The National Commercial Bank of Trinidad and Tobago Ltd v Mahara
| Jurisdiction | Trinidad & Tobago |
| Judge | Persad-Maharaj, J |
| Judgment Date | 26 February 1996 |
| Neutral Citation | TT 1996 HC 44 |
| Court | High Court (Trinidad and Tobago) |
| Docket Number | No. S 5 of 1988 |
| Date | 26 February 1996 |
High Court
Persad-Maharaj, J.
No. S 5 of 1988
For the plaintiff' — Mr. Prakash Deonarine
For the defendant — Mr. Edwin K. Roopnarine
Practice and procedure - Rules of Supreme Court — Plaintiff's claim against defendant for the sum of $122,338.89 being the balance of monies due and owing on a promissory note signed by the defendant — The defendant's attorney was not entitled to make the preliminary point at the trial and it should be made by an interlocutory application at least before pleadings closed — By virtue of O. 18 r. 11 and O. 33 r. 3 and 4 of RSC the defendant was duty bound to get a Master's order setting down the preliminary point to be determined by a court before the trial — Judgment for the plaintiff on the issue at hand.
WRIT OF SUMMONS:
On the 5th day of January, 1988, the plaintiff filed his writ of summons in this action. The Writ carries no endorsement but the words “statement of claim (attached)” is endorsed thereon.
The statement of claim was attached to the writ of summons. The statement of claim pleaded as follows:–
The plaintiff's claim against the defendant for the sum of one hundred and twenty two thousand, three hundred and thirty eight dollars and eighty-nine ($122,338.89) cents being the balance of monies due and owing by the defendants to the plaintiff by way of a promissory note signed by the defendant on the 31st day of May, 1983.
The plaintiffs are bankers carrying on the business at their branch at the corner of High and Penitence Streets, San Fernando and else where and at all material times the defendant was a customer of the plaintiff of the said branch.
On or about the 31st day of May, 1983 for value received, the defendant by his promissory note promised to pay (sic) to the plaintiff the sum of one hundred and twenty-nine thousand, three hundred and fifty-three dollars and twenty-eight ($129,3 53.28) cents in the manner following, one thousand, five hundred and thirty-nine dollars and ninety-two ($1,539.92) cents. On the 27th day of June, 1983 and thereafter, the sum of one thousand, five hundred and thirty nine ($ 1,539.(10) dollars on the 27th day of each succeeding month until the whole of the said sum should be fully paid and further by the said note, payment of any of the said instalments the whole of the said sum of monies then remaining should become immediately payable with interest at the rate of 11 % per annum on the said sum the date of default to the date of payment. The defendant made default in payments and despite repeated requests has failed and/or neglected to pay the balance of one hundred and twenty-two thousand, three hundred and thirty-eight dollars and eighty-nine($122,33 8.89) cents to date or at all. And the plaintiff claims:–
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(a) The sum of$122,338.89 being the principal balance.
Interest of the said principal balance of $I22,338.89 at the rate of I I% per annum from the date of the filing of this writ of summons until judgment and/or payment.
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(c) Costs.
On the 3rd day of February, 1988 the defendant through his attorney at law (Mr. E.K. Roopnarine) entered an unconditional appearance to the plaintiff's writ of summons and statement of claim.
On the 18th day of February, 1988, the defendant delivered his defence. Paragraph (1) of the defendant's defence states: The defendant will contend that the plaintiff's statement of claim disclosed no reasonable cause of action as against him.
I mention this plea at this stage because it is on paragraph (1) of the defence that the defendant's attorney at the trial wanted to make a preliminary point that the plaintiffs statement of claim discloses no reasonable cause of action.
By virtue of O. 20, r.1 of the Rules of the Supreme Court, 1975, Trinidad and Tobago (hereinafter called “the R.S.C.”)the plaintiff amended the statement of claim on the 16th day of March, 1988 as follows:–
Further and or alternative by virtue of an agreement entered into between the plaintiff and the defendant on or about the 31st day of May, 1983 the plaintiff advanced the sum of $129,353.28) to the defendant and the defendant agreed to repay on demand the sum of $129,353.28) with interest at the rate of ll% per annum.
Despite repeated requests the defendant has failed and or neglected to repay the principal balance of$122,338.89.
It appears to me that the plaintiff had formulated the claim in the alternative in quasi-contract or contract.
On the 25th day of April, 1988, the plaintiff filed an O.14 summons for final judgment against the defendant and that the defence be struck out on the grounds as stipulated in O.18, rule 19 (a) to (d) inclusive of R.S.C. and also under the inherent jurisdiction of the court.
On the 30th May, 1988 the defendant filed a summons to amend the defendant's defence as shown in red in the draft amended defence annexed to the summons. Also in support of the said amended defence, the affidavit of one Laurence Olliverra, the Chief Clerk to the defendant's attorney was filed on the said 30th day of May, 1988.
It is interesting to note that both the 0.14 summons and that the amended defence were listed to be heard before the Master on the 7th day of June, 1988.
Master Best (as he then was) on the 7th day of July, 1988 made the following orders:–
That the defendant's defence be amended in the manner shown in red, and that delivery of the defence be dispensed with and that costs of the application be costs in the cause.
The plaintiff's summons dated the 25th day of April, 1988 be dismissed and the amended defence do stand Reply within seven (7) days if necessary from the date hereof, the estimated length of trial be one (1) day, the above matter to be tried at San Fernando by a judge without a, jury in the month of November, 1988, with costs in the cause. The above order was entered on the 27th day of July, 1988. In coming to his decision on both summonses the master heard both attorneys for the parties and the affidavits filed above were considered.
It appears that Master Best on the 7/7/88 treated the plaintiff's O.14 summons as a summons for direction and then made an order for early trial. Further the defendant did not apply by summons to strike out the amendment made by the plaintiff without leave. See — O. 20, r.4 of R.S.C. and also precedent 46 at p.
104 Vol, 32, (1974 issue) of Atkins Court Form. 2nd edit.
By dismissing the plaintiffs' Order 14 summons and granting that the defendant's amended defence do stand and ordering early trial, it appears to this court that Master Best in essence was granting to the defendant unconditional leave to defend. In such circumstances the O.14 dismissal was unappealable. Master Best did not say so specifically.
In this regard, I am guided by the learning in the Annual Practice (1973) O.14/3-4-26 at p.143 under the heading “Appeals.”
If I am right under this head, it appears that the judge at the trial was duty bound to proceed with the trial as Master Best O.14 summons dismissal was unappealable. The Court of Appeal, with the greatest respect, has jurisdiction in regard to appealable orders. I got some assistance in coming to my above conclusion by the learning in Sugden v. Lord St. Leoonards (1876) 1 P.D. at page 209. Of course I could be wrong on this aspect.
Mr. Roopnarine appeared for the defendant when the case was called. He submitted that:
He would like to make a preliminary point at this stage of the case and he was relying on paragraph (l) of the amended defence. That is, “The defendant will contend that the plaintiff's statement of claim disclosed no reasonable cause of action” That he was relying on O. 18 R.19 1(a) WAR. S.C.
(b) That he was asking that the plaintiff's statement of claim be struck out.
That in relation to paragraphs 2 to 8 inclusive of the defence he was not relying at this stage on these legal points as this depended on the evidence the defendant intends to lead at the trial.
That O. 33, r.3 or r.4 (1) to (3) inclusive did not apply to the preliminary point he intended to make.
Mr. Deonarine for the plaintiff made the following legal objections why the defendants attorney should not be allowed at this stage to make his preliminary point namely:–
An application to strike out the plaintiff's statement of claim under O. 18, r.19 (1) (a) ought to be made promptly and as soon as the defendant or his legal adviser became aware of the offending plea.
That it was the duty of the defendant by summons to apply to strike out the plaintiff's statement of claim before the service of the defendant's defence or the order made in relation to the amended defence.
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(iii) That the defendant's attorney gave no notice to the court that he will be relying on a preliminary point. That this nonce ought to be given at least twenty-four (24) hours before the trial started.
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(iv) That on the plaintiff's O.14 summons (which was determined by Master Best) on the 7/7/88 the defendant's attorney made no application to have the statement of claim struck out or at all. Surely he could have raised the point before the Master and thus have the point determined then.
That it was the duty to raise the striking out point before the Master when he the Master treated the O.14 summons as a summons for direction as an application under O. 18 R.19 1(a) can be made or the summons for direction...
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