Robet Salmon v Elan Powell and Attorney General of Jamaica

• Jurisdiction: Jamaica
• Judge: Simmons, J.
• Judgment Date: 15 February 2012
• Neutral Citation: [2012] JMSC Civ 15
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2007HCV01090
• Date: 15 February 2012

[2012] JMSC Civ 15

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO. 2007HCV01090

Between

Robert Salmon

Claimant

and

Senior Superintendent Elan Powell

First Defendant

and

The Attorney General of Jamaica

Second Defendant

Mr. Sean Kinghorn & Mrs. Nicole Gordon-Haynes instructed by Kinghorn & Kinghorn for the claimant

Mr. Garcia Kelly , Ms. Stacy McLean , Miss Sherry-Lee Bolton & Ms. Deidre Pinnock instructed by the Director of State Proceedings for the defendant

CRIMINAL LAW - Road traffic - Motor vehicle - Operating vehicle contrary to road licence - Road Traffic Act, s. 63 - Claim dismissed for want of prosecution - Malicious prosecution - Wrongful seizure/detention of vehicle - Special damages

Simmons, J.

1 This matter arises out of the seizure of the claimant's motor vehicle registration number PA 8055 on the 22 ^nd June 2006 along Aberville Avenue, Patrick City in the parish of St. Andrew by the first defendant. At that time the claimant was a member of the Jamaica Constabulary Force as was the first defendant who was acting as an agent or servant of the Crown.

2 On the 23 ^rd June 2006 the claimant was charged under section 63 (8) of the Road Traffic Act for operating contrary to the terms of his road licence. By letter dated the 27 ^th June 2006 the claimant through his Attorneys-at-law requested that the police return the vehicle. The said vehicle was released by order of the court on the 18 ^th July 2006, some thirty days after its seizure. On the 9 ^th January 2007 the charges were dismissed for want of prosecution.

The Claim

3 On the 8 ^th March 2007, the claimant filed an action in which he claimed damages for malicious prosecution and the wrongful seizure and/or detention of his vehicle. It was alleged that on the day in question the first defendant acted maliciously and/or without reasonable and/or probable cause. Special Damages were also claimed as follows:-

i. Loss of earnings for thirty days ($20,000.00 per day)	$600,000.00
ii. Legal fees	$120,000.00
iii. Storage fees	$ 6,900.00

The Defence

4 The defendants denied that the first defendant acted maliciously and/or without reasonable and probable cause and maintain that the claimant's vehicle was seized in accordance with the provisions of the Road Traffic Act. It has not been denied that written requests were made for the return of the vehicle prior to the 18 ^th July 2006 when an order was made by the court.

5 The defendants made no admission in relation to the particulars of special damages.

Issues

6 The issues which arise are:-

• i. Whether the first defendant acted without reasonable and/or probable cause when he charged the claimant for operating contrary to the terms of his road licence;

• ii. Whether the first defendant acted without reasonable and/or probable cause when he seized the claimant's motor vehicle; and

• iii. Whether the defendant had the authority to release the claimant's vehicle at the time when the request was made for its return.

Claimant's evidence

7 The claimant's evidence is that on the day in question at about 7:30 a.m. he and his mechanic Mr. Linton Brown were travelling in his mini bus en route to the garage, when he was stopped by the first defendant on Benbow Crescent. He stated that the mini bus was not being operated as a public passenger vehicle as his road licence had expired from the 31 ^st March 2006. He also stated that he and Mr. Brown were the only persons in the vehicle. He indicated that an application for the renewal of the licence had been made and he was in possession of a receipt from the Transport Authority evidencing payment of the relevant fees.

8 The vehicle was seized and taken to the pound at Lyndhurst Road and charges laid against the claimant. On the first court date, he and the first defendant were bound over to attend on a subsequent date. The first defendant failed to attend court on three other occasions and the matter was ultimately dismissed for want of prosecution. The vehicle was returned to the claimant by order of the court some thirty days after its seizure.

9 In cross examination Mr. Salmon agreed that the receipt was not equivalent to a road licence and as such did not permit the operation of the vehicle as a public passenger vehicle. He also stated that he was licensed to operate a rural stage carriage between Point Hill and Kingston and that Duhaney Drive and Half Way Tree were not on his route. The claimant denied that the first defendant had stopped him in Half Way Tree prior to June 2006. He disclosed that the first defendant had spoken to him on a previous occasion about operating a public passenger vehicle whilst being a member of the Jamaica Constabulary Force. The claimant's road licence was renewed with effect from the 27 ^th June 2006.

Defendants' evidence

10 Evidence was given by Senior Superintendent Ealan Powell, Andrine Jackson-Scott, Alethia Dennis and Leophre Lindo.

11 Senior Superintendent Powell stated that on the day in question whilst on a special operation in the Washington Boulevard area, he saw a minibus and signaled for it to stop. It did not and he gave chase. The bus stopped in the vicinity of a garage and he asked the passengers to disembark. They complied. Whilst proceeding towards Duhaney Park he saw a Toyota Coaster registration number PA 8055 coming towards him. He observed that the vehicle, which was being driven by the claimant had stopped to pick up the passengers from the other bus.

12 The first defendant did not recall whether he asked to the claimant to produce his road licence and stated that his knowledge of the claimant's route was based on information that he had obtained previously. He also stated that he had warned the claimant on previous occasions with respect to his operating contrary to the terms of his road licence. In particular, he referred to an occasion when he spoke to the claimant in his office about the same subject and the claimant's failure to provide an explanation for operating in an area which was not covered by his road licence.

13 With respect to the seizure of the vehicle the first defendant indicated that his action was lawful as the claimant was charged under sections 63 (8) and (15) of the Road Traffic Act. He also stated that he had no power to release the vehicle in the absence of an order from the court.

14 Senior Superintendent Powell confirmed that he written a statement in relation to the matter which was before the Traffic Court but gave no explanation for his failure to attend court to prosecute the matter.

15 Mrs. Andrine Jackson-Scott the Manager for the Research and Statistics Department at the Transport Authority gave evidence pertaining to the ‘ via’ points and the stopping points for the Point Hill to Kingston route. These points are noted on each road licence. The area in which the claimant's bus was seen is not one of those points.

16 The witness confirmed that the claimant's Rural Stage Carriage Licence for the Point Hill to Kingston route issued on the December 16, 2003 had expired on March 31, 2006. She stated that a subsequent licence was issued to him for the period June 27, 2006 to March 31, 2010. Mrs. Jackson-Scott also indicated that applications for renewal are to be submitted from February 15 of the year in which the licence expires and that renewal is not automatic. The receipt it was stated did not operate as a road licence and the claimant's application for renewal was not submitted until the 23 ^rd June 2006.

17 In cross examination, a manual receipt dated the 26 ^th May 2006 was produced and admitted in evidence as exhibit 4. The witness explained that the 23 ^rd June 2006 was the date entered in the Transport Authority's system although payment was received on the date of the issue of the manual receipt. She also indicated that the renewal process is started early to ensure completion by the 31 ^st March as it was not the policy of the Authority to allow persons to operate before the date of renewal.

18 Miss Alethia Dennis who was a Deputy Clerk of the Court assigned to the Traffic Court in 2006 gave evidence in relation to the proceedings before that court. She stated that the matter was first listed on the 18 ^th July 2006 and on that date, the court made an order for the return of the bus to the claimant. The matter was set for trial on the 10 ^th October, 16 ^th November 2006 and the 9 ^th January 2007. On the 10 ^th October the defendant was not properly dressed and on the 16 ^th November he was absent and a bench warrant was ordered and stayed until the 9 ^th January 2007.

19 In cross examination, she stated that on the 27 ^th July 2006 a subpoena was issued for the first defendant to attend court on the 10 ^th October 2006. The endorsement indicates that it was personally served on the 15 ^th August 2006. On the 10 ^th October the matter was adjourned to the 23 ^rd October 2006 when a subpoena was issued for the first defendant to attend court on November 16, 2006. The endorsement indicates that it was personally served on the 2 ^nd November 2006.

20 Mr. Leophre Lindo, retired Inspector of Police gave evidence that he received two summonses from Inspector Coubrie for service on the claimant in relation to the matter which was before the Traffic Court. The said summonses were served by him on the 14 ^th July 2006.

Defendants' submissions

21 Mr. Kelly submitted that the issue of credibility is critical to the determination of this matter. The court's attention was directed to those aspects of claimant's evidence in which he denied being absent or improperly dressed for court and the inconsistencies in his evidence as to whether he could operate on the basis of the receipt for the road licence.

22 With respect to the failure to disclose...