republic of trinidad and tobago in the high court...

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

______________________________________________________________________________

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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.

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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.

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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

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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

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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.

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[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.

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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

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(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.

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[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 –

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(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.

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(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

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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

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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.”

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[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.

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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

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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

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(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.

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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.

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(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.

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(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

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(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

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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

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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

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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).

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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

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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

republic of trinidad and tobago in the high court...

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