Ali v B.G. Trinidad Inc. et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Myers, J. |
| Judgment Date | 03 December 2006 |
| Neutral Citation | TT 2006 HC 116 |
| Docket Number | HCA No. S-434 of 1999 |
| Court | High Court (Trinidad and Tobago) |
| Date | 03 December 2006 |
High Court
Myers, J.
HCA No. S-434 of 1999
Mrs. J. Koorn instructed by Mr. C. Serrano for the plaintiff
Mr. S. Singh instructed by Lex Caribbean for the second defendant
Civil practice and procedure - Striking out — Statement of claim — Concurrent actions — decision reached in original action — Issues previously raised — Whether present proceedings were rendered res judicata — Issues were resolved by a final determination on the merits — Res judicata established — Statement of claim struck out.
Editorial Note: Footnotes for the judgment are at the end of judgment. In the text, the footnotes are enclosed in square brackets. Where the text was to be struck out, as demonstrated by a like through it, it has instead been placed in square brackets.
This is an action for damages for breach of contract and for inducing a breach of contract.
Ansar Ali, who is the plaintiff in these proceedings, resides within the jurisdiction. B.G. Trinidad Inc., the first defendant, and British Gas Plc, the second defendant, are foreign energy companies based in the United States and England respectively. Kenneth Julien, the third defendant, resides within the jurisdiction. The contract in respect of which Mr. Ali brings this action is governed by, and is to be construed in accordance with the laws of the Republic of Trinidad and Tobago. The breaches alleged of it, occurred with the jurisdiction.
On the 27th June, 2000, British Gas Plc applied for an order under Order 18, rule 19(1), RSC, 1975 and under the inherent jurisdiction of the Court, striking out the Writ of Summons and Statement of Claim filed on the 30th April, 1999 and the 26th April, 2000 respectively, because they:
- disclosed no reasonable cause of action against British Gas Plc; 2. were frivolous and/or vexatious; 3. might prejudice, embarrass or delay the fair trial of the action; and 4. were an abuse of process of the Court.
British Gas Plc also asked that Mr. Ali pay them the costs of the action, including the costs of and occasioned by their application to strike out.
For the sake of completeness, here is what Order 18, rule 19 (1), RSC, 1975 provides:
- (1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in the pleading or in the indorsement, on the ground that: (a) it discloses no reasonable cause of action or defence, as the case may be; or (b) it is scandalous, frivolous or vexatious; or (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the Court; and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.
The following day, the 28th June 2000, an affidavit was sworn to and filed on behalf of British Gas Plc, in which the deponent made four main points. First, that similar proceedings against the very defendants sued in these proceedings had already been instituted in an earlier action, H.C.A. No. S-171 of 1997 filed on the 21st February, 1997. Second, identical relief was being sought in the present proceedings. Third, the cause of action was statute barred. And, fourth, no leave had been granted to issue a Concurrent Writ of Summons for service out of the jurisdiction.
Below, I summarise the undisputed facts which gave rise to both this and the earlier action.
On the 24th September, 1992 Anasar Ali, then chairman of Petro-Chemicals Industries, entered into a two year contract with B.G. Trinidad Inc. (a corporation incorporated in the State of Delaware in the United States) and British Gas Plc (a company incorporated in the United Kingdom).
Some six months later, B.G. Trinidad Inc. terminated the contract by a letter dated 25th February, 1993. On 21st February, 1997 Mr. All commenced proceedings against the defendants for breach of that contract by Writ of Summons in H.C.A. No. 5-171. Shah, J. then granted Mr. Ali leave to issue Concurrent Writs and to serve notice of those Concurrent Writs out of the jurisdiction on B.G. Trinidad Inc. and British Gas Plc. However, Mr. Ali failed to serve the proceedings within the time for so doing, and applied by two affidavits for an order renewing and extending the Writs and Concurrent Writs. The Writs and Concurrent Writs were later extended for 12 months by Persad-Maharaj, J.'s ex parte order of 2nd March, 1998.
In response, British Gas Plc entered a conditional appearance and, on 11th March, 1999, filed an application seeking an order setting aside Persad-Maharaj, J.'s ex parte order and dismissing the action. Ventour, J. heard this application, and in a judgment dated 21st July, 1999, he dismissed the action against British Gas Plc on the ground that Mr. Maharaj had shown no good reason to justify Persad-Maharaj, J.'s order, which had extended the Writ and Concurrent Writ's validity. Ventour, J. also rejected Mr. Ali's submission that the claim was not statute barred.
On the 30th April, 1999, Mr. Ali filed this action seeking the identical relief as in the first action, save for the inclusion of the relief I set out below at (3):
- Damages for breach of contract made between B.G. Trinidad Inc., and him and dated 1st September, 1992, which contract was wrongfully terminated by B.G. Trinidad Inc. with effect from 31st March, 1993 as a result of a conspiracy between the defendants to cheat and/or defraud and/or injure him under the contract, and of which conspiracy, he became aware in or about April, 1995. 2. Damages for inducing breach of the contract between the B.G. Trinidad Inc. and him. 3. Damages for conspiracy to cheat and/or defraud and/or injure him from benefiting under the contract.
Mr. Ali then applied on the 19th April, 2000 for leave to issue and serve Concurrent Writs of Summons against B.G. Trinidad Inc. and British Gas Plc out of the jurisdiction. On 20th April, 2000, Kangaloo, J. granted him leave to do so. The Concurrent Writs were duly served, and appearances were entered and a Defence filed by British Gas Plc.
On 27th June, 2000, British Gas Plc filed the Summons in Chambers which is presently before me (the detail of which I have set out above) on the ground that the issues raised in these proceedings were previously raised in H.C.A. No. S-171 of 1997. And, in the former case, the defendants had challenged the validity of Mr. Ali's application to extend the Writ and Concurrent Writs on the grounds that there had been no sufficient reason advanced before Shah, J. to grant the order, and had succeeded in contending that the causes of action disclosed in the Writs and Concurrent Writs were statute barred. And, further, that Ventour, J. arrived at his decision in the original action having examined the issues which Mr. All now once more raises in these proceedings.
I must decide but one main issue–are the present proceedings rendered res judicata by the original proceedings?
Mr. Singh, who appeared for British Gas Plc, argued that these proceedings are res judicata and should be struck out. In support, he contended that there can be a final decision in an interlocutory matter, and Ventour, J.'s judgment should be regarded as such. He referred to Swift v. Charles Mc Enearney[1] where reference was made to New Brunswick Railway Company v. British & French Trust Corporation Limited[2] which, he maintained, demonstrates the position with regard to res judicata, in that it is much wider than previously envisaged. The relevant part is as follows: [3]
“It is seen from this citation of authority that if in any Court of competent jurisdiction a decision is reached, a party is estopped from questioning it in a new legal proceeding. But the principle also extends to any point whether of assumption or admission, which was in substance the ratio of and fundamental to the decision.”
In turn, Ms. Koorn for Mr. Ali made two submissions. First, that res judicata lies on fulfilling all six constituents identified by the learned authors of the leading practitioner's text [4] on the subject, and that no particular requirement can be singled out and said to have been established. Second, that for res judicata to apply, there must have been a trial to determine the matter. To support that contention, the Mrs. Koorn submitted that what was before Ventour, 5 J. was a question of procedure, not a question of merit, and therefore was an interlocutory, not a final application.
Having very briefly summarised the parties’ submissions, I now turn to my own analysis of the law.
Res judicata as defined by Spencer Bowers is:
“a decision pronounced by a judicial tribunal having jurisdiction over the cause and the parties which disposes once and for all of the matters decided, so that except on appeal, they cannot afterwards be re-litigated between the same parties or their privies.”
Once res judicata is raised at the proper time, several elements must be established by the party setting it up by way of estoppel as a bar to his opponent's claim. These are:
- the decision was judicial in the relevant sense; 2. it was in fact pronounced; 3. the tribunal had jurisdiction over the parties and the subject matter; 4. the decision was (a) final, and (b) on the merits; 5. it determined the same question as that raised in the later litigation; and 6. the parties to the later litigation were either parties to the earlier litigation or their privies, or the earlier decision was in rem.
While this area of law could well be described as grey, in my judgment, it is clear on the authorities that a defendant must show all these constituents exist to make out the defence...
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