Vijay Samaroo v Inshan Ishmael Trading as the Roll on Roll Off Centre
| Jurisdiction | Trinidad & Tobago |
| Judge | Vasheist Kokaram, J.A. |
| Judgment Date | 06 May 2020 |
| Neutral Citation | TT 2020 CA 17 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Docket Number | Civil Appeal No. P381 of 2019 |
| Date | 06 May 2020 |
IN THE COURT OF APPEAL
(CHAMBER COURT)
THE HONOURABLE JUSTICE Vasheist Kokaram, J.A.
Civil Appeal No. P381 of 2019
Claim No. CV2017-01036
Mr. Shodan Mahabir instructed by Ms. Zenitaa Singh, Attorneys at Law for the Intended Appellant.
Mr. Ravindra Nanga, Attorney at Law for the Intended Respondent.
The window of time for filing an appeal by Mr. Vijay Samaroo 2, against a judgment which
Mr. Samaroo intended to appeal that decision but unfortunately his father passed away soon after the judgment was delivered. Overcome with grief he became distracted and the deadline for the filing of the appeal passed by. Later his sister in law also died. The applications referred to Mr. Samaroo's attempt of trying to get funds to pay the judgment debt, and only rousing to action to file the appeal after the time expired. To compound his misfortune he has revealed that he is a man of very little assets and is indebted to other creditors. He feels aggrieved over some of the trial judge's findings of fact and has been advised by his attorneys that his chances of success in an appeal to reverse those findings are good.
While Mr. Samaroo like any other litigant has to bear the scourge of life's unexpected challenges and the risks attendant with negative litigious results, a Court must also weigh in the balance the anguish of Mr. Ishmael. His premises were destroyed by a fire resulting in millions of dollars in losses in 2013. The trial judge has found that the fire broke out as a result of Mr. Samaroos' negligence. Some seven (7) years after that fire, Mr. Ishmael has finally obtained judgment. Subjecting himself to the discipline of the CPR he has waited this long for finality in his dispute. An extension of time to appeal would translate a final judgment into the uncertainty, anxiety and risks attendant on the appellate process. A Court must always
Mr. Samaroo has painted a tragic picture. There was a serious bundling by his attorneys in trying to file his appeal. While Mr Samaroo had to deal with his personal loss, Mr. Ishmael had to endure his own tragedy as a result of the fire in 2013. The trial was the end result of a long, hard, civil battle between these two gentlemen.
In exercising a wide case management discretion to extend time pursuant to Rule 26.1(1)(d) CPR, the Court is equipped with a valuable checklist to guide its process in giving effect to the overriding objective. The checklist includes those factors set out in Rule 26.7 CPR together with prejudice and the merits of the appeal which must be carefully balanced and weighed within the context of the overriding objective. Ultimately, after carefully balancing these considerations, Mr. Samaroo's application for an extension of time must fail for the reasons I have set out in this judgment. Further, his application for a stay of execution was bereft of the detail and evidence necessary to convince this Court that even if the window could be reopened to file an appeal, that it would be just to stay the execution of the judgment.
Of course independent of the demands of the CPR, lies the power of both men to find suitable means to resolve their outstanding dispute, a conversation which I began with both parties and which I hope can translate to further meaningful negotiations.
In this judgment I will briefly examine the main dispute and brief facts leading to these two applications and examine the applicable principles that govern them to determine the main issues:
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a) Should the Appellant be allowed an extension of time of 88 days to file its appeal? In considering this issue this judgment will explore the role of the merits of the appeal as a consideration to be taken into account by the Court in the exercise of its discretion.
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b) If the window of time is to be extended, whether in all the circumstances it is just to grant a stay of execution pursuant to Rule 64.18(1)(b) CPR.
In December 2012 Mr. Ishmael, a used car salesman, hired Mr. Samaroo to carry out extensions on his building located at Bamboo #2 Valsayn in which Mr. Ishmael stored automotive parts for his foreign owned vehicles and automotive parts business. On 27 th March 2013, while Mr. Samaroo and his workers were executing the works at the storage depot, a fire broke out and demolished the building and its contents. On the premises were Mr. Ishmael's stock and trade, card board boxes in which motor vehicle parts were stored in the stock room. He alleged that the fire came from sparks which flew from the metal saw used by Mr. Samaroo's crew. Mr. Samaroo denied that it did and alleged that the fire broke out at a different part of the building and possibly from an electrical fault in Mr. Ishmael's building.
On 24 th March 2017, Mr. Ishmael brought a claim in negligence against Mr. Samaroo as a result of the fire that took place on the said premises claiming the sum of $7,215,516.00 representing the value of the stock destroyed in the fire. The matter was managed to a trial which was largely a question of fact to determine whose version of the events as to the cause of the fire was more credible. For the Intended Respondent were two witnesses: Mr. Inshan Ishmael and Mr. Asim Mohammed and for the Intended Appellant were three witnesses: Mr. Vijay Samaroo, Mr. Aaron Samuel and Mr. Neal Parasram. There were also agreed documentation including a fire report 6 which confirmed that the fire was accidental and determined that “the area of origin was within the vehicle parts storage region located at the eastern end of the building.” The estimated damage to the building according to the fire
report was approximately $2,000,000.00 and the estimated damage to stock was approximately $10,500,000.00On 14 th October 2019, Kangaloo J. in an oral decision ruled in Mr. Ishmael's favour and found that Mr. Ishmael's building and the contents in the building were destroyed by Mr. Samaroo's negligence. The learned Judge ordered that Mr. Samaroo pay Mr. Ishmael the sum of $4,810,373.00 with interest at the rate of 2% per annum from 27 th March 2013 to the date of judgment and prescribed costs in the sum of $229,259.33. Mr. Samaroo pursuant to Rule 64.5(b) CPR had 42 days within which he could file an appeal that is up to 25 th November 2019.
Mr. Samaroo contends that after the delivery of the judgment, his father died. Because of his grief he was unable to deal with his matter until he passed his file to his current attorney on 25 th November 2019. Unfortunately, his sister in law who had been sick passed away on 26 th November 2019. He met with his attorney on 28 th November 2019. By that time the appeal was already out of time.
On 29 th November 2019, his attorneys prepared two applications for an extension of time to file the appeal and a stay of execution of the trial judge's order which Mr. Samaroo himself attended on the High Court Civil Registry to file. There is no explanation from the attorneys why they did not carry out the task of filing and serving the documents on Mr. Samaroo's behalf. The two applications were not filed in the Court of Appeal's Registry but filed in the High Court Civil Registry. The Notice of Appeal was, however, filed in the Court of Appeal's Registry. This administrative bungling is unusual to say the least for two reasons: First the Notice of Appeal bears the intitulement of “The High Court of Justice” but someone has corrected it by writing in manuscript changing it to read “Court of Appeal”. The other documents were filed in the High Court as they appear to be intituled “In The High Court Of Justice”. There is no explanation as to who made the manuscript changes and why similar changes were not made to the other documents so that they could be filed in the Court of Appeal. It therefore gives rise to the reasonable inference that while the Notice of Appeal was filed in the Court of Appeal Registry, the other documents were, as Counsel for the Respondent submitted, intended for the High Court. Although it would of course have been irregular for the High Court to grant an extension of time or stay (after the appeal was filed) that would have been a matter for the trial judge to put right when it came to the judge's attention. 7
Second, there is absolutely no mention by Mr. Samaroo of these documents being returned to the filing...
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