Omar Guyah v Commissioner of Customs and Others

• Jurisdiction: Jamaica
• Judge: Morrison JA,Dukharan JA,McDonald-Bishop JA
• Judgment Date: 13 March 2015
• Neutral Citation: JM 2015 CA 33
• Docket Number: SUPREME COURT CIVIL APPEAL NO 52/2014
• Court: Court of Appeal (Jamaica)
• Date: 13 March 2015

Between

Omar Guyah

Appellant

and

Commissioner of Customs

1st Respondent

and

Attorney General of Jamaica

2nd Respondent

and

Audrey E Carter

3rd Respondent

[2015] JMCA Civ 16

Before:

The Hon Mr Justice Morrison JA

The Hon Mr Justice Dukharan JA

The Hon Mrs Justice McDonald-Bishop JA (Ag)

SUPREME COURT CIVIL APPEAL NO 52/2014

JAMAICA

IN THE COURT OF APPEAL

CIVIL PROCEDURE - Procedural appeal - Whether learned trial erred in ruling that civil action should await the conclusion of criminal proceedings - Whether parallel criminal and civil proceedings from the same set of events should be stayed pending completion of criminal trial - Whether declaratory judgment would result in a risk of inconsistent decisions by Court of prejudicial criminal proceedings - Relevance of delay - Nature and effect of stay of proceedings

Paul Beswick , Miss Georgia Buckley and Miss Carissa Bryan instructed by Ballantyne, Beswick & Company for the appellant

Miss Althea Jarrett and Miss Marlene Chisholm instructed by the Director of State Proceedings for the first and second respondents

Morrison JA

1 I have read the reasons for judgment of my learned sister, McDonald-Bishop JA (Ag). I agree with her reasoning and conclusion and have nothing to add.

Dukharan JA

2 I, too, agree with the reasoning and conclusion of my sister, McDonald-Bishop JA (Ag).

McDonald-Bishop JA (Ag)

3 This is a procedural appeal brought by Omar Guyah, the appellant, against the order of McDonald J made on 29 May 2014 in which she ordered that the claim brought by him against the respondents is stayed pending the determination of criminal proceedings brought against him in the Corporate Area Criminal Court and that costs of the claim be reserved until the determination of those proceedings.

4 After hearing the appeal, we made the following orders:

• ‘(1) The appeal allowed.

• (2) Order numbered (2) made by McDonald J is set aside.

• (3) Costs of the appeal to the appellant to be agreed or taxed.’

We promised then to reduce into writing our reasons for making those orders. This is a fulfilment of that promise.

The background

5 The appellant is employed to the Jamaica Customs Department as the Director of Customs in the Contraband Enforcement Department. He is currently on interdiction. Criminal charges were brought against him by the Revenue Protection Division (‘the RPD’) in March 2012, for breaches of section 210 of the Customs Act, breaches of the Corruption Prevention Act and larceny. These charges relate to motor vehicles that include a Suzuki Swift motor car registered in the name of Audrey E Carter, the third respondent, that was seized as uncustomed goods.

6 On 12 August 2013, the appellant filed a claim in the Supreme Court against the respondents in which he is seeking several remedies with respect to the seizure of that motor car. He is seeking, among other things, a declaration that the Suzuki Swift motor car is not legally classifiable as uncustomed goods and as such is not liable to seizure under section 210 of the Customs Act, damages for conversion and loss of use of the motor car, aggravated, exemplary and punitive damages. He contends that he is the owner of the motor car and that the officers and agents of the Jamaica Customs Department who effected the seizure of the motor car had no authority to do so and have abused the power granted to them under the Customs Act.

7 The Commissioner of Revenue Protection, who is different in his functions from the Commissioner of Customs, and under whose aegis the RPD falls, was not made a party to the claim. An application was made before McDonald J to join the RPD but that was refused based on the material she had before her. It is accepted, however, that both the first and second respondents are connected to the criminal proceedings as it is in the name of the Crown that the criminal proceedings have been brought against the appellant in relation to matters concerning the Customs Act. The first respondent is the proper officer within whose portfolio the enforcement of section 210 of the Customs Act falls. There is thus a common interest and real connection between the first and second respondents, along with the RPD, in the outcome of both proceedings.

8 The fixed date claim form with the relevant supporting affidavit was served on the second respondent. The first and second respondents filed and served an acknowledgment of service but no defence or affidavit in response was filed and served by them within the prescribed time. Up to the date of the consideration of this appeal, the third respondent had not yet been served with the claim.

9 The appellant filed and served an application for leave to enter default judgment against the first and second respondents pursuant to rule 12.3(6) of the Civil Procedure Rules, 2002 (‘the CPR’). At the date fixed for hearing of the application, which was the first hearing of the fixed date claim form, counsel for the first and second respondents submitted that a default judgment could not be entered on a fixed date claim form. In the face of that objection, the appellant's counsel sought to move the learned judge to treat the first hearing as a trial of the claim since no defence or affidavit in response was filed by the first and second respondents.

10 An oral application was made by counsel for the first and second respondents for an extension of time for filing and serving a defence or an affidavit in response as well as for a stay of the civil proceedings pending the outcome of the criminal proceedings. In support of the oral application for the stay, the first and second respondents relied on the authority of Alton Brown v The Attorney General and Others [2013] JMSC Civ 106 [unreported judgment of Sykes J] contending that if the civil matter were to proceed, it could give rise to inconsistent judgments. There was no evidence filed in support of the application.

11 McDonald J reserved her decision on the applications and on 29 May 2014 she gave her decision. She denied the first and second respondents' application for an extension of time within which to file their defence or affidavit in response but granted the order that the claim be stayed pending the determination of the criminal proceedings. The learned judge granted leave to the appellant to appeal the decision granting the stay.

The impugned decision

12 The learned judge has set out her reasons for granting the stay in paragraphs [15] and [16] of her written judgment as follows:

‘[15] The Court has a discretion as to whether to treat this first hearing as a trial of the matter. In my opinion this discretion is affected by the fact that there are criminal charges arising out of these same circumstances. The Resident Magistrate's Court a Court of competent jurisdiction is dealing with the same subject matter, that is the 2007 Suzuki Swift motor car as is before the Supreme Court which is being asked to declare that the said motor vehicle is not legally classified as uncustomed goods and as such is not liable to seizure under Section 210 of the Customs Act. This is one of the very issues the Resident Magistrate will have to decide.

[16] I find that it would not be prudent for the Supreme Court at this time to risk possible interference with the criminal case which is actively going on and which may result in an inconsistent judgment. Arguments advanced at trial in the Supreme Court can be advanced before the Resident Magistrate and the Resident Magistrate would have all relevant facts before her as to why the vehicle was seized and would have the benefit of hearing from the witnesses. In light of the evidence of the criminal charges arising out of the same circumstances, I do not find that this is a case in which the Court should decide on having the civil case treated as a trial prior to the hearing of the criminal charges.’

The grounds of appeal

13 Against this decision, the appellant filed and argued three grounds of appeal as follows:

• ‘(i) The Learned Judge in Chambers erred in ruling that the civil action should await the conclusion of criminal proceedings currently underway in the Resident Magistrate's Court;

• (i) The Learned Judge in Chambers erred in concluding that parallel criminal and civil proceedings and civil proceedings, [sic] both arising from the same set of events should be stayed pending the completion of the criminal trial;

• (ii) The learned Judge in Chambers erred in concluding that the making of declaratory judgment concerning the law and on the facts, would result in a risk of inconsistent decisions by the court or would in any way prejudice the criminal proceedings.’

14 It is evident from the grounds as framed that there is an overlap among them which renders it convenient to address the decision of the judge and the reasons she gave as a whole for arriving at her decision to grant the stay. The propriety of the ruling of the learned judge has, therefore, been considered after an evaluation of all the grounds considered together and the submissions made in respect of them.

Submissions on behalf of the appellant

15 Counsel on behalf of the appellant, Mr Beswick, made quite comprehensive submissions in an effort to demonstrate that the learned judge erred in law in ordering a stay of the appellant's civil proceedings. The main planks of those submissions have been elicited, compressed for expediency and outlined as follows:

• (i) The application before the Supreme Court is for a declaratory judgment of fact and law under rule 8.6 of the CPR, concerning the Suzuki Swift motor car that forms the basis of the claim and is the subject matter of parallel criminal proceedings which are ongoing.

• (ii) The declaration being sought is not one to declare the innocence or guilt of the appellant and will not cause any undue prejudice to...