Rattansingh v Attorney General et Al

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Sharma, J.A.,Warner, J.A.,Warner J.A.
• Judgment Date: 11 April 2002
• Neutral Citation: TT 2002 CA 22
• Docket Number: Civil Appeal No. 105 of 2000
• Date: 11 April 2002

Court of Appeal

Sharma, J.A.; Warner, J.A.; Lucky, J.A.

Civil Appeal No. 105 of 2000

Rattansingh

and

Attorney General et al

Appearances:

Mr. H. Seunath S.C. for the appellant, with him Mr. A. Ramlogan.

Mr. T. Thorne for the respondents.

Limitation of Action - Action for damages for detinue or conversion — Whether the proceedings were statute bared by virtue of section 5 of the Limitation of Personal Actions Ordinance, Chap 5:6 due to the fact that they had not been brought within four years after cause of action arose — Appellant contended that since criminal proceedings were in, progress the action could not be instituted until such proceedings had been concluded — Finding that there was no rule of law barring the institution of civil proceedings for conversion and detinue within the statutory limitation period while criminal proceedings were pending — Appeal dismissed.

Sharma, J.A.

1 I have read in draft the judgment of Warner, J.A. I agree with it and do not wish to add anything to it.

S. Sharma,

Justice of Appeal

Warner J.A.

2 This appeal concerns certain events which occurred during the period 17th July 1984 and 3rd August 1984 when 3,016 motor car tyres were seized by the Comptroller of Customs and Excise (the second respondent) from the premises of Joseph Rattansingh trading as Joseph Rattansingh Tyre Service. He, (Rattansingh) hereinafter referred to as “the deceased” died on the 24th March 1994. He had been notified of the seizure and was informed that he was entitled to notify the Comptroller that he claimed the goods. Such notice was required to be given within one month of the seizure, pursuant to section 212 of the Customs Ordinance Chap. 32 No 2, now section 220 of the Customs Act Chap. 78:01 (the Act). He duly notified the Comptroller of his claim to the goods. It was not until 1987 that the deceased and one Farouk Warris were charged by the police with conspiring with other persons to defraud the Customs and Excise Department by providing forged import licences in respect of the tyres. On the 28th March 1988 the charge of conspiracy was dismissed and the deceased was discharged, but Warris was committed on charges of forgery, which were found to have been disclosed on the depositions. These charges were subsequently determined on the 16th February 1998 when Warris was acquitted.

3 The proceedings which are the subject of this appeal were brought on the 10th August 1998, when Carlton Rattansingh, the legal personal representative of the deceased's estate claimed the return of the tyres and damages for detinue or alternatively damages for conversion. The respondents raised the defence of limitation by an amendment granted on the 25th November 1999.

4 A consent order was subsequently recorded by the parties before Tam, J. in which it was agreed that the only issue to be tried was whether the proceedings were statute barred by virtue of section 5 of the Limitation of Personal Actions Ordinance Chap. 5 No 6 because they had not been brought within four years after the cause of action arose.

5 Jamadar, J. held that the action was statute barred and he dismissed the action. This is an appeal from his judgment.

6 The issues for determination are these: -

• 1) when did time begin to run in respect of the action?

• 2) whether the pending criminal proceedings against Warris impacted on potential civil proceedings.

• 3) if they did, whether the appellant was required by law to await the outcome of those criminal proceedings before instituting this action.

7 I think I ought to make the point immediately that the fact that the criminal proceedings took upwards of ten years to be determined is yet another instance of inertia which, we have consistently deplored. We were not told of the reason for this delay, and therefore conclude that it was inexcusable. However, many of the deep-rooted problems in the system have been resolved. Such cases ought now to be rare.

8 The power of search and seizure is vested in a customs officer by section 206 of the Customs Act Chap. 78:01 and it provides:

“If an Officer has reasonable cause to suspect that any uncustomed or prohibited goods, or any books or documents relating to uncustomed or prohibited goods, are harboured, kept or concealed in a house or other place in Trinidad and Tobago, and it is made to appear by information on oath before a Magistrate or Justice in Trinidad and Tobago, the Magistrate or Justice may by special warrant under his hand authorise the Officer to enter and search the house or other place, by day or by night, and seize and carry away any uncustomed or prohibited goods, or any books or documents relating to uncustomed or prohibited goods as may be found therein; and the Officer may, in case of resistance, break open any door, and force and remove any other impediment or obstruction to such entry, search or seizure.”

9 The provisions of Section 220 by virtue of which the appellant gave notice of his claims under the Customs Act are as follows:

“Whenever a seizure is made, unless in the possession of or in the presence of the offender, master or owner, as forfeited under the customs laws, or under any written law by which Officers are empowered to make seizures, the seizing Officer shall give notice in writing of the seizure and of the grounds thereof to the master or owner of the aircraft, ship, carriage, goods, animals or things seized, if known, either by delivering it to him personally, or by letter addressed to him, and transmitted by post to, or delivered at, his usual place of abode or business, if known; and all seizures made under the customs laws or under any written law by which Officers are empowered to make seizures shall be deemed and taken to be condemned, and may be sold or otherwise disposed of in such manner as the President may direct, unless THE PERSON FROM WHOM SUCH SEIZURE SHALL HAVE BEEN MADE, OR THE MASTER OR OWNER THEREOF, OR SOME PERSON AUTHORIZED BY HIM, WITHIN ONE CALENDAR MONTH FROM THE DAY OF SEIZURE GIVES NOTICE IN WRITING TO THE COMPTROLLER THAT HE CLAIMS THE THING SEIZED, WHEREUPON PROCEEDINGS SHALL BE TAKEN FOR THE FORFEITURE AND CONDEMNATION THEREOF….” (Emphasis added)

10 As indicated, the deceased made his claim under the Section, but no further steps were ever taken by the Comptroller for forfeiture or condemnation. Under this section of the Act, the Comptroller was required to institute proceedings to determine the legality of the seizure. Section 255(1) requires the Judge or Magistrate before whom such suit o information is commenced to certify whether there was probable cause for such seizure. If there is probable cause the person who made the seizure is not liable to action or suit. If the judge or magistrate has not so certified, then the plaintiff shall recover the thing seized without costs, but no conviction shall be recorded against the defendant.

11 Although the deceased was acquitted in 1988, it was not until two years after, that his attorney-at-law acting on his behalf, wrote a letter to the Comptroller demanding that the tyres be returned.

12 Attorney indicated in that letter that the appellant had purchased the tyres from Warris for $707,940.00; that in view of his (the deceased's) discharge, and the fact that the validity of Licence No 1443 was not being contested, the tyres be returned.

13 There was no reply to that letter nor to another demand made for their return on the 17th October 1990 - in this letter, attorney threatened to take appropriate legal action if the tyres were not returned.

14 Almost eight years after, the plaintiff's Attorney made yet another demand for the return of the tyres by a letter dated 10th March 1998. The Acting Comptroller did reply by letter of 20th April, 1998 in which he stated that attempts were being made to locate the tyres and that the Office was liaising with the Office of the Director of Public Prosecutions “having regard that these were fraud cases which were handled by the Police and the Office of the Director of Public Prosecutions.” The writ was filed in August of that year.

15 There was much argument at first instance about the power of the police to seize and search. Among others, the case s of Chic Fashions (West Wales) Ltd. v. Jones [1968] 2 Q.B. 29 and Ghani v. Jones [1970] 1 Q.B. 693 were cited by the appellant to support their argument that the police were entitled to seize and detain goods which they reasonably believed to be stolen and which were the fruit of the crime; and to detain them until either the completion of their investigations or completion of the trial.

16 Mr. Seenath argued before this Court that if the tyres were brought in illegally, nobody should be able to use them until the matter was determined. In short, the thrust of the argument was that the tyres were lawfully detained up to and until the time that Warris was discharged and accordingly, this cause of action arose after the 16th February 1998. In essence, it was the “fruit of...