Kirk Lofters v Attorney General and Another

JurisdictionJamaica
CourtSupreme Court (Jamaica)
JudgeAnderson, K., J.,Hon. K. Anderson, J.
Judgment Date20 December 2012
Neutral Citation[2012] JMSC Civ 189
Date20 December 2012
Docket NumberCLAIM NO. 2006 HCV 01625

[2012] JMSC Civ 189

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2006 HCV 01625

Between
Kirk Lofters
Claimant
and
Attorney General
1st Defendant

and

Deputy Superintendent Cleon March
2nd Defendant

Trespass to goods — Detinue — Measure of Damages for trespass to goods — Power of Search and seizure — Absence of reasonable or probable cause — Need to particularize Malice

Anderson, K., J.
1

This matter relates to a situation in which, on the 26 th day of September 2003, the Claimant's motor vehicle, which is a 1992 Bluebird Sedan motor car, was seized by the police, allegedly for the purposes of safekeeping and without a warrant, in circumstances wherein that vehicle was then located/situated on private property and the owner of the vehicle, being the Claimant was, at that time, nowhere to be found. The Defendants have contended that at the material time, the Second Defendant had formed the view, based on information which he had received, that the relevant vehicle may have been stolen as gunmen were seen on the premises where the vehicle was then situated. Those gunmen had allegedly hastily left that scene when the police arrived there. The owners of the home on said premises were away from that home at that time and it was believed by the Second Defendant that those owners were then, abroad.

2

Based on all the information received by the Second Defendant, he formed the view that that car had never been seen at that premises, prior to that date — 26 th September 2003.

3

The Claimant has contended that the said vehicle's engine had broken down while he had been driving it on that day and he had therefore left the vehicle there. No evidence was given as to whether there was any particular reason as to why the Claimant chose to leave his vehicle at that particular location at the material time.

4

All of the aforementioned constitutes undisputed evidence and arising from this Court's view that the same is credible, the Court accepts the same as being truthful. This Court also accepts as being truthful, the evidence as given to this Court by the Second Defendant, that he had directed officers then under his command, to remove the vehicle from said premises and detain the same for safekeeping, until the owner thereof, contacted him. The Second Defendant was unable to verify whether the car was stolen. According to his evidence, at the time when that vehicle was, as he in oral evidence given to this Court testified, “detained —for safekeeping purposes”, as distinct from “seized”— the latter having been a phrase which had been used by him when he had signed to his Defence, certifying the truth thereof, this prior to such wording having been amended pursuant to an Order made very close to the end of the trial of this Claim, the Police Control's computer system was down and so it could not then be verified whether the car was stolen or not.

5

Thus, the said vehicle was then, “detained for safekeeping purposes” and this was done on the instructions of the Second Defendant, acting at the material time as the servant or agent of the Government of Jamaica, whose legal representative is the First Defendant and that was done, as aforementioned, without there being at any time, any search warrant or Court Order authorizing same.

6

There is no doubt in this Court's mind, that the police in Jamaica, have no power under any statute, or at common law, to detain private property found on private premises, for safekeeping purposes. If there had existed reasonable grounds to believe, at the material time, that said vehicle was stolen, then a search warrant for same ought to have been obtained. If such had been done, then by virtue thereof, upon the execution of same, the vehicle could have been seized. In the absence of the existence of same, such detention for safekeeping, although perhaps morally justified, was legally unjustified and unjustifiable, since it cannot be forgotten, that the right of a person to freedom from unlawful search and seizure is an important aspect of a person's right to property and also, right to privacy. These are constitutional rights which have existed in Jamaica ever since 1962 and are rights which have existed at common law, even before then. If such rights are to be interfered with, then it is a Court or judicial officer that must authorize such interference and the precise extent thereof. This is the reason why a search warrant would be necessary, in the absence of a Court Order.

7

In the circumstances, the Claimant has brought Claim against the Defendants for trespass to property. In his amended Particulars of Claim and also in his Claim form, it has never been alleged that at the time when said vehicle was taken away from the private premises for the purposes of safe-keeping, the Second Defendant was acting on his own behalf. As aforementioned, it is alleged that at the material time, he was acting as servant or agent of the Crown. In the circumstances, this Court must come to the conclusion and does so come, that the Second Defendant ought never to have been made a Defendant to this Claim, since if liability does exist, that liability must lie only on the shoulders — the very broad shoulders, of the First Defendant — being the legal representative of the Crown. As such, the Second Defendant is awarded Judgment in his favour, on the Claim.

8

The fact that this Court has concluded that the Second Defendant, as a Crown servant or agent, acted unlawfully in having detained for safe-keeping purposes, as, when and how he did so, through other police officers then acting on his direction to them, can by no means, automatically result in a Judgment being rendered in the Claimant's favour, on the Claim for trespass to goods, as against the First Defendant.

9

Trespass to goods is a tort that has long existed at common law, to provide compensation to persons, the possession of whose chattel has been directly interfered with. Trespass to goods is actionable per se , or in other words, without proof of any actual damage to the chattel. See paragraph 22 — 02 of the text —Clerk and Lindsell on Torts , 16 th ed. [1989]. There is no doubt that in this particular case now at hand, the First Defendant has committed that which is recognized at common law, as constituting a trespass upon the Claimant's goods, being for the purposes of this Claim, a 1992 Bluebird Sedan motor car, which the Claimant had, as the admitted owner thereof, a right to the possession of. The unlawful detention of same, whether for safe-keeping or for any other purpose, amounts to a trespass to goods. The position would have being different if it had been the case, that the car belonged to a person who was, as of 26 th September 2003, deceased and the same was then detained for safe-keeping by the executor of his estate. See Kirk, Executor v Gregory and wife [1876] 1Ex. D. 55. That however, is not, by any means, resembling in any respect, the particular facts of this particular case now at hand.

10

Even so however, the Claimant is still not, without more, entitled to Judgment against the First Defendant on his Claim for trespass to goods. This is because, by virtue of the provisions of Section 33 of the Constabulary Force Act, the Claimant must also establish that the relevant tort-trespass to goods was committed by...

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3 cases
  • Omar Guyah v Commissioner of Customs and Others
    • Jamaica
    • Court of Appeal (Jamaica)
    • 13 Marzo 2015
    ...Limited [2003] UKPC 86; Alton Brown v The Attorney General and Others [2013] JMSC Civ 106; Kirk Lofters v Attorney General and Anor [2012] JMSC Civ 189; Financial Services Authority v John Edward Rourke [2001] EWHC 704; The Financial Services Authority v John Cecil Anderson and Others [2010......
  • Amy Bogle v Transport Authority
    • Jamaica
    • Supreme Court (Jamaica)
    • 9 Octubre 2015
    ...Jamaica and Constable Clive Nicholson [2013] JMSC Civ. 151 and Kirk Lofters and Attorney General and Deputy Superintendent Cleon March [2012] JMSC Civ. 189. 7 Even if the claimant succeeds in proving her claim for relief based on either the tort of detinue or conversion, she would not be en......
  • Carol Campbell v Transport Authority of Jamaica
    • Jamaica
    • Supreme Court (Jamaica)
    • 15 Septiembre 2016
    ...the absence of reasonable or probable cause. The case of Kirk Lofters v The Attorney General ant the Deputy Superintendent Cleon March [2012] JMSC Civ 189 was relied on in support of the point that malice must be particularized if it is being relied on. While I agree with the reasoning of m......

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