Roopnarine et Al v Kissoo et Al

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Bereaux, J.A.,Narine, J.A.
• Judgment Date: 22 June 2012
• Neutral Citation: TT 2012 CA 11
• Docket Number: Civil Appeal 52 of 2012
• Date: 22 June 2012

Court of Appeal

Mendonca, J.A.; Bereaux, J.A.; Narine, J.A.

Civil Appeal 52 of 2012

Roopnarine et al

and

Kissoo et al

Appearances:

Mr. K. Sagar appeared on behalf of the appellant

Ms. S. Persaud appeared on behalf of the first to third respondents and

Mr. Ramdeen appeared on behalf of the fourth respondent

Civil practice and procedure - Non-compliance with order — Relief from sanction.

Bereaux, J.A.

I agree with the judgment of Mendonça J.A. and have nothing to add.

N. Bereaux,

Justice of Appeal

Narine, J.A.

I too agree and have nothing to add.

R. Narine,

Justice of Appeal

1 Mendonça, J.A.: This is an appeal from the judge's refusal to grant relief from sanction arising out of the appellants' failure to exchange their witness statements within the time prescribed by the judge's order.

2 The facts and circumstances giving rise to this appeal are not in dispute. They are essentially contained in affidavits of Ms. Chunilal and Mr. Fortune which were filed in support of the application for relief from sanction. Ms. Chunilal is an attorney-at-law in the employ of Mr. Gerard Raphael and had conduct of the matter on behalf of the appellants at the time of the making of the application for relief from sanction. Mr. Raphael had conduct of the matter prior to that. Mr. Fortune is a “free-lance clerk” who was employed by Mr. Raphael to file and exchange the witness statements. No affidavits were filed by the respondents in opposition to the appellants' affidavits.

3 The parties to these proceedings are all related. The first appellant and the respondents are siblings. The second appellant is the son of the first appellant. The respondents seek an order of partition of certain lands at Longdenville, Chaguanas or alternatively an order for the sale of the said lands. They also claim certain orders and directions consequent upon an order of sale or partition.

4 The respondents claim that the lands are owned jointly by them and the appellants and from time to time they all have lived in the house on the lands. The appellants, on the other hand, deny that the respondents have any right or interest in the lands. They contend in their defence that the legal interest in the lands was vested in the respondents and themselves but they have been in continuous and undisturbed possession of the lands for upwards of sixteen (16) years and accordingly the respondents' title to the lands has been extinguished by virtue of the provisions of the Real Property Limitation Act. The appellants also allege that they have spent substantial sums in additions, improvements and repairs to the house on the lands.

5 On October 19th, 2010, at a case management conference, it was ordered by the judge, inter alia, that:

• (a) The respondents and the appellants file and exchange witness statement to be used as evidence in chief at the trial of the action by the October 31st, 2011 and in default no evidence will be allowed in respect of any witness for whom a witness statement has not been filed;

• (b) objections to the witness statements and all pre-trial applications were to be filed by November 30th, 2011 and in default no application will be entertained;

• (c) the pre-trial review is fixed for January 31st, 2012; and

• (d) the trial is fixed for March 6th and 7th, 2012.

6 On October 31st, 2011, the last day for the filing and exchange of the witness statements, Mr. Raphael, attorney-at-law for the appellants, entrusted Mr. Michael Fortune with three (3) witness statements on behalf of the appellants, one witness statement was made by the First respondent and the other two (2) were made by persons who are not parties to these proceedings, namely Sheila Bapoo and Harry Narine Dally Kissoo (Kissoo). Mr. Fortune was instructed to file and exchange the witness statements.

7 At around 9:30 a.m. on October 31st, 2011 Mr. Fortune proceeded to file the witness statements. He then visited the offices of Ms. Shobna Persaud, attorney-at-law for the First, Second and Third respondents, in order to exchange the witness statements. Mr. Fortune spoke to a clerk at the offices but was informed that the witness statements of the said respondents were not yet available. Mr. Fortune informed the clerk that he would return later in the day to exchange the documents.

8 Sometime at around 3:00 p.m. Mr. Fortune proceeded to Stone Street in Port of Spain being the last address at which he knew Mr. Ramdeen, attorney-at-law for the fourth respondent, carried on his practice. When he arrived at the address he found that the offices were “locked up” and after making enquiries, he learnt that Mr. Ramdeen had relocated his practice to Cornelio Street in Port of Spain. Despite his efforts however, according to Mr. Fortune, he was unable to locate Mr. Ramdeen's office at the new address. He then left to return to the offices of Mr. Persaud but due to heavy traffic he did not get back there until 4:30 p.m. by which time Mr. Persaud's office was already closed.

9 On the following day, November 1st, 2011, Mr. Fortune visited the offices of Mrs. Persaud and served the three (3) witness statements on her. He then obtained the exact address from Mr. Ramdeen and went to his office. Mr. Fortune through inadvertence however only served two (2) of the witness statements on Mr. Ramdeen. He neglected to serve the witness statement of Kissoo. He however did not become aware of this omission until January 31st, 2012 following a communication with Mr. Raphael.

10 Mr. Raphael was unaware that there was any problem regarding the witness statements until the pre-trial review on January 31st, 2012. At the pre trial review, it became apparent that the witness statement of Kissoo was not served on Mr. Ramdeen. Up to that point it was not discovered by Mr. Raphael, nor it seemed did it come to the notice of anyone else, that all of the other witness statements of the appellants were served on November 1st, 2011 and therefore there was not compliance with the judge's order requiring the exchange of the witness statements by October 31st, 2011. It was, however, indicated to the judge at the pre-trial review that neither Mr. Ramdeen nor Ms. Persaud had any evidential objections to the evidence contained in the witness statements that were served.

11 Rule 29.13 (1) of the Civil Proceedings Rules 1998 (the CPR) provides as follows:

“If a witness statement or witness summary is not served in respect of an intended witness within the time specified by the Court then the witness may not be called unless the Court permits.”

12 The rule therefore imposes a sanction for the failure to serve a witness statement within the time specified by the Court. For good measure the judge, in effect, had imposed the same sanction in his order in the event of failure to file and exchange the witness statement by October 31st, 2011.

13 On February 1st, 2012 the day following the pre-trial review, a notice of application was filed by Mr. Raphael seeking relief from sanction arising only out of the failure to exchange the witness statement of Kissoo with Mr. Ramdeen. The application was listed for hearing on February 24th, 2012. On that date, however, both Ms. Persaud and Mr. Ramdeen indicated that the witness statements that were served on them were served on November 1st, 2011, and not October 31st, 2011. As a consequence attorney-at-law for the appellants sought and obtained permission to amend the application to include relief from sanction arising out of the failure to exchange the other witness statements within the time as ordered by the judge. The hearing of the application was adjourned.

14 Rule 26.7 deals with relief from sanctions and provides as follows:

• “26.7 (1) An application for relief from any sanction imposed for a failure to comply with any rule, Court order or direction must be made promptly.

• (2) An application for relief must be supported by evidence.

• (3) The Court may grant relief only if it is satisfied that -

  • (a) the failure to comply was not intentional;

  • (b) there is a good explanation for the breach;

  • (c) the party in default has generally complied with all other relevant rules, practice directions, orders and directions.

• (4) In considering whether to grant relief, the Court must have regard to:

  • (a) the interest of the administration of justice;

  • (b) whether the failure to comply was due to the party's attorney;

  • (c) whether the failure to comply has been or can be remedied within a reasonable time; and

  • (d) whether the trial date or any likely trial date can still be met if relief is granted.

• (5) The Court may not order the respondent to pay the applicant's costs in relation to any application for relief unless exceptional circumstances are shown.”

15 The interpretation of the rule is not in doubt. An application for relief must be made promptly and must be supported by evidence. Rule 26.7 (3) establishes a threshold test. In other words the three (3) conditions stipulated in that rule must all be satisfied before the Court may grant relief. If any of the conditions are not satisfied the Court cannot grant relief. If the conditions are satisfied, however, relief is not automatic but the Court may grant relief and in considering whether to do so must have regard to the factors outlined at rule 26.7 (4) (see Civil Appeal 65 of 2009 Trincan Oil Limited and another v. Chris Martin).

16 The application for relief from sanction was determined by the judge on March 1st, 2012. The judge stated that for the purpose of determining whether the application was made promptly, time began to run from the date of the breach rather than the date the party became aware of the breach. The date the defending party became aware of the breach was not relevant as “non compliance does not rely upon active awareness of the breach - it applies automatically… upon the occurrence of an event...