Garibdass et Al v Sookhan et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Jairam, J |
| Judgment Date | 11 March 1997 |
| Neutral Citation | TT 1997 HC 57 |
| Docket Number | No. 2001 of 1992 |
| Court | High Court (Trinidad and Tobago) |
| Date | 11 March 1997 |
High Court
Jairam, J.
No. 2001 of 1992
Stanley Marcus and Mr. Mahendranath Dhaniram instructed by Messrs. Dipnarine Rampersad & Co. for plaintiffs
Mr. George Bompas, Q.C. (of the English Bar), Mr. Rolston Nelson, S.C. and Mrs. Deborah Peake instructed by Messrs. A.J. Bhajan & Co. for first and third defendants
Mr. Maharaj, S.C. and Mr. Stephen Maharaj instructed by Mr. Stephen Maharaj for second defendant
Practice and procedure - Striking out — Defendants sought to have various paragraphs of the plaintiffs' statement of claim struck out as an abuse of process of the court as it had been fully litigated in an action that was before the High Court previously and that the first four plaintiffs' names be struck out and costs — Plaintiffs had claimed damages for fraud, conspiracy and breach of duty — Order 18, rule 19 of the Rules of the Supreme Court 1975 considered — Res judicata — Court found that the lateness of the plaintiffs' application was no bar to success — Judgment in favour of defendants.
This application was heard in Chambers but because of its importance I have decided to deliver my judgement in open court.
Inherent Jurisdiction
The ‘inherent jurisdiction’ of a superior court has been exercisable from the earliest days of the common law (see per Lord Blackburn in The Metropolitan Bank, Limited & Arthur Cooper v Alexander Gopsell Pooley (1885) 10 A.C. 210 HL at 220–221). This jurisdiction enables the court to fulfil itself, properly and effectively, as a court of law (see per Lord Morris of Borth-y-Gest in Connelly v Director of Public Prosecutions [1964] AC 1254, HL at 1301>; Lord Diplock in Bremer Vulkan Schiffbau Und Maschinenfabrik v South India Shipping Corporation Ltd, [1981] AC 909 HL at 977–979). Thus the exercise of its powers under the inherent jurisdiction of the court is derived not from any statute or rule of law, but from the very nature of the court as a superior court of law. Obviously, the essential character of such a court necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused (see Alexander v Williams (1984) 34 W.I.R. 340 CA at 345c-347b).
It has been said that the overriding features of the inherent jurisdiction of the court are, that it is part of procedural law, not part of substantive law: it is exercisable by summary process, without a plenary or full trial, it may be invoked not only in relation to parties in pending proceedings, but in relation to anyone, whether a party or not, and in relation to matters not raised in the litigation between the parties, it must be distinguished from the exercise of judicial discretion; and it may be even in circumstances governed by rules of court (ibid).
Further, the inherent jurisdiction of the court has been defined as being the reserve or fund of powers, a residual source of powers which the court may call upon as necessary whenever it is just and able to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them (see Stewart Chartering Ltd. v C. & O. Management S.A. & Ors., [1980] 2 Lloyd's Rep.116. Under the inherent jurisdiction of the court, the court is entitled to control and regulate its process and proceedings and to prevent any abuse of process or any obstruction or interference with the administration of justice.
The Application
It is therefore not surprising that the first and third defendants (herein referred to as “these defendants” or “the applicants”) have invoked the courts jurisdiction in a composite application Order 18 rule 19, Order 21 rule 5, Order 23, rule 2, section 318 of the Companies Ordinance, Ch.31 No.l and/or under the inherent jurisdiction of the court for the following reliefs:
“(1) An order that so much of this action as seeks to challenge the appointment of the receiver whether by reason of conspiracy or otherwise and/or paragraphs 22, 23, 24, 25, 26, 27, 28, 29, 30 and 31 of the statement of claim herein be struck out and/or stayed, as an abuse of process of the court, on the ground that such challenge could and should have been and/or has been fully litigated in High Court Action No. S–2263 of 1988, Civil Appeal No.93 of 1989 and Privy Council Appeal No.47 of 1990 and/or in High Court Action No.S245 of 1989.
(2) Further and/or in the alternative, an order that the first, second, third and fourth plaintiffs be struck out from this action on the ground that only the fifth plaintiff has pleaded a cause of action and/or a claim which is not frivolous and/or vexatious and/or an abuse of the process of the court.
(3) Further and/or in the alternative, an order that the proceedings in this action be stayed until the plaintiffs have paid the first and third defendants' costs of the actions mentioned in paragraph (1) hereinabove and/or their costs of other actions which the plaintiffs or some of them have brought against those [these] defendants and subsequently discontinued.
(4) Further and/or in the alternative, an order pursuant to (a) Order 23 [of the] Rules of the Supreme Court, 1975 and/or (b) section 318 of the Companies Ordinance, Chapter 31 Number 1 and/or (c) the inherent jurisdiction of the Honourable Court, that:
(i) The plaintiffs or any one or more of them do give security for the first and third defendants' costs in this action in the sum of $600,000.00 or such other sum as to the Honourable Court may seem just and expedient, to the satisfaction of the Honourable Court, within 21 days of the date of an order, herein.
(2) And/or all further proceedings in this action be stayed pending provision by the plaintiffs or any one or more of them [giving] of security for costs of the first and third defendants.
(5) That the costs of this application fit for two (2) counsel be paid by the plaintiffs to the first and third defendants.”
This four pronged application is supported by two affidavits, both of which were sworn to by their first defendant, Harold Sookhan and filed herein on the 4th December, 1996 and 14th January, 1997 respectively. No affidavit in opposition has been flied by or on behalf of the plaintiffs or any of them. Consequently, the evidence before the court in relation to this application is undisputed.
The Facts
The proceedings between the parties have been acrimonious and lend validity to the adage, “litigation is war”. The background to the plethora of litigation between these parties, or at any rate, between some of them at times and between all of them at other times can be stated without finesse. The fifth plaintiff was at all material times a construction company in which the other plaintiffs were shareholders and directors. Not unnaturally, loans were made by the Royal Bank of Trinidad Tobago Limited (“Royal Bank”) to the fifth plaintiff and the other plaintiffs were and became guarantors of these loans. As well, one Gobin Singh (since deceased) was the guarantor of the debts he fifth plaintiff to Royal Bank (referred to in the pleadings as “the Gobin guarantee”) which guarantee is contained in a deed dated the 1lth January, 1988.
As security for these loans the fifth plaintiff:
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(i) issued the usual debenture over all its undertakings and other properties in favour of Royal Bank;.
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(ii) granted two mortgages both dated the 28th day of August, 1985 in favour of Royal Bank over certain properties described in paragraphs 8 and 9 of the statement of claim;
and
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(iii) granted a bill of sale dated the 2nd day of June, 1987 and registered as No.B/S 9218 of 1987 over certain chattels which are more fully described in paragraph 10 of the statement of claim.
Further, as is usual in these transactions, a number of guarantees were given by the natural plaintiffs in favor of Royal Bank and these are more fully described in paragraph 11 of the statement of claim. By way of further security, Royal Bank obtained certain collateral mortgages including a deed of mortgage dated the 28th day of August, 1985, registered as No. 15000 of 1985 and varied by a certain deed registered as No.356 of 1986, and a memorandum of mortgage dated the 28th day of August 1985 and filed in Volume 2168, Folio 447, all whereof are fully described in paragraph 12 of the statement of claim.
By a tripartite deed dated the 1lth January, 1988, made between Royal Bank, the fifth plaintiff and the said Gobin Singh and intended to be supplemental to the aforesaid debenture, as well as the aforesaid deed No. 15000 of 1985, as varied by deed No.356 of 1986, in consideration of Royal Bank's forbearance to exercise its powers contained in these securities which Royal Bank had become entitled to exercise as at the 11th January, 1988, and also in consideration of the sum of $3,000,000.00, then due and owing by the fifth plaintiff to Royal Bank, the said Gobin Singh and the fifth plaintiff jointly and severally covenanted, inter alia, to pay Royal Bank the said sum of $3,000,000.00 together with interest thereon and by monthly installments as therein provided.(see paragraph 13 of the statement of claim).
Later in the year 1988, by three letters all dated the 10th November, 1988 Royal Bank demanded payment of the monies secured by the several securities from the first plaintiff, the fifth plaintiff and the said Gobin Singh. Apparently, the plaintiffs (either collectively or otherwise) were unable to liquidate this indebtedness and on the 21st November, 1988, the said Gobin Singh paid the sum of $2,919,136.86 to Royal Bank, being the aggregate of all monies then owed by the fifth plaintiff to Royal Bank. In consideration of payment of the aforesaid sum, Royal Bank (as beneficial owner) by deed of assignment dated...
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