Desmond Robinson and Another v Brenton Henry and Another

• Jurisdiction: Jamaica
• Judge: Dukharan JA,Panton P
• Judgment Date: 16 May 2014
• Neutral Citation: JM 2014 CA 87
• Docket Number: CIVIL APPEAL NO 168/2009
• Court: Court of Appeal (Jamaica)
• Date: 16 May 2014

Between

Desmond Robinson

1st Appellant

and

The Attorney-General of Jamaica

2nd Appellant

and

Brenton Henry

1st Respondent

and

Sarah (Butt) Henry

2nd Respondent

[2014] JMCA Civ 17

Before:

The Hon Mr Justice Panton P

The Hon Mr Justice Dukharan JA

The Hon Mr Justice Hibbert JA (Ag)

CIVIL APPEAL NO 168/2009

JAMAICA

IN THE COURT OF APPEAL SUPREME COURT

DETINUE - Motor car - Application for declaration that no further customs duty payable - Return of motor car - Damages in detinue and conversion in lieu of said car - Damages for inconvenience for seizure of car - Costs

Curtis Cochrane , Director of State Proceedings for the appellants

Garth E Lyttle instructed by Garth E Lyttle & Co for the respondents

Panton P

1 This appeal concerns the detention by the appellants of a car owned by the respondents. The detention was on the basis that the respondents had made false declarations, and thereby had ended up paying less than they should have paid in

customs duties and general consumption tax. The respondents were the ones who initiated action in the Supreme Court. They sought:

• a. a declaration that no further customs duty was payable to the Government of Jamaica;

• b. the return of the motor car;

• c. damages in detinue and or conversion in lieu of the said car;

• d. damages for inconvenience, hardship and embarrassment suffered as a consequence of the seizure of the motor car;

• e. interest on any sum the court thought fit; and

• f. costs.

They succeeded before Sarah Thompson-James J (Ag) as she then was. The appellants, however, have appealed that decision.

Summary of the facts

2 On 16 December 2004, the respondents imported into Jamaica a BMW motor car, which was in need of repairs. The customs department assessed duty at $1,188,158.37 which the respondents paid. The motor car was repaired and on 31 January 2006, on the instruction of the 1 ^st appellant, it was seized and has been in the possession of the state since then.

3 The appellants contended in their pleading and at the trial that there was a suspicion of fraud in the declarations that were made by the respondents. The appellants stated that the assessment and payment of $1,188,158.37 created a shortfall of $7,576,491.99 in the customs duty which ought to be paid. Consequently, they counterclaimed that amount.

The decision of the trial judge

4 Thompson-James J (Ag) having listened to the oral evidence and considered the documents presented, ordered as follows:

1

That no further Custom duties than the sum of $1,188,158.37 is payable. 2. The Claimants are entitled to the return of the motor vehicle. 3. The Defendants pay to the Claimants the sum of $1,520,000.00 at 6% interest from the 31 st January, 2006 to the 24 th November, 2009. 4. The Defendants' Counter-claim is dismissed. 5. Costs to the Claimants to be agreed or taxed.

The grounds of appeal

5 The appellants have challenged the decision on the following grounds:

• ‘a. The learned Judge erred by failing to apply sections 13 and 33 of the Constabulary Force Act to the evidence led in the case by finding the First Appellant liable for detinue.

• b. The learned Judge erred by misinterpreting section 31G of the Evidence Act and by extension, misapplied the said section to the evidence of Anthony Naylor and Gregory Dalton Brown and in the process unreasonably rejected their evidence.

• c. The Learned Judge erred by failing to correctly interpret and apply sections 6, 19(2), 19(8) and 28 of the Customs Act to the facts of the case.

• d. The learned Judge erred by deliberating on the misconception that there was contention that the relevant car, the subject of the claim, was new and similarly rejected the description of the motor car given by the Respondents, as imported and accepted the description of the motor car as given by the Appellants, as the motor car that was imported, but at the end of the day, unreasonably dismissed the Appellants'/Defendants' counterclaim.

• e. The learned Judge erred by awarding interest of 6% from the 31 ^st January 2006 to 24 ^th November 2009 on One Million and Ninety Three Thousand Three Hundred and Thirty Three Dollars ($1,093,333.00) (special damages).’

The evidence

6 The first respondent, a Jamaican, is an English barrister. He apparently maintains a strong connection with his Jamaican family. The second respondent is also a Jamaican. She is a teacher. They are husband and wife who live and work in England. They have not always lived together due to fear of a backlash from the fact that the wife is a Muslim whereas the husband is not. They purchased a BMW motor car from a dealer in used cars in England. The first respondent entered into a hire purchase agreement to facilitate the acquisition. The car, while being driven by someone else, was extensively damaged in an accident. The first respondent bought the salvage, minus the original engine, and exported it to Jamaica in the name of the second respondent. The original engine had been removed from the shell and dismantled due to fire damage from the accident.

7 The first respondent, in preparing to export the vehicle to Jamaica, purchased from the salvage company a used engine of 1995cc which was placed in the engine bay of the car but not in a working condition. The engine block of the original engine was placed in the car itself, along with other parts of the car. The intention was to repair the car in Jamaica, for use in Jamaica. The repairs were indeed carried out. It was after the repairs had been executed that the car was seized.

8 The first respondent employed a customs broker to deal with the clearance of the car through the customs upon importation into Jamaica. The car was shipped aboard the vessel ‘Pilgrim’ which reported at Kingston Wharves on 21 November 2004. A security supervisor examined the car on its arrival and noted its condition.

9 Several documents were admitted as exhibits during the evidence of the respondents. These documents include:

• a. an import entry C78 form;

• b. a form headed ‘German Salvage’;

• c. a pro forma invoice;

• d. a bill of lading;

• e. an order and clearance permit;

• f. a document headed BMW dated 9 September 2003; and

• g. a declaration of particulars – form C84.

There were other documents that were admitted into evidence – documents such as a vehicle registration document out of England certified by the Licensing Agency with the specifications of the car. All relevant documents indicate that the BMW motor car had a cubic capacity rating of 1995. This fact has become the bone of contention between the parties as the appellants are maintaining that the cubic capacity rating is incorrect, hence the need for more customs duties to be paid by the respondents.

10 Mr Anthony Naylor testified on behalf of the appellants. He said he was Area Fraud Manager employed to Black Horse Limited at the company's office in Cardiff, Wales. According to him, Black Horse Limited is the title owner of the vehicle in question, based on his determination that an amount is still owed by the first respondent on the hire purchase agreement. The first respondent has not missed any payments, however, he said. He confirmed that the statement of accounts on which he relied was prepared by someone else and he has no firsthand knowledge of the details of the transaction.

11 Mr Gregory Dalton-Brown, a mechanical engineer, said in his witness statement that he was employed to Sterling Motors Limited, Jamaica, as a sub-contractor for BMW Germany. He said that he has vast experience with all the motor vehicles manufactured by BMW. On 12 May 2006, at the request of the police, he inspected the BMW vehicle in question. On a physical examination of the car, he said it appeared to him to be in the same condition as manufactured without any alteration. I find this observation by the witness quite interesting in view of the fact that he had not seen the car at the time it was manufactured. By using a diagnostic machine and also checking on what he described as the PUMA system, he found that the car was manufactured on 21 November 2002, and was sold on 30 December 2002. It had a 3.2 litre engine. In his oral evidence, during examination-in-chief, Mr Dalton-Brown confirmed that the engine in the vehicle was a 3.2 litre engine. Under cross-examination, he said that the number of the engine as recorded in his witness statement is incorrect. Indeed, he said that he had not checked the engine block number. He noticed that there was dust in the headlights, and this was unusual for a BMW. He was asked several questions as regards the condition of the vehicle but in most cases he answered that he did not remember what he had observed.

12 The security officer, Ms Sidonne Foster, said that she conducted a detailed examination of the motor car on 21 November 2004 and recorded her observations on a document that was admitted in evidence at the trial as exhibit 8. She said that the vehicle ‘did not look like a brand new vehicle’. It appeared to her to be one that ‘had been used’. The recorded observations indicate quite clearly that there was no clock, no tape deck, no CD, no spare tyre, no tools set in the car. There is no notation as to seeing the fenders, bumpers or trunk keys; nor did she note the condition of the body. However, there are notations as to the presence of lights, windshield, windshield wipers, battery, horn, tyres on the car, mirrors, cigarette lighter, hood, trunk lid, doors, gas tank and gas tank cover, gear shift knobs, antenna and floor mats. In re-examination, Ms Foster said that the fact that she made no note does not mean that the part was not seen.

13 The first appellant, Mr Desmond Robinson, also gave evidence. He said he was regional director of special investigations at the Financial Investigations Division of the Ministry...