Omar Guyah v Jack Drummond
| Jurisdiction | Jamaica |
| Judge | Morrison J,Palmer J,Nembhard J,Morrison, J |
| Judgment Date | 13 July 2020 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. SU2019CV00456 (formerly 2018 CD 00143) |
| Date | 13 July 2020 |
[2020] JMFC Full 4
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN CONSTITUTIONAL DIVISION
THE HONOURABLE Mr Justice Morrison
THE HONOURABLE Mr Justice Palmer
THE HONOURABLE Miss Justice Nembhard
CLAIM NO. SU2019CV00456 (formerly 2018 CD 00143)
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Captain Paul Beswick, Mesdames Gina Chang, Aisha Thomas and Terri-Ann Guyah instructed by Ballantyne, Beswick & Company for the Respondent/1 st Claimant
Mr Chukwuemeka Cameron instructed by Carolyn C. Reid & Company for the Respondent/2 nd Claimant
Miss Althea Jarrett and Mr Ricardo Maddan instructed by the Director of State Proceedings for the Applicants/Defendants
Evidence — Witness summons and witness summary issued by a party for an opposing party — Validity of witness summons — Application to strike out witness summary — Application to strike out portions of the claimants' statement of case on the basis that it is a collateral attack on a previous decision of the privy council — Civil Procedure Rules, rules 29.6 (3), 33.2, 33.3(4) and 33.3(5)
I have read the judgment of my brother and sister and I agree with their conclusions.
This claim is one of several claims that emanate from charges laid against the Claimants in or about 2012 in the Resident Magistrate's Court for the Corporate Area, that were dismissed in or about 2015 for want of prosecution. The Claimants say that crown servants affiliated with the Revenue Protection Division and Jamaica Customs, acted out of malice in pursuing the prosecution. After the completion of the criminal proceedings, the Claimants were once again placed on interdiction with a view to further disciplinary proceedings being commenced against the Claimants, resulting in the filing claim number 2015HCV04964, in which an interim injunction was sought and obtained.
In March of 2018 proceedings were filed seeking a number of declarations relating to malicious prosecution, infringement of several of their Constitutional rights, abuse of power, reinstatement to their posts, outstanding salary and emoluments, injunctive relief among the forty-six (46) orders and declarations sought in the claim. The said latter claim, which was commenced in the Commercial Division, was amended in October 2018, and by order of the Commercial Court in November 2018, the matter was removed from the Commercial list and was assigned the claim number SU2019CV00456. By order of this Court later in 2019, the claims 2015HCV04964 and SU2019CV00456 were ordered to be heard together.
The matters came for hearing in the Full court but three (3) interlocutory applications were fixed to be heard in addition to the substantive actions. With limited remaining time to hear the substantive matter, due to an unforeseen delay the week prior, the Panel opted to facilitate the hearing of the applications, as they had the potential to affect the substantive claims. Further, the Claimants had filed an affidavit of urgency indicating the need for the claims to proceed. The Claimants did not pursue their application to strike out portions of witness statements of the Defendants' witnesses, opting instead to leave the issues raised for determination at the trial.
By application filed on January 31, 2020, the Defendants sought orders as follows:
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1. The allegations contained in paragraphs 61 to 94, 128 to 182, 202 to 209, 210 to 212 and 213 to 233 of the Particulars of Claim are struck out as an abuse of the process of the court;
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2. Paragraphs 114 to 119 of the Particulars of claim are struck out as being a collateral attack on the Privy Council decision in Guyah v Commissioner of Customs and another [2018] UKPC IO and an abuse of the process of the court;
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3. The 1 st, 2 nd, 3 rd, 4 th and 7 th Defendants be removed as parties to the claim;
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4. Paragraphs 1, 2, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 21, 23, 24, 27, 28, 29 and 30 in the Claimants prayer for relief are struck out as an abuse of the process of the court.
The Defendants pursued the application only in regards to orders sought at paragraph 2, also opting to leave the remaining issues for determination at trial. In addition, they amended paragraph 2 to challenge only paragraphs 115 – 118 of the Particulars of Claim.
In January 2020 the Claimants filed a witness summary for Velma Ricketts-Walker, and in May 2020 filed a witness summons to have her compelled to give evidence on their case. The Defendants in turn, by Notice of Application for Court Orders filed on June 15, 2020, sought orders that:
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1. The Witness Summons issued on May 22, 2020 to Velma Ricketts — Walker Commissioner of Customs and Chief Executive Officer (CEO) of the Jamaica Customs Agency be set aside.
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2. The Witness Summary of Velma Rickets — Walker filed on January 17, 2020 by the claimant be struck out.
The decision of Guyah v Commissioner of Customs and Another [2018] UKPC 10 was delivered on May 14, 2018 and, as submitted by Counsel for the Defendant, made a definitive determination on whether one of the fourteen (14) motor vehicles (“the Suzuki”) was in fact uncustomed goods. In his action filed on August 12, 2013 (“the 2013 claim”), Mr. Guyah sought declarations that the Suzuki was not legally classifiable as uncustomed goods and was therefore not liable to seizure under section 210 of the Customs Act.
According to his claim, the Suzuki was unlawfully seized on February 15, 2012 under the Customs Act, and the officers who acted to effect seizure, had abused their powers under the Customs Act. He also sought an order requiring the Commissioner to transfer the registration of the vehicle to him or his nominee, damages for conversion, loss of use of the vehicle, aggravated, exemplary and punitive damages, but abandoned the latter aspects of the claim.
Pusey J, held in the 2013 claim inter alia that the Suzuki was not legally classifiable as uncustomed goods and was not liable to seizure under section 210 of the Customs Act, and that its seizure had been wrong in law to the extent that it was a seizure of uncustomed goods. This finding was based on the learned judge's view that the Suzuki could not be said to be uncustomed goods on the basis that the phrase meant that the goods evaded customs or that the customs duties had not been paid.
Pusey, J found that whether it was a seizure or detention, taking possession of the Suzuki had been wrong in law if done on the basis that it was uncustomed goods, he but declined to declare the taking of the vehicle as an abuse of power. He found that the officers were conducting investigations of an impropriety and had received conflicting statements. Accordingly, he found, the detention of the vehicle was reasonable while investigations continued. The learned judge also found that while not lawful under the Customs Act, the seizure might have been lawful under common law or other legislation. There were also comments made regarding Mr. Guyah's conduct, the particulars of which are not relevant for these applications.
On appeal, the Court of Appeal declared that the Suzuki constituted uncustomed goods on February 15, 2012 and was properly the subject of seizure by customs officials. The Court of Appeal disagreed with the interpretation of the term ‘uncustomed goods’ to exclude goods for which duties had been paid. The Court of Appeal found that the Suzuki constituted uncustomed goods because it had not been released according to the provisions of the Customs Act. The Court further found that the Suzuki could only have been disposed of by the Minister but had been disposed instead by the Commissioner without any evidence of such authorisation. It was therefore subject to forfeiture under the Customs Act and lawfully subject to seizure. The Court of Appeal also found that Mr. Guyah lacked the standing to seek an order that the vehicle had been unlawfully seized or that it's seizure was an abuse of power since he had not sought to establish any proprietary interest in the vehicle.
On appeal to the Privy Council Mr. Guyah argued that there was nothing in the evidence to show that the seizure of the vehicles in 2010 was performed in compliance with the legislation. While the vehicles were imported without a license, the seizure of them required the service of a notice on the warfinger, which was not done prior to the seizure, or at all. It was argued that the forfeiture by the Commissioner was premature, as an application could have been made under the Act for the entry of the goods. The forfeiture and seizure were therefore implicitly withdrawn as they were irregular.
His arguments in this regard were rejected, as there had been no argument at the Courts below that the forfeiture and seizure were irregular and the natural meaning taken from his affidavits were that the vehicles were lawfully seized and lawfully forfeited. On his behalf, it was argued that though Ministerial approval was required for the disposal of the vehicles to Kingston Logistics, no such approval was obtained and the Commissioner was presumed to have been acting under Ministerial approval when the vehicles were disposed of. This argument was also rejected and the Law Lords concluded that the Suzuki was in fact uncustomed goods under the Customs Act.
Paragraph 115 of the Particulars of Claim for the 2019 claim, asserts that the...
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