions made, particularly if contradicted by
contemporaneous documents: ED & F Man Liquid products v Patel at
[10];
(v) However, in reaching its conclusions the court must take into account
not only the evidence actually placed before it on the application for
summary judgment, but also the evidence that can reasonably be
expected to be available at trial: Royal Brompton Hospital NHS Trust
v Hammond (No.5) [2001] E.W.C.A Civ 550;
(vi) Although a case may turn out at trial not to be really complicated, it
does not follow that it should be decided without the fuller investigation
into the facts at trial than is possible or permissible on summary
judgment. Thus the court should hesitate about making a final decision
without trial, even where there is no obvious conflict of fact at the time
of the application, where reasonable grounds exist for believing that a
fuller investigation into the facts of the case would add to or alter the
evidence available to a trial judge and so affect the outcome of the
case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical
Co 100 ltd [2007] F.S.R. 63.”
[56] On an application of these principles, I cannot find that the defendants have any
defence which has a realistic prospect of success in this claim for recovery of possession of land.
The four defences proffered were:
(a) that a tenancy agreement existed;
(b) the existence of a resulting trust in favour of the defendants;
(c) the existence of a constructive trust in favour of the defendants; and/or
(d) proprietary estoppel.
8 Civ. App. No.103 of 2006 [3] per the judgment of Kangaloo JA
Page 22 of 27
(a) Tenancy agreement
[57] Although the existence of a tenancy agreement appeared to be the original defence
derived from the affidavits filed on behalf of the defendants, they appeared to have whole-
heartedly abandoned this defence in their written submissions as no mention was made of it. In
any event, for completeness, I nonetheless considered the prospects of that defence succeeding in
this claim.
[58] To prove the existence of a tenancy agreement, the defendants, at the very
minimum, would have to establish the terms of the agreement made between themselves and the
claimant, that is, to pay a specified sum of rent as consideration to remain in the property in
dispute for a specified lease period. The defendants have, however, fallen short of proving that
any rent or lease period was agreed or even implied by conduct. The second defendant merely
deposed to there being an arrangement that he could start paying rent in the year 2014 in a sum
of $20,000. He went on to depose that the payment of that rent was at his discretion and that he
therefore never paid it. Moreover, he suggested that there was no agreement for the payment of
the rent when he further alleged that Ms. Forbes discussed the “variation” of rent with him (a
discussion which Ms. Forbes strongly denied in her affidavit in reply on the basis that the
payment of rent was never considered nor discussed).
[59] The second defendant also deposed that although he had not paid the $20,000.00
rent, during the period 5 February 2014 to 16 May 2014 monies were still paid into the account
of Micjay Ltd via a linx machine to which he had no access. Such monies totalled $141,640.00.
On this basis, the second defendant emphasised that during that period Ms. Forbes was a director
of Micjay Ltd and would thus have had access and control of that account. Therefore, the second
defendant said that he considered that money to be the rent for the building. However, no
evidence was given as to whether Ms. Forbes indeed had access to that said account and whether
she was aware of the “rent arrangement”.
[60] Certainly, the evidence put forward by the defendants is insufficient for a court to
find that there was an agreed rent arrangement in place between the two parties to this claim.
Inevitably it would be further impossible for the court to deduce the period of the alleged
existing lease from the evidence. It is thus of no surprise that the defendants appeared to have
Page 23 of 27
abandoned this defence to the claim, as it is not likely to realistically succeed as a defence to the
instant claim.
(b) Resulting trust
[61] Regarding the defence of a resulting trust in favour of the defendants, from the
outset, this defence is to be considered against the backdrop that the defendants admitted that the
claimant was indeed the legal owner of the property in dispute and also admitted that the
property in dispute was purchased solely by the claimant. The admission of these two facts, in
itself, deprived the defendants of then claiming the defence of a resulting trust in their favour.
[62] The defendant submitted the case of Marlon Henry v Joel Sussman and ors9 for
the principle in respect of resulting trust which was repeated by Madame Justice Dean- Armorer,
as follows:
“...Lord Browne-Wilkinson defined the boundaries of the resulting trust. In his
judgment referred to supra, Lord Browne-Wilkinson limited the incidence of the
resulting trust to only two situations: where A makes a voluntary payment to B, the law
presumes that A did not intend to make a gift and will hold that B should hold the
voluntary payment on trust for A. The second situation occurs where there has been an
attempt to create an express trust but the trust declared fails to exhaust the whole of the
beneficial interest as had transpired in re Vandervell.” [Emphasis added]
[63] On the basis of the principle as quoted, the defendants contended that they fell
within the first situation envisaged as the defendants had voluntarily invested a substantial sum
of money in the claimant’s asset, being the construction and outfitting of the commercial
building, which stands upon the property in dispute. According to the defendants, the intended
sums invested were never intended as a gift.
[64] I am of the view that applying the same principle quoted, the proper question in the
instant matter is: whether the defendants made any voluntary payment with respect to the
purchase of the property in dispute as opposed to its outfitting and construction? No issue
arises in answering that question, in light of the fact that the defendants themselves have
admitted by way of the affidavit evidence of the second defendant that the purchase of the
property was financed solely by Michael Charles and then placed in the name of the claimant.
9 CV 2006/2919
Page 24 of 27
This admission was made at paragraph 17 of the affidavit of the second defendant, where he
deposed:
“17......Accordingly, No 84 Western Main Road was purchased by the
claimant as set out in the deed. The funding for this purchase was
provided by Michael Charles.”
[65] Therefore, I am of the view that the defence of a resulting trust, in favour of the
defendants, does not have a realistic chance of succeeding as a defence to the instant claim.
(c) Constructive Trust
[66] In Snell’s Equity10
the type of constructive trust contended in the instant
proceedings is concisely described as follows:
“A constructive trust may be imposed over the property acquired by one
person, A, that he had previously agreed with another person, B, he would
only acquire for the benefit of both himself and B. The trust arises under
what is called the equity in Pallant v Morgan [1953] Ch.43. A holds the
property on trust for himself and B to prevent A from benefitting
unconscionably from the breach of the agreement with B....... A Pallant v
Morgan equity typically relates to specific property that is not owned by
either parties, A or B. A and B then reach an agreement or understanding
in respect of the property. They agree that A will take steps to acquire the
relevant property; and that, if A does so, the other party, B, will buy the
property subdivide it and convey part of it to B, or that it will be acquired
by a corporate vehicle, the shares in which will be divided between A and
B. The agreement need not be enforceable as a contract, so the equity can
arise where the agreement is unwritten, and even where it is not intended
to have contractual effect. The terms of the agreement can be uncertain to
a degree. But the agreement must be express and cannot simply be
inferred from the parties’ conduct.”
[67] In Lloyd Bank Plc v Rosset and Ors11
guidance was given in respect of the type of
evidence that would be required to prove the existence of an express agreement for the purpose
of constructive trusts, as follows:
“The first and fundamental question which must always be resolved is
whether, independently of any inference to be drawn from the conduct of
the parties in the course of sharing the house as their home and managing
10
33rd
Edn. by John McGhee QC
11 [1991] 1 AC 107 at 132
Page 25 of 27
their joint affairs, there has at any time prior to acquisition, or
exceptionally at some later date, been any agreement, arrangement or
understanding reached between them that the property is to be shared
beneficially. The finding of an agreement or arrangement to share in this
sense can only, I think, be based on evidence of express discussions
between the partners, however imperfectly remembered and however
imprecise their terms may have been. Once a finding to this effect is made
it will only be necessary for the partner asserting a claim to a beneficial
interest against the partner entitled to the legal estate to show that he or
she has acted to his or her detriment or significantly altered his or her
position in reliance on the agreement in order to give rise to a constructive
trust or a proprietary estoppel.” [Emphasis added]
[68] Thus, to establish a constructive trust in their favour, the defendants would be
required to point to an agreement by the claimant that the defendant or either of them would
receive a beneficial share in the property in dispute in these proceedings: Henry v Sussman12
. In
the evidence, the second defendant refers to the arrangement he had with the claimant in respect
to the operation of the business of the first defendant as a partnership. The second defendant sets
out in some detail the manner in which he contributed to the development of the business of the
first defendant on the property in dispute. However, no mention is made in respect of any
arrangement to receive a beneficial share in the property in dispute.
[69] The majority of the evidence in respect of the second defendant’s contributions is
concerned with his investment in the development of the business of the first defendant as
opposed to proving that any expressed agreement was made between Michael Charles and either
or both of the defendants that they would receive a beneficial interest in the property in dispute.
Thus, I am not satisfied that the court would be able to hold that there was an arrangement or
understanding in the nature of a partnership between these two parties whereby Michael Charles
would acquire the property in question and then the defendants would obtain an interest in the
property in dispute.
[70] My findings in this regard are further solidified by the fact that based on the
evidence deposed to by the defendants the second defendant would have indeed gained a licence
to operate the first defendant as a betting office in circumstances in which he knew the first
defendant to be a partnership. Such conduct of the second defendant would have been illegal in
12
Henry (fn 9).
Page 26 of 27
light of regulation 14(c) of the Gambling and Betting (Licences) Regulations made pursuant
to the Gambling and Betting Act which provides that -
“The authority shall refuse any application for the grant of a certificate
authorising the issue of a permit to carry on such business as is mentioned
in section 28(1)(a) or (b) of the Act if it appears that the applicant –
(a) is under twenty-one years of age;
(b) is for the time being disqualified; or
(c) is a company registered under the Companies Act, a partnership or
other association or body of persons corporate or incorporate;....”
[Emphasis added]
[71] Therefore, the defence of a constructive trust (like resulting trust and proprietary
estoppel) being an equitable remedy, the court will not assist the defendants who have come with
‘unclean hands’ in obtaining any benefit consequent to such equitable defence.
(d) Proprietary estoppel
[72] Counsel for the defendants, in this court’s opinion, correctly stated in their written
submissions, the elements which must be established in order to rely on the defence of
proprietary estoppel. Counsel cited the authority of Thorner v Major [2009] UKHL 18 wherein
Lord Walker highlighted the three main elements of the doctrine of proprietary estoppel thus:
(i) a representation or assurance made to the claimant;
(ii) reliance on it by the claimant; and
(iii)detriment to the claimant in consequence of his (reasonable) reliance.
[73] I agree with counsel for the claimant that there is no evidence from the second
defendant’s affidavit on which this court can deduce any representation or assurance made by the
claimant to the second defendant in relation to ownership or right to possession of the property in
dispute. Effectively, therefore, the defence of proprietary estoppel must fail as I am not satisfied
that there is any evidence of a promise made by the claimant to the second defendant that was
relied on by the defendants to their detriment.
V. Disposition
[74] The defendants have failed to establish a defence which has a realistic prospect
of successfully defending the claim. In light of my findings and in accordance with Part
68.7(1) of the CPR, judgment be and is hereby entered for the claimant against the
Page 27 of 27
defendants for possession of the property in dispute in terms of relief (i) of the fixed date
claim filed on the 11 August 2014.
[75] The defendants shall pay to the claimant costs of the claim.
[76] Costs are to be quantified as follows:
(i) On the disposition of the claim at the first hearing – 55% of prescribed
costs of this claim which is to be classified as a claim for $50,000. This
amounts to 55% of $14,000 = $7,700;
(ii) On the disposition of the evidential objections and the application for
final judgment pursuant to Part 68.7(1) CPR, costs are to be assessed in
accordance with Part 67.11 CPR which have been quantified in the sum
of $25,000.
[77] There shall be a stay of execution for 14 days from the date of this order.
Dated this 11th
day of February, 2015
__________________
Robin N Mohammed
Judge