David Cousins v Monica Davis

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Edwards, J.A.,Simmons, J.A.,Laing, J.A.
• Judgment Date: 27 March 2026
• Neutral Citation: JM 2026 CA 24
• Year: 2026
• Docket Number: Suit No.: COA2025PCCV00002

David Cousins

and

Monica Davis

JM 2026 CA 24

Edwards, J.A.

Suit No.: COA2025PCCV00002

Court of Appeal

Appearances:

Appellant in person.

Respondent did not appear and was not represented.

Edwards, J.A.

1 I have read the draft judgment of my brother Laing, J.A., and I agree with his reasoning and conclusion.

Simmons, J.A.

2 I, too, have read the draft judgment of my brother Laing, J.A.. I agree with his conclusion and have nothing to add.

Laing, J.A.

3 By a notice of appeal filed on 30 May 2024, the appellant appeals against the decision of Her Honour Ms. Khian Lamey, a judge of the Parish Court, for the parish of Saint Catherine (‘the learned judge’), made on 16 September 2022, whereby the learned judge ordered as follows:

“Judgment for the Defendant/CounterPlaintiff in the sum of $11,540.00 (being the value of the drill) plus costs of $2,016.00.”

THE PROCEEDINGS IN THE PARISH COURT

4 On 15 November 2021, the appellant commenced legal proceedings against the respondent by filing a plaint note for breach of contract, claiming damages in the sum of $41,498.85 — comprising $11,498.85 for the cost of a drill and $30,000.00 for loss of use. In his particulars of claim, the appellant asserted that on 3 November 2021, he lent his Black and Decker Amplifier Drill (‘drill’) to the respondent, which was supposed to be returned by 7 November 2021. However, when the appellant visited the respondent's address to retrieve his property, she refused to give it back. He claimed that she said that she had lent a similar drill to Mr. Lincoln Thompson, the appellant's work partner, who did not return it, and therefore she was withholding the appellant's tools to replace her own, which had not been returned.

5 The respondent filed a counterclaim on 10 January 2022, alleging breach of contract, detinue, and conversion. In her particulars of claim, she asserted that on 28 July 2021, she lent the appellant a “SKIL [sic] drill”, which was to be returned at the end of the appellant's work. The appellant did not return the drill but left a drill in the yard that was not hers. As of the time of filing, the appellant had still not returned her drill.

THE TRIAL

6 It was common ground between the parties that the appellant and another worker named Lincoln Thompson (‘Mr. Thompson’), also referred to as “Rasta”, were hired by the respondent to do various tasks at her home.

7 In his testimony, the appellant stated that issues concerning the respondent's payment of money led him to cease working for her, but Mr. Thompson continued working for her. Prior to this, the appellant asserted that the respondent called his phone on several occasions requesting to borrow his drill. On 3 November 2021, he took the drill and loaned it to her. He said they had agreed that he should return on 7 November 2021 to retrieve it, but on that day, when he went to the respondent's house to do so, she was “hostile argumentative and disrespectful”. He further asserted that by withholding the drill, she deprived him of its use, resulting in a loss of income, as the drill was a tool he used daily and sometimes rented out. Consequently, he contended he was faced with no choice but to bring proceedings against the respondent.

8 The appellant stated that he served a notice of intention on the respondent along with the summons and other documents. He also produced a pro forma invoice he received from Courts Unicomer Jamaica Limited, bearing his name, for a Black & Decker Amplifier Drill at a cost of $11,498.85. The pro forma invoice was tendered and admitted into evidence, marked Exhibit 1.

9 In cross-examination, the respondent suggested to the appellant that he was not telling the truth, but the appellant denied it. She further suggested to him that he borrowed her drill because he had broken the foot of her basin and needed to “hustle to buy back the basin foot”. The appellant denied the suggestion, saying it was not true because he had his own drill and there was no need to borrow hers.

10 Mr. Thompson gave evidence that he worked with the appellant at the respondent's home. He asserted that they were to install a “toilet” for the respondent, but they did not have a drill to fully screw it down. They subsequently installed it correctly, but not the sink, because that fell and broke. In cross-examination, he stated that the drill that he saw the appellant use to drill the holes in the wall to put up the brackets to support the face basin was the same drill the appellant used on various construction sites.

11 In response to questions from the learned judge, he stated that the respondent did not lend him a drill and that the appellant had a drill, but he did not remember its exact colour or name. He admitted that he did not see the appellant lend the respondent the drill.

12 In her evidence, the respondent admitted that the appellant's drill came into her possession because the appellant left it at her house. She stated that, on 28 July 2021, Mr. Thompson returned to her home with the appellant to complete outstanding work. The respondent testified that the appellant informed her that Mr. Thompson had called him into the bathroom where Mr. Thompson was working, and that when the appellant pushed the locked door, it “brushed against” the foot of the basin, which was behind the door, causing it to break. The respondent told the appellant that he was required to replace the damaged “basin foot”, and he promised to do so by the weekend. The respondent stated that the appellant then borrowed her drill and replaced the “basin foot” on 28 August 2021, but did not return the drill.

13 On 3 November 2021, following her 31 October 2021 request for the return of her drill, the appellant visited her home. However, she was occupied cooking at the time, and by the time she returned to where she had left the appellant, he was gone, and a drill was found in an old settee on the outside. Upon closer inspection of the drill, she discovered that it was not her drill and believed that it had been swapped. She stated that she made numerous attempts to contact the appellant to have her drill returned in exchange for the drill left in her possession, but these efforts were unsuccessful.

14 In cross-examination, when it was suggested that she had the drill in her possession for approximately 10 months, she acknowledged this, stating that she had had possession since 3 November 2021. She also stated that there was no agreement in respect of the time for the return of the appellant's drill, and accordingly, there could be no breach of any contract on her part. She denied that the appellant attended her home and sought to retrieve the drill on 7 November 2021. Instead, she asserted that he went directly to the police station. She further stated that when contacted by a female police constable from the station on 3 November 2021 (which I understand to be a reference to 7 November 2021) regarding the drill, she informed the constable that she had the drill but instructed the appellant to bring her drill and collect the one left in her possession.

15 The respondent denied that she withheld the drill from the appellant or deprived him of any earnings.

THE APPEAL

16 The appellant filed six grounds of appeal, which are:

• “(A) The trial judge had error [sic] in law and in fact because the court lacks jurisdiction over the subject matter by allowing and accepting the respondent's counter-claim to proceed.

• (B) The Trial judge had error [sic] in law and fact by committed judicial misconduct and vindictiveness by tampering and altering summon [sic] expired date for it to appear lawful and active.

• (C) The Trial judge had error [sic] in law and in fact by failure to instruct or properly instruct both parties concerning the law and other legal procedure concerning the filing of ‘Notice of intent to produce evidence at trial.

• (D) The learned judge had error [sic] in law and in fact by wrongfully exercised [sic] her discretion by refusing to admit appellant's relevant material evidence (exhibit (D) at trial without meaningful justification.

• (E) The Trial judge had error [sic] in law and fact by allowing, condoning and supporting the continuation of unlawful detention of the appellant's property by the respondent.

• (F) The Trial judge had error [sic] in law and in fact by rendering a decision while being in confused state of mind which prejudice the appellant to fair and impartial trial.”

SUBMISSIONS ON BEHALF OF THE APPELLANT

17 In relation to grounds (C) and (D), the essence of the appellant's complaint was that the learned judge failed to properly instruct the parties, who were unrepresented litigants, on the requirement to file a “Notice of Intention to Produce Evidence” prior to the trial date in order for the evidence they intend to rely on to be admitted. He submitted that, had adequate guidance been provided, he would have taken the necessary steps to ensure the admission of the phone recording of a conversation between the appellant and the respondent on 7 November 2021.

18 The appellant further contended that the learned judge erred in refusing to admit the phone recording into evidence on procedural grounds. He contended that the phone recording was relevant and material to the issues in dispute, and its exclusion deprived the court of evidence capable of materially assisting the learned judge in her determination of the matter. He argued that, had the phone recording been admitted, it would have influenced the outcome of the trial as it would have revealed that the respondent was not honest, when she said that the appellant did not visit her home on 7 November 2021 to retrieve the drill.

19 In respect of ground (E), the appellant submitted that the learned judge erred by allowing the respondent to keep, carry away and detain his drill, notwithstanding the evidence before the court and the respondent's admission that the...