THE REPUBLIC OF TRINIDAD AND TOBAGO SHARIAT IAN...
Transcript of THE REPUBLIC OF TRINIDAD AND TOBAGO SHARIAT IAN...
THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
CV 2013-03930
Between
SHARIAT IAN MOHAMMED
Claimant/Applicant
And
INISH HARRILAL
1ST
Defendant
LISA HARRILAL
2nd
Defendant
RADHAY MAHABIR
3rd
Defendant
AMRISH RAJIV MAHABIR
4th
Defendant
VENO HARRILAL also called VENO KHANI
5th
Defendant
JAGARNATH HARRILAL
6th
Defendant
Before the Honourable Mr. Justice R. Rahim
Appearances:
Mr. O. Ramischand for the Claimant
Mr. S. Sharma for the First and Second Defendants
Mr. R. Rajcoomar instructed by Mr. I. Ali for the Third, Fourth, Fifth and Sixth Defendants.
Page 2 of 13
Decision on Application
1. By Notice of Application filed on 25th
March 2014, the 3rd
, 4th
, 5th
and 6th
Defendants applied
to the Court for an order that the Claimant’s Claim filed on the 4th
October, 2013 be struck
out as being an abuse of process pursuant to Rule 26.2 (1) (b) Civil Proceedings Rules 1998,
that judgment be given in favour of the 3rd
, 4th
, 5th
and 6th
Defendants pursuant to Rule 15.2
on the ground that the Claimant has no reasonable prospect of success of the claim; and that
the Claimant pay the costs of this application and of the Claim.
2. At a CMC held on the 8th
July, 2014, the court ordered that submissions in writing be filed
and exchanged by the Claimant and the Third, Fourth, Fifth and Sixth Defendants by 15th
September, 2014. The Claimant and the Defendants have both complied with this order.
Background
3. By Claim Form and Statement of Case filed on the 4th
October, 2014, the Claimant claimed
inter alia, a declaration that from and after the 20th
June, 2009 the Claimant became the
beneficial owner of a One-Third share and interest in the fee simple estate of land situate in
Cunupia, comprising two acres (the disputed land) by virtue of an unregistered Memorandum
of Transfer dated 20th June, 2009 duly executed by the First Defendant, as one of the
Registered Proprietors. The Claimant also sought an order for possession of the disputed land
from the Defendants.
4. The Claimant claimed that on the 8th
day, June, 2009 he entered into an agreement for sale
with the First and Second Defendants to purchase the disputed land for the sum of One
Hundred and Twenty Thousand Dollars ($120,000.00). In pursuance of the agreement the
Claimant alleges that he paid monies including an overpayment of Three Thousand Dollars
($3,000.00) to the First Defendant.
5. The Claimant alleges that a Memorandum of Transfer was executed on 20th
June, 2009 by
the First Defendant, however, the First Defendant promised to supply the Certificate of Title
Page 3 of 13
to Attorney at law for the Claimant but he never did. The Claimant alleges that sometime in
June 2009 he took possession of the land and began minor construction thereon. During the
time that the Claimant took possession there were various hostile events on the land between
the Claimant and the Defendants.
6. The First Defendant subsequently transferred the disputed land to the 3rd
and 4th
Defendants
for alleged valuable consideration. By Civil action CV 2012/00889 (previous proceedings),
the Third, Fifth and Sixth Defendants sued the Claimant for possession alleging that they
were entitled to possession as owners as the registered owners. The previous proceedings
came before this court and the Claimant was represented by Mr. Samuel Saunders. During
the case management phase an application for summary judgment was made and a consent
order was entered into in that regard.
7. The Claimant now claims that in the first action he had specifically instructed Mr. Saunders
on the issue of fraud (conspiracy to deprive the Claimant of the land by the transfer to the
Defendants for alleged consideration), but Mr. Saunders did not plead fraud in the Defence
and Counterclaim. Also that on the day of the consent order, he was informed by Mr.
Saunders that he must consent to judgment for the Claimants in that matter and he was
confused but consented. This present action is now an attempt by the Claimant to set aside
that consent order.
Whether the proceedings should be stuck out on the basis of res judicata, issue estoppel
and abuse of process.
8. The Claimant has relied on the authority of Kelvin Field and another v Probhadai
Bissessar and another1. In that case the Claimants were pursuing relief with respect to three
different causes of action. The First Claimant claimed as landlord of the First Defendant in
respect of a parcel of land ("the first parcel of land") and the Second Claimant brought action
as the occupier of another parcel of land which adjoined the first parcel of land ("the second
1 CV 2012-00772
Page 4 of 13
parcel of land"). The Claimants sought two declarations (i) that the First Defendant is the
tenant of the first parcel the size and the boundaries of which are temporary and cannot and
will not be fixed unless determined by the First Claimant and (ii) that the parcel of land is
bounded by a public road which is the only access to the said land.
9. The second cause of action concerned a consent order made between the Defendants in that
case in H.C.A.84/2001; the Claimants sought to have the consent order set aside and declared
null, void and unenforceable. The third cause of action was in trespass with the Claimants
seeking damages and mesne profits. Regarding the consent order the Court did not set it aside
as the Claimants were not parties to the consent order and there were no particulars of fraud
on the part of the First Defendant with respect to obtaining the order. In considering the issue
of abuse of the process Jones J considered the Privy Council decision of Nana Ofori Atta II
Omanhene of Akyem Abuakwa and Another v Nana Abu Bonsra II as Adansehene and
as representing the Stool of Adanse and Another [1957] 3 All ER 559 and at paragraphs
25 and 26 quoted the dicta of Lord Denning with approval as follows:
“25.In arriving at their decision, the Court applied what it considered to be an
exception to a general rule of law: “The general rule of law, undoubtedly, is that
no person is to be adversely affected by a judgment in an action to which he was
not a party because of the injustice of deciding an issue against him in his
absence; but this general rule admits of two exceptions. One exception is that a
person who is in privity with the parties, a “privy” as he is called, is bound
equally with the parties, in which case he is estopped by res judicata; the other is
that a person may have so acted as to preclude himself from challenging the
judgment, in which case he is estopped by his conduct.”: per Lord Denning at
page 561 paragraphs C and D.
26.Their Lordships recognised three types of conduct which would result in a
party being estopped from litigating that the issue all over again: (i) active
participation in the proceedings; and in this regard Lord Denning gives the
example of a tenant sued for trespass on his neighbour’s land and who defends
the suit on the strength of his landlord’s title and by the direction and authority of
Page 5 of 13
the landlord. According to Lord Denning, if the tenant loses the action the
landlord would not be allowed to re-litigate the title all over again by bringing an
action in his own name; (ii) taking an actual benefit from the judgment in the
previous proceedings and (iii), as was the case before them, of standing by and
watching the proceedings fought out or at most giving evidence in support of one
side or the other”.
10. The Claimant in the present case, claim that in CV 2012-00889, the first matter, the 1st, 2
nd
and 4th
Defendants were not parties to the action as such the conditions necessary for a
successful plea of issue estoppel does not arise in this case. In this regard the Claimant has
relied on the case of Rampersad v Cooblal CV2010-01850. In so doing they have set out the
dicta of Charles J at paragraph 33 wherein the learned judge stated that the conditions
necessary for a successful plea of issue estoppel are:
i. The same question was decided in both proceedings;
ii. the judicial decision said to create the estoppel was final and
iii. the parties to the judicial decision or their privies were the same
persons as to the proceedings in which the estoppels is raised or
their privies2.
11. The Defendant submitted that the Claimant’s claim ought to be struck out as the issues of fact
and law are identical to the issues of fact and law in the previous proceedings. The
Defendant averred that as the issues are identical these proceedings are barred by virtue of
res judicata and estoppel because these issues were already determined in the previous
proceedings. In this regard the Defendant relied on the locus classicus Henderson v
Henderson 3 the facts of which are not relevant for present purpose. At page 382 Justice
Wigram V-C stated:
2 Carl Zeiss Stiftung v Rayner and Keeleer Ltd (No. 3) [1970] Ch. 506
3 [1843-60] All ER Rep 378
Page 6 of 13
“ I believe I state the rule of the court correctly, when I say that where a given
matter becomes the subject of litigation in, and of adjudication by, a court of
competent jurisdiction, the court requires the parties to that litigation to bring
forward their whole case, and will not (except under special circumstances)
permit the same parties to open the same subject of litigation in respect of matters
which might have been brought forward as part of the subject in contest, but
which was not brought forward only because they have, from negligent,
inadvertence, or even accident, omitted part of their case. The plea of res judicata
applies, except in special-case, not only to points upon which the court was
actually required by the parties to form an opinion and pronounce a judgment,
but every point which properly belonged to the subject of litigation and which the
parties, exercising reasonable diligence, might have brought forward at the
time”.
12. The Defendants also relied on Halsbury’s Laws of England4 where the learned authors
opined that :
“the law discourages re-litigation of the same issues except by means of an
appeal. It is not in the interests of justice that there should be re-trial of a case
which has already been decided by another court………the rule in Henderson v
Henderson has been described as being essentially part of the court’s wider
jurisdiction for striking claims out as an abuse of process……the rule provides
that a claimant is barred from litigating a claim that has already been
adjudicated upon or which could and should have been brought before the court
in earlier proceedings arising out of the same facts……the scope of the rule has
been extended to claims where there has been a settlement rather than a judgment
or a consent order”.
4 5
th edition Volume 12, paragraphs 1166 and 1167
Page 7 of 13
13. The Defendants also contended that all the issues and matters that are now being raised in
these proceedings were available to the Claimant in the previous proceedings, further the 3rd
,
5th
and 6th
Defendants did nothing to conceal or fraudulently mislead the Claimant into
entering the consent order as such the Claimant determined the matter by consent due to the
pleaded facts and law.
14. The Defendants also relied on the Privy Council case of Yat Tung Investment Co. Ltd v
Dao Heng Bank Ltd5. In that case the appellant purchased property from the bank and
thereafter claimed that the sale of the property was a sham. The bank denied the sale was a
sham and was successful on their counterclaim and the appellant’s claim was dismissed. One
month after the Court gave judgment the appellant brought another action against the bank
claiming that the sale of the property to the second respondent was void or voidable as
fraudulent. The bank and the Second Respondent applied for an order that the claim be struck
out as an abuse of the process of the court. It was held that the allegation of fraud and the
voidability of the sale by the bank were available in the first action, therefore the claim was
struck out. At page 590 it was stated that:
“ the shutting out of a subject litigation-a power which no court should
exercise but after a scrupulous examination of all the circumstances is
limited to cases where reasonable diligence would have caused a matter
to be earlier raised; moreover, although negligence, inadvertence or even
accident will not suffice to excuse, nevertheless special circumstances are
reserved in case justice should be found to require the non-application of
the rule”.
5 [1975] AC 581, see also Manson v Vooght [1999] BPIR 376; Johnson v Gore Wood & Co (a firm) [2001] 1 All ER 481, HL. It is
otherwise if the second claim is brought against a person whom the claimant could but did not join in the earlier claim (Gleeson v J Wippell & Co Ltd [1977] 3 All ER 54), and the second claim will not be stayed if the claimant relies on a different contract with different terms (Hardy v Elphick [1973] 2 All ER 914, CA). See also Sweetman v Shepherd [2000] All ER (D) 391 and Harris v Society of Lloyd's, Adams v Society of Lloyd's [2008] All ER (D) 04 (Jul) (abuse of process to bring fraud action based on the same cause of action and the same documents as previous action).
Page 8 of 13
In the Yat Tung case the Privy Council also considered the case of Greehalgh v
Mallard6, in particular the dicta of Somervell L.J :
“….res judicata for this purpose is not confined to the issues which the
court is actually asked to decide, but……it covers issues or facts which
are so clearly part of the subject matter of the litigation and so clearly
could have been raised that it would be an abuse of the process of the
court to allow a new proceeding to be started in respect of them”.
15. The rule was further explained by the court of appeal in Barrow v Bankside Agency
Ltd [1996] 1 All ER 981by Sir Thomas Bingham, Master of the Rolls at page 983 letter g as
follows:
"The rule in Henderson v Henderson....... is very well known. It requires the parties, when
a matter becomes the subject of litigation between them in a court of competent
jurisdiction, to bring their whole case before the court so that all aspects of it may be
finally decided (subject, of course, to any appeal) once and for all. In the absence of
special circumstances, the parties cannot return to the court to advance arguments,
claims or defences which they could have put forward for decision on the first occasion
but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense,
nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public
policy based on the desirability, in the general interest as well as that of the parties
themselves, that litigation should not drag on for ever and that a defendant should not be
oppressed by successive suits when one would do. That is the abuse at which the rule is
directed."
16. In this regard the Defendants submit that the Claimants admit that when the previous
proceedings went to trial there was evidence of fraud, however, this was not pleaded in the
Defence or Counterclaim as a result of inadvertence and negligence by his attorney. The
6 [1947] 2 All E.R. 255. 257
Page 9 of 13
Defendant submits that the case of Yat Tung case makes it clear that this would not suffice
to excuse the Claimant from bringing forward the same issues.
17. The Defendants also argue that the doctrine of res judicata is applicable to matters
determined by consent orders. In support of this proposition they relied on the authority of
South American and Mexican Company ex parte Bank of England7 in which Lord
Herschell LC stated at page 50:
“The truth is, a judgment by consent is intended to put a stop to litigation
between the parties just as much as is a judgment which results from the
decision of the Court after the matter has been fought out to the end. And I
think it would be very mischievous if one were not to give a fair and
reasonable interpretation to such judgments, and were to allow questions
that were really involved in the action to be fought over again in a
subsequent action”.
Res Judicata and Issue Estoppel
18. In the previous proceedings the Claimants (the Third Defendant, The Fifth Defendant and the
Sixth Defendant) filed a fixed date claim form on the 5th
March, 2012 claiming that they are
entitled to possession of the subject parcel of land, as the registered owners.
19. The Defence was filed on May 18th
, 2012. The Defendant (the Claimant in the present action)
claimed that he was the owner of an undivided one third share of the of the parcel of land
(which is the disputed land) whilst the Claimants were the owners in respect of an undivided
two thirds share of the parcel of land. In this defence the particulars of fraud as outlined by
the Claimant in this present action were not included. This is so although the facts which he
is purporting amounted to fraud were within his knowledge at that time. In this present action
the Claimant is also claiming that instructions in relation to fraud were given to his then
7 [1895] 1 Ch 37
Page 10 of 13
attorney, however, the attorney failed, refused, omitted and or neglected to plead and or state
same in the defence of the previous proceedings.
20. The authorities on res judicata are clear, the requirement is that parties to litigation must
bring forward their whole case and the court will not unless there are special circumstances
allow parties to re-litigate issues which were not brought forward as a result of negligence,
inadvertence or even accident, omitted part of their case.
21. In relation to the Claimant’s allegation that the issue of fraud was one that was available in
the previous proceedings and yet was not pursued despite his instructions to counsel, the
matter for the court to determine is whether this allegation amounts to special circumstances.
In the court’s view these circumstances do not amount to special circumstances. The
Claimants would have had to peruse the Defence and sign same as being accurate. The same
would have applied to the Counterclaim. It would have been obvious to the Claimant at that
point that nothing as relates to fraud was pleaded or set out and there is nothing on the
evidence which prevented him from dispensing with the services of Mr. Saunders at that
point (assuming that the allegations made against Mr. Saunders are true) and seeking an
adjournment for the purpose of obtaining new counsel. The Claimant would have also had
ample time and opportunity to make an application to amend the Defence and Counterclaim
and could have in fact amended prior to the first Case Management Conference without
permission and in any event with permission thereafter. The court is therefore left to query
the bona fides of the assertion of the Claimant that he gave instructions to Mr. Saunders in
relation to fraud and Mr. Saunders refused to abide by his instructions. These are all matters
which the court must consider in the context of this case.
22. Additionally, when one peruses the Defence filed in the first claim along with the Statement
of Case in the present case, it is clear that the matters pleaded are in material particular, the
same. The difference lies with the addition of a pleading at paragraph 19 of the Statement of
Case which sets out the particulars of fraud in this case being a conspiracy to deprive the
Claimant of the benefit of the purchase by the withholding of the Certificate of Title. There
Page 11 of 13
are no new documents to be relied on. The documents from which the Claimant alleges that
an inference can be drawn in relation to fraud and according to him, those which show direct
evidence of fraud are the documents which surround the registration of the Memorandum of
Transfer to these Defendants which were known and available to the Claimant in the first
case in any event. So that the claim for fraud ought to have been part of the first case if the
Claimant had genuinely thought that he had such a claim.
23. Further, it matters not, in the court’s view, that in this case, the first, second and fourth
Defendants were not parties. The Fourth Defendant although he was not a party to the
previous proceeding, was the registered co-owner of the disputed land along with the Third
Defendant. Also the First and Second Defendants are the previous owners of the land and
although they were not parties to the previous action, they are privies to the Claimants in the
previous action. Further, the court agrees with the submission of the Defendants that the
doctrine of res judicata is applicable to matters determined by consent orders as the law
appears to be clear on the issue. See paragraph 17.
The Abuse
24. In Johnson v Gore Wood & Co.(supra), Their Lordships of the House of Lords found that
there was a public interest in the finality of litigation and in a Defendant not being vexed
twice in the same matter; but that whether an action was an abuse of process as offending
against the public interest should be judged broadly on the merits taking account of all public
and private interests involved and all the facts of the case, the crucial question being whether
the Plaintiff was, in all the circumstances, misusing or abusing the process of the court"
Lord Bingham of Cornhill explained Henderson in these terms at page 498 letter j to 499 letter d:
"But Henderson v Henderson abuse of process, as now understood, although separate
and distinct from cause of action estoppel and issue estoppel, has much in common with
them. The underlying public interest is the same: that there should be finality in litigation
and that a party should not be twice vexed in the same matter. This public interest is
Page 12 of 13
reinforced by the current emphasis on efficiency and economy in the conduct of litigation,
in the interests of the parties and the public as a whole. The bringing of a claim or the
raising of a defence in later proceedings may, without more, amount to abuse if the court
is satisfied (the onus being on the party alleging abuse) that the claim or defence should
have been raised in the earlier proceedings if it was to be raised at all. I would not
accept that it is necessary, before abuse may be found, to identify any additional element
such as a collateral attack on a previous decision or some dishonesty, but where those
elements are present the later proceedings will be much more obviously abusive, and
there will rarely be a finding of abuse unless the later proceeding involves what the court
regards as unjust harassment of a party. It is, however, wrong to hold that because a
matter could have been raised in earlier proceedings it should have been, so as to render
the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic
an approach to what should in my opinion be a broad, merits-based judgment which
takes account the public and private interests involved and also takes account of all the
facts of the case, focusing attention on the crucial question whether, in all the
circumstances, a party is misusing or abusing the process of the court by seeking to raise
before it the issue which could have been raised before."
25. Having adopted the broad based approach advocated in Johnson v Gore, the court is of the
view that it is abundantly clear that the Claimant is attempting to get a “second bite of the
cherry” after consenting to the Order dated 12th
November, 2012, and is clearly seeking to
raise an issue which could have properly been raised before and ought to have been, having
regard to the serious nature of such an allegation of fraud. It appears to the court having
regard to the evidence that it may well be the case that there may now be a realization on the
part of the Claimant that to allege fraud may be his only way to challenge the consent order
having regard to the heavy public interest in ensuring that those who commit fraud are not
permitted to benefit from it. But the difficulty which the Claimant faces is that nowhere in
the previous proceedings is the issue of fraud raised when clearly it could have been so easily
raised on the very pleadings and so it appears to be a last salvo created for the sole purpose of
this claim by the Claimant. It would therefore mean that the Claimant is attempting to abuse
or misuse the process of the court and so equally the court should not permit him so to do.
Page 13 of 13
26. In view of the court’s finding above it is has become unnecessary to adjudicate on the
application for summary judgment and other issues raised by the Claimant some of which are
substantive issues which would ordinarily be reserved for trial in any event.
27. For these reasons, the court shall strike out the claim as being an abuse of the process of the
court and order that the Claimant pay to the Defendants the prescribed costs of the Claim up
to but not including trial on the basis of the claim being treated as one for $50,000.00 in sum
of $10,500.00 to each Defendant. The Claimant shall also pay to the Third, Fourth, Fifth and
Sixth Defendants, the costs of the application to be assessed in default of agreement.
Dated 12th
day of November, 2014
Ricky Rahim
Judge