Jamaica Redevelopment Foundation Inc. v Premium Investments Ltd
| Jurisdiction | Jamaica |
| Judge | Morrison, J.A.,Hibbert, J.A.,Dukharan, J.A. |
| Judgment Date | 08 July 2011 |
| Neutral Citation | JM 2011 CA 69 |
| Docket Number | Civil Appeal No. 13 of 2011 |
| Court | Court of Appeal (Jamaica) |
| Date | 08 July 2011 |
Court of Appeal
Morrison, J.A.; Dukharan, J.A.; Hibbert, J.A. (Ag.)
Civil Appeal No. 13 of 2011
Charles Piper and Miss Marsha Locke for the appellant.
Abraham Dabdoub and Paul Beswick instructed by Raymond Clough of Clough Long and Co for the respondent.
Civil practice and procedure - Use of affidavit evidence in civil proceedings under CPR, part 3D.
I have read in draft the judgment of my brother Hibbert, J.A. (Ag.). I agree with his reasoning and conclusions and have nothing further to add.
I agree with the reasoning and conclusion of Hibbert, J.A. (Ag.).
Hibbert, J.A. (Ag.): the financial crisis of the 1990s and the subsequent acquisition of debt portfolios triggered many suits in our courts. One such suit was brought by Premium Investments Limited (in liquidation), hereinafter called Premium Investments, against Jamaica Redevelopment Foundation Inc. (J.R.F.). This suit was brought by way of a fixed date claim form, filed on 13 September 2007 and supported by an affidavit of Douglas Chambers, the then liquidator of Premium Investments. In that claim the following orders were sought:
“1. That the defendant do give to the claimant a full account of all monies alleged by the defendant to be owing by the claimant to the defendant such account(s) to commence from the 1st day of December 1993 up to the present time.
2. That such account(s) be given by the defendant to the claimant in respect of each and every loan or advance made to the claimant in respect of which the defendant alleges that the claimant is indebted to it including the following particulars:
(a) The date on which each and every loan or advance was made to the claimant, the amount of the principal of each and every such loan or advance, the rate per centum per annum of interest charged in respect of each and every such loan or advance;
(b) The amount of each and every payment already paid by the claimant and/or anyone else on behalf of the claimant in respect of each and every such loan and the date on which each such payment was made and the manner in which each and every such payment was appropriated or applied.
(c) The amount of each and every sum claimed to be due to the defendant by the claimant but unpaid, the date upon which it became due, and the amount of interest due and unpaid in respect of every such sum.
(d) The amount of every such sum not yet due which remains outstanding, and the date on which it will become due;
(e) The manner in which interest is computed (simple or compound) in respect of each and every such loan or advance and the rests [sic] at which it is applied or computed.
3. An injunction to restrain the defendant whether by itself or by its directors, officers, servants or agents or otherwise howsoever from dealing with or disposing of the lands owned by the claimant comprised in Certificates- of Title registered at Volume 1127, Folio 995, Volume 1206 Folio 261 and Volume 1218 Folio 285 of the Register [sic] of Titles (which are subject to a Registered Mortgage which the defendant claims to own) until the final determination of this action.
4. Costs.
5. Such other relief as this court deems just.”
A further affidavit of Douglas Chambers was filed on 17 September 2007. In response to the affidavits of Douglas Chambers, an affidavit of Miss Janet Farrow, the then chief executive officer of the Jamaican branch of J.R.F., was filed on 28 September 2007. A supplemental affidavit of Miss Farrow was filed on 16 November 2007.
On 7 August 2008, Sykes, J. delivered his judgment after hearing, in chambers, an application for summary judgment made on behalf of Premium Investments, and applications made on behalf of J.R.F. to discharge an injunction and for an extension of time for filing the defence to the date of the filing of Miss Farrow's affidavit of 2B September 2007. Among the orders made by Sykes, J. was:
“4. The Affidavits of Janet Farrow filed on September 28, 2007 and November 18, 2007 is [sic] to stand as the defence.”
Douglas Chambers died tragically on 21 June 2008 and on 22 July 2008 Miss Sophia Beckford was appointed the liquidator of Premium Investments. In furtherance of the claim filed by Premium Investments, two affidavits, sworn to by her, were filed on 26 and 28 October 2010.
The case came up for trial in chambers before Jones, J. on 2 November 2010 and, in granting a further adjournment to 25 January 2011, he ordered that “Janet Farrow and Sophia Beckford should be present for cross-examination”.
On 11 January 2011, by notice of application for court orders, J.R.F. sought a variation of Jones J's order of 2 November 2010, to permit Joseph Gibson IV, J.R.F's president, to be substituted in place of Miss Farrow as the witness for J.R.F. for the purposes of cross-examination. This application was supported by an affidavit of Mr. Gibson which was sworn to and filed on that same day. The orders sought and the grounds submitted were as follows:
“1. Joseph W. Gibson IV be substituted as the witness for the defendant in place of Janet Farrow;
2. The Order of the Honourable Mr. Justice Jones dated November 2, 2010 requiring Ms. Janet Farrow to be present for cross examination be varied to allow Joseph W. Gibson IV to be cross examined at the trial in substitution for Ms. Janet Farrow;
3. The time for service of this application be abridged; and
4. There be such further or other relief as to the court may seem just.
The grounds on which the defendant/applicant seeks the order are as follows:
“a) Ms. Janet Farrow is no longer employed to the defendant, she has left the jurisdiction and the defendant has not been able to make contact with her.
b) It is believed that Ms Farrow is unaware of the Order that she attend for cross examination.
c) The claimant will not be prejudiced by an order that Mr. Joseph Gibson IV, President of the defendant be cross examined on the contents of Ms. Farrow's Affidavits.
d) The defendant will be prejudiced if the order being sought is refused.
e) The overriding objective of the Rules favours the grant of the application as opposed to its refusal.”
The application was heard by King, J. who refused it. No written judgment was produced by King, J. but the following extract from his notes, which was provided to the court, is of assistance in the determination of whether or not King, J. exercised his discretion correctly. It states:
“He explained that Ms. Farrow resigned as CEO of the defendant with effect from the 29th October 2010, and that since she left the island on that date, neither the defendant nor its Attorney has been able to contact her. No information is supplied as to what efforts have been made to contact her.
Rule 30.1 of the Civil Procedure Rules ( CPR) 2002 in dealing with affidavits, provides that where a deponent does not attend to be cross-examined when ordered by a court to do so, the affidavit of that deponent may not be used as evidence unless the court permits. This provision is, no doubt, the reason for this application.
I have carefully considered the submissions of Counsel for each side. It is noted that no application was filed seeking to adduce the affidavits of Ms. Farrow as hearsay evidence by virtue of the provisions of section 31E of the Evidence Act. Much of the contents of these affidavits were exhibits comprising computer generated documents and/or conclusions drawn from such documents.
Since those documents have not been made admissible under the provision of section 31(G) of the Evidence Act, neither the documents nor any conclusions drawn from them would be admissible.
Mr. Gibson ended his affidavit by saying that he is not seeking to add to, vary or contradict any of the facts set out in Ms. Farrow [sic] affidavit. In effect the defendant seeks to meet the provisions of section 30.1(5) by having Mr. Gibson put in the evidence [sic] Ms....
To continue reading
Request your trial