Morris Milton Barnett v Omar Tymore Guyah

• Jurisdiction: Jamaica
• Judge: Evan Brown J
• Judgment Date: 18 June 2021
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2014 HCV 03834

[2021] JMSC Civ 113

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2014 HCV 03834

Between

Morris Milton Barnett

Claimant

and

Omar Tymore Guyah

Defendant

Ms Regina M. Wong instructed by Grant, Stewart, Phillips & Co for the claimant.

Capt. Paul Beswick and Ms Aisha Thomas instructed by Ballantyne, Beswick & Co for the defendant.

Fraudulent misrepresentation — Representation that defendant was a lawyer — concealment of the nature of document for execution. Counterclaim for malicious prosecution of civil proceedings — False imprisonment — Unlawful search — Defamation — Psychological distress.

Evan Brown J

INTRODUCTION AND BACKGROUND

1 Morris Milton Barnett (‘Morris Barnett’), the claimant, then a Corporal in the Jamaica Defence Force (JDF), is the brother of Joan Maxine Barnett (‘Miss Barnett’), now deceased. The defendant, Omar Guyah, Director of Customs at the Jamaica Customs Department, was Miss Barnett's partner. The lives of the claimant and defendant intersected consequent upon the death of Miss Barnett. Miss Barnett died in hospital in the United States of America on 10 October 2013, after a battle with cancer. In the wake of her death, the defendant caused the claimant to sign a power of attorney, naming the defendant the claimant's attorney.

2 The power of attorney allowed the defendant to access proceeds of a policy of insurance issued by Sagicor Jamaica Limited (Sagicor). The claimant was one of several beneficiaries under this insurance policy. None of the proceeds obtained was turned over to Morris Barnett. That failure and the circumstances under which Morris Barnett came to sign the power of attorney, set in train a series of events which ultimately led to the filing of this claim and the counterclaim.

3 The following is the substance of the claim. On 12 October 2013, Mrs Lisa Barnett, the claimant's and deceased's sister-in-law, telephoned the claimant, informing him that the defendant wished to speak with him and provided him with a telephone number for the defendant. The claimant dialled the number provided and the defendant answered, identifying himself by his christian and surnames. In this telephone conversation, the defendant is alleged to have identified himself to the claimant as a lawyer. The defendant disclosed that the claimant was required to sign documents relevant to Miss Barnett's medical bills. The defence accepts that medical bills were mentioned but adds that funeral expenses were also mentioned. The parties agreed to meet the following day at Up Park Camp, the claimant's place of work.

4 They met, as agreed. Mrs Lisa Barnett was present. The meeting took place in the defendant's car. Both men sat in the front and Mrs Lisa Barnett sat on the back seat. The defendant informed the claimant that he, along with Mr Flash, Miss Barnett's friend, would have to sign documents to pay Miss Barnett's medical bills. He was presented with a document, which he signed on each page. He also handed over his driver's licence to the defendant for the purpose of taking a photocopy of it. The defendant and Mrs Lisa Barnett left with the defendant's driver's licence for that purpose. Both the defendant and Mrs Lisa Barnett returned shortly after and the claimant's driver's licence was returned to him.

5 That would have been the conclusion of the matter between the parties, but for the claimant being contacted by an officer from the Organized Crime Investigation Division (OCID) on or about 14 November 2013. That led to the claimant going into the office of OCID. There questions were raised about the document the defendant presented to him to sign at Up Park Camp. He told OCID officers that he did not know what a power of attorney was and that he had signed the document in reliance on representations made by the defendant. Neither was he aware that he was a beneficiary under the insurance policy, to the tune of $882,332.48. The claimant gave a statement at OCID to that effect.

6 Some days after the claimant's visit to OCID, the defendant went to Sagicor to make enquiries about funds disbursement for another beneficiary. When the defendant left Sagicor's offices he was arrested by members of OCID. He was taken into custody for questioning for fraud. Later that day the defendant took part in a question and answer session, in the presence of his Attorney-at-Law, Mrs Carolyn Reid Cameron.

7 Following the question and answer session, the defendant was escorted to his home by the police. The police conducted a search of his home in his presence. The police seized several documents during the search. No charges were laid against the defendant.

The claim

8 It was against that background that the claimant filed his claim and particulars of claim on 8 August 2014. He claims damages for fraudulent misrepresentation made by the defendant between 13 and 14 October 2013. Additionally, he claimed, together with collateral claims, repayment of the sum of $882,332.48. The allegations of fraudulent misrepresentation were particularized in his statement of case.

9 In sum, the claimant alleged the fraudulent misrepresentations. Firstly, the defendant misrepresented himself as a lawyer. Secondly, the defendant failed to disclose that the claimant was a named beneficiary under Sagicor policy number 002343885 on the life of Joan Barnett. Thirdly, the defendant did not disclose that the document he was signing was a power of attorney but instead led him to believe the document was for the purpose of paying medical bills.

10 The foregoing particulars are comprehensively captured in paragraph 17 of the particulars of claim. I quote:

“At all material times it was known to the Defendant (sic) but not to the Claimant (sic) that the document which was presented to the Claimant (sic) for the Claimant's (sic) signature on Monday 14 October 2013 was a Power of Attorney bearing date 14 October 2013. Although the Claimant (sic) signed all pages of he said document he did not read it because he was acting in reliance on and was induced by the repeated false representations that the Defendant (sic) was a lawyer and that the document existed to pay his deceased sister's medical bills”.

11 The defendant denied identifying himself to the claimant as a lawyer. He disputed the assertion that the claimant never read the document. On the contrary, the claimant spent some time going through the document and called and spoke with his mother during that exercise. He told the claimant that the document was a power of attorney which was drafted by Miss Barnett. He also told the claimant that he had to sign the document to facilitate obtaining monies from her life insurance policy to settle her funeral and medical expenses. The defendant asserted that all the money he obtained was used solely for Miss Barnett's funeral expenses.

The counterclaim

12 The defendant went beyond denying the claim. He filed an Amended Defence and Counterclaim on 15 May 2017. I recite the counterclaim below:

I will discuss the claim before considering the counterclaim since they raise discreet issues, although both have the same factual genesis.

• a. Damages for malicious prosecution of civil proceedings;

• b. Damages for false imprisonment by the Police (sic) for over 9 hours by virtue of the Claimant making a malicious report;

• c. Damages for defamation, and damage to the character and integrity of the Defendant, by virtue of the Claimant filing the instant Suit (sic) and alleging gross misconduct by the Defendant who is a Senior Public Officer;

• d. Damages for the search of the Defendant's home by the police in the presence of his family;

• e. Aggravated damages on the footing that the Claimant deliberately and/or wilfully and/or spitefully and/or maliciously filed the instant suit against the Defendant knowing that there was no truth to the Particulars of Claim and that there was no cause of action;

• f. Damages for mental and psychological distress, anguish, emotional trauma and suffering, caused by making a false report to the police, the false imprisonment, and the filing of the instant suit by the Claimant;

• g. General damages;

• h. Costs and Attorney-at-Law costs;

• i. Such further and/or other reliefs as this Honourable Court deems fit.

Issues for determination on the claim

13 As both sides submitted, in a broad sweep, the issue for determination on the claim is whether the defendant is liable to the claimant for fraudulent misrepresentation. To put the matter squarely, did the defendant represent himself to the claimant as a lawyer?

Discussion and analysis

14 A useful definition of this tort is to be found in Clerk & Lindsell on Tort 19 ^th edition, at para 18–01:

“Where a defendant makes a false representation, knowing it to be untrue, or being reckless as whether it is true, and intends that the claimant should act in reliance on it, then in so far as the latter does so and suffers loss the defendant is liable for that loss”.

Winfield & Jolowicz on Tort 18 ^th edition, at para 11 -3 summarises the ingredients of the tort, the equivalent of the common law tort of deceit, as follows:

• 1. There must be a representation of fact made by words or conduct.

• 2. The representation must be made with knowledge that it is or may be false. It must be wilfully false, or at least made in the absence of any genuine belief that it is true.

• 3. The representation must be made with the intention that it should to be acted upon by the claimant, or by a class of persons which includes the claimant, in the manner which resulted in the damage to him.

• 4. It must be proved that the claimant has acted upon the false statement.

• 5. It must be proved that the claimant suffered damage by so doing.

15 The above statement of the law comports with the law as cited by the Attorneys — at-law for both sides. Both sides relied on the first instance decision of Phyllis...