Matthew Tarawali v Caribbean Cement Company Ltd

• Jurisdiction: Jamaica
• Judge: Stephane Jackson-Haisley J.
• Judgment Date: 02 October 2023
• Court: Supreme Court (Jamaica)
• Year: 2023
• Docket Number: CLAIM NO. SU 2021 CD 00001

BETWEEN

Matthew Tarawali

Claimant

and

Caribbean Cement Company Limited

Defendant

[2023] JMCC COMM. 43

CLAIM NO. SU 2021 CD 00001

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE COMMERCIAL DIVISION

Whether the Claimant is entitled to payment of sums due and owing under the Defendant's Pension Scheme — Limitation of Actions Act — Whether Claim is statute — barred — Whether the Claimant is entitled to Damages for Fraud

Dr. Lloyd Barnett and Ms. Tavia Dunn instructed by Nunes, Scholefield, Deleon & Co. Attorneys-at-law for the Claimant

Mr. Charles Piper KC and Mr. Najeeb Spence instructed by Charles E. Piper & Associates Attorneys-at-law for the Defendant

IN OPEN COURT

Stephane Jackson-Haisley J.

INTRODUCTION

1 This is a claim by Matthew Tarawali (“Mr. Tarawali”), a Retired Engineer against Caribbean Cement Company Limited (“CCCL”) for a Declaration that he is eligible for and entitled to receive his pension benefits under CCCL's Life Assurance and Pension Scheme. Mr. Tarawali is also claiming an accounting of the sums due and payable under the scheme, an order that the sums be paid forthwith as well as damages for fraud.

2 Mr. Tarawali was employed to CCCL as an Operations Manager in charge of Jamaica Gypsum Quarries and the Ports during the period 1996 – 2002. He tendered his resignation on July 10, 2002, giving three (3) months' notice which took effect on October 10, 2002. He opted not to take his pension as it was his intention to have his contributions as well as that of CCCL remain vested in the same pension scheme until he retired.

3 Mr. Tarawali claimed that in 2018, when he sought to access his pension emoluments, he was informed by the Employer Benefits Administrator Limited, that its records showed that his portion of the contributions as well as that of CCCL had been paid over to CCCL for disbursement. He further asserted that, at no time did he request a refund or a pay out of CCCL's contributions to the scheme. Mr. Tarawali made checks with CCCL regarding the disbursement of his pension and was informed that the payments were made in accordance with instructions received in a memorandum dated November 20, 2002 under his signature which directed that his pension cheque be delivered to his wife.

4 Mr. Tarawali further claimed that CCCL and/or its servants and/or agents wrongfully and without instructions requested the refund of his pension contributions and with reckless carelessness, represented to him that he had been paid his pension contributions when he did not request pay out or authorize his wife to collect the pensions settlement cheque on his behalf. He contended that neither he nor his wife received his pensions pay out. He further contended that he remains entitled to receive his contributions and that of CCCL under the pension scheme.

5 CCCL denies that Mr. Tarawali is entitled to receive the pension benefits as they assert that those payments were already disbursed to him. In its Defence filed on March 16, 2021, CCCL stated that by Memorandum dated November 20, 2002 addressed to its Human Resources Manager, Mr. Tarawali directed and authorized the payment of his pension settlement cheque to his wife Mrs. Carole A Tarawali on his behalf and in accordance with those instructions, cheque numbered 058400 dated November 20, 2002 in the sum of Two Million, Nine Hundred and Fifty-Seven Thousand, Nine Hundred and Forty-Eight Dollars and Twenty-Nine Cents ($2,957,948.29) was delivered to, collected and received by Mrs. Tarawali on his behalf.

6 CCCL further denies that any of its servants or agents, falsely, fraudulently or with reckless carelessness, knowingly or with knowledge represented to Mr. Tarawali that his pension refund had been paid. It is also being averred that the claim is statute-barred by operation of the Limitation of Actions Act.

THE CLAIMANT'S CASE

Evidence of Matthew Tarawali

7 Mr. Tarawali gave evidence that after he resigned from CCCL in 2002, he continued working until September 2018. He stated that he did not request his pensions because it was his intention to have it remain until his retirement. He averred that at no point during the notice period or his resignation or after departure from CCCL was he contacted or advised that a reimbursement of his pension contributions was being prepared and that a cheque would be made in his name.

8 Mr. Tarawali stated that in October 2018, he made contact with several personnel of CCCL including the former Human Resource Manager, Mr. Dalmain Small by letters and email from 2019 up to 2020 however, all correspondence presented to him purported that his pension contributions had been refunded and paid to him. He stated that a copy of the internal memorandum purported to have been executed by him as well as a copy of the Life Assurance and Pension Scheme in Conjunction with Life of Jamaica Limited written in his name were presented to him. Mr Tarawali stated that at the time the internal memorandum was written he had already left CCCL therefore, he would not be using a memorandum to communicate with the company.

9 Mr. Tarawali contended that at no time did he ever write his wife's name as Carole and he did not write the November 20, 2002 memorandum authorizing CCCL to deliver any cheque to his wife. However, during cross examination when Mr. Tarawali was questioned about a letter dated February 7, 1999 where he wrote his wife's name as Carole, he stated that at that time, it was a mistake. He stated further that at no time during his employment at CCCL did his wife attend the company to transact business and to his knowledge at no time after he left, did she attend that office to transact any business. He contended that after being informed that the cheque was made out in his name, he went to National Commercial Bank and requested a printout of the joint account with his wife for the period December 31, 2001 to December 18, 2002 and there was no indication of a cheque being lodged for the sum stated.

Evidence of Carol Ann Tarawali

10 In her evidence, Mrs. Carol Ann Tarawali stated that during the time her husband worked at CCCL, she did not visit that office nor Jamaica Gypsum Quarries to transact any business. She also stated that after her husband left CCCL she did not visit that location as she had no reason to transact any business. She further indicated that she did not receive the memorandum dated November 20, 2002 from her husband or any letter authorizing her to collect his pension cheque on his behalf and she did not attend CCCL.

11 Mrs. Tarawali further stated that she did not sign the Life Assurance and Pension Scheme in conjunction with Life of Jamaica Limited document dated November 19, 2002. In cross examination, she admitted that the signature looks like hers. Mrs. Tarawali also stated during cross examination that she is not aware how a copy of her passport got on CCCL's file but presumed that her husband would have had to do so himself.

Expert Report of Zadia-Kay Smith

12 Expert evidence on behalf of the Claimant was given by Ms. Zadia-Kay Smith, a Certified Questioned Document Examiner and Handwriting Expert. In her expert report dated April 6, 2023 she stated that in her professional opinion, based upon examination conducted, the signature presented on the Memorandum dated November 20, 2002 does not appear to be written by Mr. Tarawali. The comparison was made using signatures on the resignation letter, a Release and Discharge as well as the Claim Form dated January 7, 2021. Ms. Smith made the following observation:

• a. The upper mid-sections in the known signature are all connected by garlands compared to that in the questioned signature which is angular;

• b. The known signatures appear to be written more fluent whilst the questioned signature was written slower;

• c. The method of construction of both the known and questioned signatures are thready. The “r” is pronounced in the known signatures compared to the questioned signatures which resembles the letter “M”.

13 As it relates to the signature for Mrs. Tarawali, Ms. Smith found that the signature on the Life Assurance and Pension Scheme in Conjunction with Life of Jamaica Limited allegedly made by Mrs. Tarawali was different from the signature on her passports and her driver's licence. In her observation, she concluded that:

• a. the letter “C” begins with an eyelet in the known signatures compared to a hook in the questioned signature;

• b. The letter “T” is independent with a narrow loop at the top which slants to the right in the known signatures compared to a wide loop in the questioned signatures and resembles an incomplete figure “8”

• c. The spacing between the letters in the known signatures is narrow compared to the questioned signature which is wider.

14 Ms. Smith indicated that the documents examined by her were all photocopies and that from her short observation of the original in Court it did not alter her opinion at the moment. In cross-examination, when the original signatures were presented to her, she indicated that the time would be too short to determine whether seeing the original would affect her opinion. She further indicated that all her examinations are done in the questioned documents laboratory and that the time in court was too limited to perform an examination. When asked what different thing she would do if she had the original, she responded that she would have come to a more conclusive opinion. She further stated that based on the laws of handwriting, no person writes the same when repeating handwriting. Ms. Smith was careful to state that each person has a range of handwriting which he or she cannot surpass. She further discussed the factors that affect the range of handwritings to include a master pattern and admitted that it is possible that a photocopy could give wrong readings.

THE DEFENDANT'S CASE

Evidence of Mr. Dalmain Small

15 The...