Alton Brown and Another v Attorney General and Others

• Jurisdiction: Jamaica
• Judge: Sykes J
• Judgment Date: 30 July 2013
• Neutral Citation: [2013] JMSC Civ 106
• Docket Number: CLAIM NO. 2011 HCV 01026
• Court: Supreme Court (Jamaica)
• Date: 30 July 2013

[2013] JMSC Civ.106

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO. 2011 HCV 01026

Between:

Alton Brown (Claiming under Power of Attorney from Alexander Brown Registered at volume 519 folio 289)

First Claimant

AND

Alton Brown

Second Claimant

and

The Attorney General

First Defendant

AND

Revenue Protection Division

Second Defendant

AND

Major Johanna Lewin

Third Defendant

AND

Gregory Farquharson

Fourth Defendant

AND

Horace James

Fifth Defendant

AND

Cranston Morgan

Sixth Defendant

AND

Martin Walker

Seventh Defendant

AND

Ricardo Hadley

Eighth Defendant

AND

Melville McLeod

Ninth Defendant

AND

David Levy

Tenth Defendant

AND

Krissanne Graham

Eleventh Defendant

CIVIL PROCEDURE RULES — RULE 26.3 (1) (a) — APPLICATION FOR STRIKING OUT FOR NON-COMPLIANCE WITH COURT ORDER

Sykes J

1 The claimants, Mr Alexander Brown and Mr Alton Brown are brothers. The court will use their first names to distinguish them. Not referring to their last names should not be taken as a lack of respect. The claimants have applied for an order striking out of the defendants' statement of case on the ground that the defendants have failed to comply with the order of Kirk Anderson J dated March 27, 2012. They also say that the defendants have not advanced any reason for non-compliance with the order upto the time of the filing of this striking out application. The claimants concluded their application by saying that the defendants' non-compliance is wilful, contumacious and calculated to frustrate or delay the court process.

2 The application also asks that judgment be entered in favour of the claimants in terms of:

• a. return of a BMW X5 motor vehicle which was seized by the State;

• b. return of J$530,000.00 which was seized from Alton's home in Clarendon;

• c. damages for wrongful detention and loss of use;

• d. and interest.

What has led to this application?

3 This claim has its origins in a criminal investigation which began in 2010 or before. On June 30, 2010, Mr Gregory Farquharson, Mr Martin Walker and Mr Ricardo Hadley, all members of the Jamaica Constabulary Force, as well as Mr Horace James, Mr Melville McLeod and Miss Krysanne Graham, members of the Revenue Protection Division, (RPD) seized a BMW X5 motor vehicle under a warrant issued to an member of the RPD. The claimants say that the warrant was issued to Major Johanna Lewin and the defendants alleged that it was issued to Mr Horace James. Mr David Levy, a customs officer, was also part of the raiding party. The allegation appears to be that the vehicle was brought into Jamaica or removed from the wharf in breach of the Customs Act. Alton and another person have been charged with criminal offences relating to the vehicle and that matter is presently before the Resident Magistrate's Court for the Corporate Area.

4 The vehicle has not been returned despite several letters of demand for its return. The letters were sent to the RPD and Major Johanna Lewin.

5 In March 7, 2011, Alton filed a claim, in a representative capacity, against the defendants alleging that the defendants unlawfully seized a BMW X5 motor vehicle. The claim in respect of the vehicle is in detinue. Alexander is the owner of the vehicle and it was left in the custody of Alton.

6 On March 28, 2011, the claim was amended by Alton joining the claim in his personal capacity. The claim was further amended on April 4, 2011. On March 21, 2011 (arising from the initial claim filed and served), the defendants filed and served a request for information on Alton. He answered the questions by March 28, 2011. The claim form and the particulars of claim do not state clearly what the criminal charges are. No defence was filed until July 11, 2011, well outside the time permitted by the rules.

7 The claim also alleges that Mr Gregory Farquharson, Mr Horace James, Mr Martin Walker, Mr Ricardo Hadley, Mr Melville McLeod, Mr David Levy and Miss Krysanne Graham have unlawfully detained JA$530,000.00 taken from Alton's home in the parish of Clarendon. In respect of Mr Cranston Morgan, it was alleged that told Alton that vehicle would not be returned because it was being held while an investigation was conducted.

8 The defence alleged that the vehicle was removed from the wharf by way of a fraudulent letter purporting to say that a waiver on the duties payable had been granted. The defence admits that the vehicle was taken by the defendants but says that it was lawfully seized under a valid warrant. The basis of the seizure was that possession of the vehicle without the duties being paid constituted dealing or possessing uncustomed goods as defined by the Customs Act. The defence denies that Mr Cranston Morgan told Alton that the vehicle would be detained pending investigations. The defence says that the warrant was not issued to Major Johanna Lewin but to Mr Horace James. The defence denies that money was taken from Alton's home and further denies that Messieurs Walker and Hadley were present at the operation at Alton's Clarendon home but does not deny that investigators went to the home.

9 Alton filed and served his own request for information on January 24, 2012. No response came from the defendants. This non-response led Alton to file an application on March 12, 2012 in which he sought the following orders:

• a. order that criminal proceedings in the Resident Magistrate's Court for the parish of St Andrew against Alton be stayed pending the outcome of the civil proceedings he brought against the defendants;

• b. Major Johanna Lewin and Gregory Farquharson be removed from investigating or from further investigating the case against Alton;

• c. the defendants be ordered to provide answer to the request for information served on January 24, 2012;

• d. the defence be struck out should the defendants fail to respond to request for further information and judgment be entered for the claimants.

10 This application was supported by an affidavit also of March 12. In the March 12 affidavit, Alton stated that he is acting in his personal capacity and under a power of attorney granted to him by Alexander. He swore that he is charged with a number of offences before the Corporate Area Resident Magistrate's Court. He indicated that the same issues arise in the civil case and therefore the criminal case should be stayed until the civil matter is finally decided. The March 12 application was filed just seven days before the trial of the criminal case was scheduled to start on March 19, 2012.

11 The application came before Christine McDonald J on March 15, 2012. Her Ladyship ordered that the Director of Public Prosecutions (DPP) be served and the matter was adjourned to March 22, 2012. The merits of the application were not examined by her Ladyship. During the period between March 15 and 22, Alton filed the first of two affidavits dated March 19, 2012. In this affidavit he outlines his effort to serve the Clerk of Court with papers in the civil matter. It is not clear why he was doing this because the order was that the DPP be served. The Clerk, understandably, declined to accept service on the basis that she was not a party to the proceedings. The second March 19 affidavit chronicles the sequence of correspondence between Alton's former attorneys and Major Lewin. He outlines his displeasure with her conduct of the investigation. He claims that he was informed (the source is not stated) that several “clandestine means to track and listen to [his] telephone conversations on both [his] cellular, home and office phones” were employed by the defendants.

12 It is not clear whether the matter was heard on March 22, 2012, the date to which it was adjourned by Christine McDonald J. What is beyond doubt is that the matter came before Kirk Anderson J on March 27, 2012. His Lordship made a number of orders. In respect of the request for information, his Lordship ordered that the defendants only needed to respond to requests 1, 3, 4, 6 and 7. The date for compliance with this part of the order was set for April 13, 2012. In addition, it was also ordered that the defendants state with specificity the sum of money allegedly owed to the Customs Department by the claimants in respect of the importation of the relevant vehicle (a BMW X5) and the defendants were also to state whether any duties of money had been paid in respect of the same motor vehicle and if so, how much, the name of the person or entity to whom the sum was paid. No date for compliance was set in respect of this part of the order. The first two orders sought by the March 12 application were not adjudicated upon. Those were adjourned to April 10, 2012.

13 On April 10, the March 12, 2012 application was adjourned to November 23, 2012. After this adjournment, Alton filed yet another affidavit dated April 18, 2012 affidavit. In this affidavit Alton stated that the defendants had not complied with those parts of Kirk Anderson J's order for which the deadline for compliance was April 13, 2012.

14 Despite being adjourned to November 23, 2012, the matter came before McDonald-Bishop J on May 9, 2012. By this time, Alton had filed another application for striking out the defendants' statement of case. He wanted this application to be heard with the March 12 application. By way affidavit evidence placed before Sykes J, Alton stated that McDonald-Bishop J declined to hear any of the applications because her Ladyship was told of the pending appeal from Kirk Anderson J's orders of March 27. No stay of execution of Kirk Anderson J's order was in place. A subsequent affidavit from Miss Patricia Jackson, counsel for RPD, confirmed that the defendants were considering whether to appeal Kirk Anderson J's order requiring the defendants to answer those parts request for information they were ordered torespond to. Even on May 9 when the matter came before McDonald-Bishop J the defendants...