Baldwin v Quest

• Jurisdiction: Jamaica
• Judge: Stephane Jackson-Haisley, J
• Judgment Date: 29 September 2017
• Neutral Citation: [2017] JMSC Civ 133
• Docket Number: CLAIM NO. 2012HCV01035
• Court: Supreme Court (Jamaica)
• Date: 29 September 2017

[2017] JMSC Civ. 133

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

Jackson-Haisley, J. (Ag.)

CLAIM NO. 2012HCV01035

Between

Gary Baldwin

Claimant

and

Dave Quest

Defendant

Mr. Glenroy Mellish instructed by Glenroy Mellish & Co. for the Claimant

Mr. George Clue for the Defendant

CONVERSION AND DETINUE — BOATS SEIZED BY BAILIFF — WARRANT OF LEVY — REGISTRATION OF BOATS — FISHERIES INDUSTRY ACT — PERSON ENTITLED TO POSSESSION — SPECIFIC AND UNCONDITIONAL DEMAND — WHETHER DEFENDANT JUSTIFIED IN RETAINING THE BOATS

IN OPEN COURT

Stephane Jackson-Haisley, J (Ag.)

BACKGROUND

1 The Claimant, Gary Baldwin is a commercial fisherman of Rocky Point in the parish of Clarendon. The Defendant, Dave Quest is the bailiff for the Clarendon Parish Court. The Claimant alleges that he is the owner of two commercial fishing vessels that were seized by the Defendant on June 9, 2010, and that the Defendant has refused to deliver them to him. On February 21, 2012, he filed a Claim Form and Particulars of Claim against two Defendants, the 1 ^st being Cyril Ramdani and the 2 ^nd Dave Quest. He claims Damages, including Exemplary Damages for Conversion and Detinue arising from the unlawful seizure and retention of the commercial fishing vessels RONA AND FAYE which were wrongfully seized by the then 1 ^st Defendant on June 9, 2010 and which the Defendants have refused to deliver to the Claimant. On the 25 ^th June 2013, the case against the 1 ^st Defendant was struck out and so the 2 ^nd Defendant remains as the sole Defendant.

THE CLAIMANT'S CASE

2 In his Particulars of Claim the Claimant asserted that on the 10 ^th day of June 2010 he was the registered owner of the Vessels RONA and FAYE having purchased the vessels formerly named ROSE and SANDI, from a Mr. Levi Harrisingh. He indicated that title to the vessels was transferred to him on or about January 9, 2008.

3 He alleged that on June 9, 2010 the Defendant wrongfully seized the vessels in purported execution of a warrant on the property of Levi Harrisingh to satisfy a debt due from Mr. Harrisingh to Mr. Ramdani. Further, that on or about June 10, 2010 the Claimant provided proof to the Defendant of his purchase of the boats and asked for their return and the Defendant has refused to deliver the boats to the Claimant. Further, that on or about May 24, 2011 his attorney-at-law wrote to the Defendant providing proof of ownership and the Defendant has still refused to hand over the vessels.

4 As a result, the Claimant indicated that he has suffered loss and claims Special Damages to the tune of $1,315,000.00, General Damages and Exemplary Damages. He also seeks an Order that the Defendant forthwith deliver to him the vessel RONA with registration number BM 121 and serial number 01780552 and the vessel FAYE with registration number BM 119 and serial number 0T541204 as well as Interest, Cost and such other or further relief as this Court may consider fit.

5 At trial, the Claimant's witness statement was allowed to stand as his evidence in chief and thereafter he was subject to cross-examination. He alleged that on or about November 26, 2008 he applied for the boats which were previously known as ROSE and SANDI to be registered in his name and the registration was approved and the boats licenced. Further, that on June 9, 2010 the Defendant, then a bailiff for the parish of Clarendon seized his boats. According to him, the following day he visited the Defendant and gave him the information he had to prove that he was the owner of the boats and asked that the boats be returned to him, however the Defendant has refused to return the boats.

6 He claimed that he has suffered loss as he has lost the use of his boats and items which were on them. He has lost equipment and his fishing nets have been destroyed and at the time they were seized he estimates the cost to replace them to be $1,558,410.00. He seeks Special Damages in the sum of $1,315,000.00. In addition, the boats allowed him to supply at least 380 pounds of fish per day which in 2010 was being sold at $330.00 per pound.

7 He gave further evidence that he had applied to the Fisheries Division and had filled out the forms and signed them. During cross-examination he was asked whether he was related to Mr. Harrisingh and he said he was his “onetime” brother-in-law. He was asked about the first time he saw the Defendant and he said it was the day after the boats were seized. It was suggested to him that the boats belonged to Mr. Harrisingh and he denied this. Through him, a letter dated June 21, 2012 was tendered and admitted into evidence as Exhibit 1. This letter was written by a Claudette Milford-Allen, Director of Documentation, Information and Access Services who signed for the Permanent Secretary of the Ministry of Agriculture and Fisheries and was addressed to the Registrar of the Supreme Court. In the letter reference was made to a request for information to be granted pursuant to the Access to Information Act. In the second paragraph of the letter the following was indicated:

“Please note that the vessel Sandi was sold to Mr. Gary Baldwin and renamed “Beth”. The registration application forms for both vessels the “Rose” and the “Sandi” ad the “Beth” (renamed from Sandi) are provided.

8 A Fisheries Division Registration and Licensing of Commercial Fishing Boat Application Form was the subject of Exhibit 2. It is dated November 26, 2008, and the name of the applicant and principal owner on the first page is recorded as Gary Baldwin. This application form related to the boat “BETH” and on the second page the principal owner is also named as Gary Baldwin of a Rocky Point P.A. Clarendon address. Although this application form is not proof of registration, it shows that on November 26, 2008 the Claimant had made an application for registration of the boat “BETH”. He also tendered into evidence a document titled “Fisheries Division Fishing Inspection Report” which is also dated November 26, 2008 which is signed by a Fisheries Inspector who makes the following recommendations:

“I have inspected the Fishing Boat BETH and have found it suitable for fishing. I am therefore recommending for this boat to be licenced and registered.”

9 There is nothing further to show whether or not the boat was actually registered in the Claimant's name except for the evidence of the Claimant as contained in his witness statement.

THE DEFENDANT'S CASE

10 The Defendant filed his Defence on February 25, 2013. He expressed that as far as he is aware the owner, at the time of seizure, was Mr. Levi Harrisingh. Further, that he was instructed by Mr. Ramdani, a judgment creditor of Mr. Harrisingh to seize goods and chattel belonging to Mr. Harrisingh and that Mr. Harrisingh had executed a document dated December 12, 2008, indicating that he was the owner of the boats and would not take any steps to dispose of them.

11 He also indicated that no document supporting the Claimant's purported ownership of the boats was presented to him and that he has properly retained possession of the boats as they do not belong to the Claimant.

12 The Defendant in his witness statement indicated that in October 2008 he received an order for seizure and sale in the matter of Cyril Ramdani v Desmond Duhorty and Levi Harrisingh. Further, that armed with information regarding the location of Mr. Harrisingh he went in search of him and after failing to find him at his home he found him at the Rocky Point beach. He said that Mr. Harrisingh showed him a boat with the name “SANDI” written on it and told him that the other boat “ROSE” was at sea and he then told Mr. Harrisingh about the money on the Order and he asked him to give him three days to make arrangements to pay his debts.

13 He asserted that since that time Mr. Harrisingh started to evade him and even moved the boats to Portland Cottage. However, he indicated that when he found the boats he advised Mr. Harrisingh that he was going to seize them but he marked them as it was difficult to move and store them at that time. Further, that Mr. Harrisingh even signed the Form 4704 to say he would not sell or cause any damage to come to the items seized. Subsequent to that time he indicated that Mr. Harrisingh continued to evade him and to hide the boats. He was informed that Mr. Harrisingh had repainted the boats and changed their names to BETH and RONA.

14 He stated further that it was on the 9 ^th of June 2010 that he located the boats in Rocky Point and seized them and took them to a location to be sold. He said that he did not see Mr. Baldwin however his workmen informed him that he had recently bought the boats from Mr. Harrisingh and that they were employed to work on the boats. He gave further evidence by way of amplification that he executed the “warrant of seizure and sale” by seizing two boats namely “ROSE” and “SANDY” and the Warrant of Levy was tendered into evidence as Exhibit 4. The Warrant of Levy bears the signature of a Levi Harrisingh who indicates that he agrees to keep the items listed in his possession and agrees not to sell or cause any damage to them until the matter is settled

15 During cross-examination the Defendant explained that the process of marking and the process of seizing are two distinct processes. He admitted that he saw Mr. Baldwin the day after he seized the boats. When it was suggested to him that Mr. Baldwin showed him the papers for the boat he denied this, however he admitted that Mr. Baldwin claimed he owned the boats. He was asked if he was familiar with the Interpleader process and he said he was, however he did not utilize this process.

16 He further told the Court that he made checks with the Fisheries Division to find out who was the owner of the boats and he was told that it was Mr. Harrisingh who was the primary owner. However, he could not say when it was that he...