Motilal Ajodha v Merlene Ajodha
| Jurisdiction | Trinidad & Tobago |
| Judge | Vasheist Kokaram, J.A. |
| Judgment Date | 02 December 2021 |
| Neutral Citation | TT 2021 CA 67 |
| Docket Number | Civil Appeal No. S008 of 2020 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Year | 2021 |
THE HONOURABLE JUSTICE Vasheist Kokaram, J.A.
Civil Appeal No. S008 of 2020
Claim No. MA S335 of 2012
IN THE COURT OF APPEAL
(CHAMBER COURT)
Ms. Kelly-Jo Victoria Sirju, Attorney at Law for the Appellant.
Mr. Nigel Trancoso, Attorney at Law for the Respondent.
On 25 th November 2021, I ordered that the bundle entitled “Trial Bundle Exhibits” do stand as the further supplemental Record of Appeal (“ROA”) filed by the Respondent on 29 th July 2021 subject to the filing of a joint statement by the attorneys. I now reduce to writing my reasons for so doing.
The issue that arises for determination is whether a bundle entitled “Trial Bundle Exhibits” should be included in the ROA pursuant to rule 64.12 of the Civil Proceeding Rules 1998 (“CPR”).
On 29 th March 2021, the Respondent filed a Notice of Application seeking leave to file a further supplemental ROA. The grounds for the application were that during the Respondent's perusal of the Appellant's ROA, Supplemental ROA and submissions the Respondent discovered that the Appellant failed to include in the ROA the “Trial Bundle Exhibits” filed on 12 th February 2019 and 28 th May 2019.
It ought to be an easy and non-contentious matter between the parties to determine what should comprise the ROA for an appeal. Accordingly, on 5 th May 2021 this court made the following order by way of assisting the parties to find some consensus as to what further documents should be included in the ROA:
1. “Permission is granted to the Respondent to file and serve a further Supplemental Record of Appeal comprising those documents referred to in a Trial Bundle filed on 12th February, 2019 by the Respondent, which are attached to the Respondent's Affidavit in Reply filed on the 6th October, 2017 on or before the 14th June, 2021;
2. Liberty to the Respondent to file any other documents in this Supplemental Record of Appeal by agreement or by further order;
3. The Respondent to file and serve further written submissions in relation to those documents and in particular to paragraphs 23 and 24 of the Appellant's written submissions on or before 5th July, 2021;
4. The Appellant to file and serve its written submissions in reply on or before 5 th August, 2021;
5. The Appeal Management Conference is adjourned to 23 rd June, 2021 at 12:30pm for a status hearing.”
Paragraphs 23 and 24 of the Appellant's submissions in the substantive appeal in fact referred to this trial bundle. The Appellant made the submission that this bundle was wrongly admitted into evidence by the trial judge:
“23. The Appellant submits that in the morning, mere minutes before the Trial commended, the Respondent produced and effected service of a trial bundle filed on 12 th February 2019 on the Appellant. Contained in that said trial bundle and seemingly attached to the Respondent's affidavit in reply filed on 6 th October 2017 were several new and undisclosed documents which were not attached to the original affidavit evidence by the fact that these documents were unstamped 6 th October 2017. These new and undisclosed documents were brought to Counsel's attention mid way during cross examination. At that point in time Counsel would not have had the opportunity to take the Appellant's instructions regarding same nor would Counsel have had the chance to indicate an agreement to or disagreement with the authenticity and contents of the said documents. This blatant attempt to mislead the Court and circumvent the rules of disclosure and evidence was unfortunately successful. The Honourable judge ought to have disallowed same into evidence.
24. Even further, the Appellant submits that during the cross examination the Respondent appears to be confused of the documents she herself produced the morning of the trial as when asked by counsel “Ms. Ajodha I put to you that you are listed as a housewife in these documents because you were in fact a housewife” she stated “That is not true because the document-this document he gave you..”. The Appellant submits that the Respondent produced documents that she herself disputed the contents and authenticity of during cross examination and therefore the Honourable Judge ought not to have taken this evidence into consideration when making his findings.”
The Respondent did not file submissions in relation to these new documents but filed the further supplemental ROA on 29 th July 2021 with the Trial Bundle Exhibits comprising 26 documents.
The Appellant filed submissions in reply on 18 th August 2021 to specifically address this issue whether these documents should be included in the ROA. She contended:
-
(a) On 12 th February 2019 the Respondent filed a trial bundle which contained new documents that were previously undisclosed to the Appellant.
-
(b) On 28 th May 2019 on the morning of day 2 of the trial the Respondent filed another trial bundle titled “trial bundle exhibits” which contained new documents which were not previously disclosed to the Appellant.
-
(c) These new documents were brought to the attention of Counsel for the Appellant during cross examination of the Respondent.
-
(d) The Respondent attempted to mislead the court and circumvent the rules of disclosure and evidence and was in fact successful in doing so. The Honourable Judge ought to have disallowed all new documents which were not attached to the affidavit evidence sworn by the parties.
-
(e) All documents not attached to the affidavits of the parties ought not to have been allowed into evidence as they were not properly tendered into evidence.
-
(f) The Respondent has failed to lay the foundation for the Court of Appeal to adduce or consider fresh evidence.
This appeal is of course not a re-trial. It is a review of the lower court's decision and to determine whether the trial judge's findings were plainly wrong. See Beacon Insurance Co. Ltd v Maharaj Bookstore Ltd [2014] UKPC 21. The ROA serves three main functions: to assist the judges of the full court in pre-reading the relevant material that is relevant to the grounds of appeal; to place before the court the material relevant to the issues raised in the appeal which were before the lower court and which assist in advancing the arguments on the appeal; and to facilitate the efficient and expeditious conduct of the appeal.
The documents enumerated in rule 64.12(2) CPR are a composite list of such documents required to be included in the ROA. However, parties are reminded to have a key grasp of the issues raised on the appeal as a guide to determine what relevant documents ought to be included in the ROA and in what manner it should be presented. Far too often voluminous documents are filed which have no bearing on the appeal for example, the filing of both the original pleadings and the amended pleadings, interlocutory orders, correspondence between attorneys, court notices to the parties all when it is not relevant to do so and unnecessary duplication of the same documents. This inevitably increases the costs to the litigant and can make the hearing cumbersome.
Blackstone's Civil Practice 2011 provides salutary advice that deserves repeating:
“ 74.25 The key to deciding what to include in the appeal bundle is having a clear grasp of the real issues raised by the appeal. What the appeal court does not want is an appeal bundle put together in an unthinking manner, including the whole trial bundle and miscellaneous superfluous documents, such as solicitors' correspondence, unless these materials go to the issues raised by the appeal. ( Scribes West Ltd v Relsa Anstalt) No. [2004] EWCA Civ 835. No more than a single copy of each document should be included unless there is good reason for doing so.”
This latter guidance was adopted in our Practice Direction on “Filing of Records of Appeal under the Civil Proceeding Rules 1998” 1 which prescribes at paragraph 4(d) that “unless there is good reason, no more than one copy of any document should be included.” It also requires exhibits to affidavits to be separately identified. See paragraph 4(j) on the Practice Direction on filing of Records of Appeal. 2
Fresh evidence of course cannot be introduced into a ROA unless the court exercises its discretion to permit it. See rule 64.17(2) CPR 3 and Scaffolding Manufacturers (Trinidad) Limited v Ian Gonzales CA No. S250/2014.
Rule 64.12 (g) and (h) CPR specifically governs this aspect of this procedural dispute with respect to the status of this Trial Bundle “Exhibits”. Rule 64.12
“64.12(2) Within 28 days of receipt of the notice under rule 64.8 that the transcript or other record is available or within such time as may be directed on an application made under rule 64.11, the appellant must file with the court office four (or in the case of an appeal that may be heard by two judges of the Court of Appeal, three) bundles of documents comprising a copy of each of the following documents in the order set out below, bound, indexed and properly paginated:
………………..
(g) such affidavits, exhibits or parts of exhibits which were in evidence in the court below and are relevant to any question at issue on the appeal which were put in evidence before the court below;
(h) such parts of the bundle of documents under rule 40.1(2) as are relevant to any question at issue on the appeal.”
In my view, in so far as the appellant contends that the trial judge wrongly used or admitted into evidence some documents in this bundle, so long as these documents were used at the trial by the trial judge, it will be a matter for the full court to determine whether the trial judge was plainly wrong to do so and what weight should be attributed to it. It may, subject to the question whether the trial judge...
To continue reading
Request your trial