THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV 2013-03930

Between

SHARIAT IAN MOHAMMED

Claimant/Applicant

And

INISH HARRILAL

1ST

Defendant

LISA HARRILAL

2nd

Defendant

RADHAY MAHABIR

3rd

Defendant

AMRISH RAJIV MAHABIR

4th

Defendant

VENO HARRILAL also called VENO KHANI

5th

Defendant

JAGARNATH HARRILAL

6th

Defendant

Before the Honourable Mr. Justice R. Rahim

Appearances:

Mr. O. Ramischand for the Claimant

Mr. S. Sharma for the First and Second Defendants

Mr. R. Rajcoomar instructed by Mr. I. Ali for the Third, Fourth, Fifth and Sixth Defendants.

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Decision on Application

1. By Notice of Application filed on 25th

March 2014, the 3rd

, 4th

, 5th

and 6th

Defendants applied

to the Court for an order that the Claimant’s Claim filed on the 4th

October, 2013 be struck

out as being an abuse of process pursuant to Rule 26.2 (1) (b) Civil Proceedings Rules 1998,

that judgment be given in favour of the 3rd

, 4th

, 5th

and 6th

Defendants pursuant to Rule 15.2

on the ground that the Claimant has no reasonable prospect of success of the claim; and that

the Claimant pay the costs of this application and of the Claim.

2. At a CMC held on the 8th

July, 2014, the court ordered that submissions in writing be filed

and exchanged by the Claimant and the Third, Fourth, Fifth and Sixth Defendants by 15th

September, 2014. The Claimant and the Defendants have both complied with this order.

Background

3. By Claim Form and Statement of Case filed on the 4th

October, 2014, the Claimant claimed

inter alia, a declaration that from and after the 20th

June, 2009 the Claimant became the

beneficial owner of a One-Third share and interest in the fee simple estate of land situate in

Cunupia, comprising two acres (the disputed land) by virtue of an unregistered Memorandum

of Transfer dated 20th June, 2009 duly executed by the First Defendant, as one of the

Registered Proprietors. The Claimant also sought an order for possession of the disputed land

from the Defendants.

4. The Claimant claimed that on the 8th

day, June, 2009 he entered into an agreement for sale

with the First and Second Defendants to purchase the disputed land for the sum of One

Hundred and Twenty Thousand Dollars ($120,000.00). In pursuance of the agreement the

Claimant alleges that he paid monies including an overpayment of Three Thousand Dollars

($3,000.00) to the First Defendant.

5. The Claimant alleges that a Memorandum of Transfer was executed on 20th

June, 2009 by

the First Defendant, however, the First Defendant promised to supply the Certificate of Title

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to Attorney at law for the Claimant but he never did. The Claimant alleges that sometime in

June 2009 he took possession of the land and began minor construction thereon. During the

time that the Claimant took possession there were various hostile events on the land between

the Claimant and the Defendants.

6. The First Defendant subsequently transferred the disputed land to the 3rd

and 4th

Defendants

for alleged valuable consideration. By Civil action CV 2012/00889 (previous proceedings),

the Third, Fifth and Sixth Defendants sued the Claimant for possession alleging that they

were entitled to possession as owners as the registered owners. The previous proceedings

came before this court and the Claimant was represented by Mr. Samuel Saunders. During

the case management phase an application for summary judgment was made and a consent

order was entered into in that regard.

7. The Claimant now claims that in the first action he had specifically instructed Mr. Saunders

on the issue of fraud (conspiracy to deprive the Claimant of the land by the transfer to the

Defendants for alleged consideration), but Mr. Saunders did not plead fraud in the Defence

and Counterclaim. Also that on the day of the consent order, he was informed by Mr.

Saunders that he must consent to judgment for the Claimants in that matter and he was

confused but consented. This present action is now an attempt by the Claimant to set aside

that consent order.

Whether the proceedings should be stuck out on the basis of res judicata, issue estoppel

and abuse of process.

8. The Claimant has relied on the authority of Kelvin Field and another v Probhadai

Bissessar and another1. In that case the Claimants were pursuing relief with respect to three

different causes of action. The First Claimant claimed as landlord of the First Defendant in

respect of a parcel of land ("the first parcel of land") and the Second Claimant brought action

as the occupier of another parcel of land which adjoined the first parcel of land ("the second

1 CV 2012-00772

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parcel of land"). The Claimants sought two declarations (i) that the First Defendant is the

tenant of the first parcel the size and the boundaries of which are temporary and cannot and

will not be fixed unless determined by the First Claimant and (ii) that the parcel of land is

bounded by a public road which is the only access to the said land.

9. The second cause of action concerned a consent order made between the Defendants in that

case in H.C.A.84/2001; the Claimants sought to have the consent order set aside and declared

null, void and unenforceable. The third cause of action was in trespass with the Claimants

seeking damages and mesne profits. Regarding the consent order the Court did not set it aside

as the Claimants were not parties to the consent order and there were no particulars of fraud

on the part of the First Defendant with respect to obtaining the order. In considering the issue

of abuse of the process Jones J considered the Privy Council decision of Nana Ofori Atta II

Omanhene of Akyem Abuakwa and Another v Nana Abu Bonsra II as Adansehene and

as representing the Stool of Adanse and Another [1957] 3 All ER 559 and at paragraphs

25 and 26 quoted the dicta of Lord Denning with approval as follows:

“25.In arriving at their decision, the Court applied what it considered to be an

exception to a general rule of law: “The general rule of law, undoubtedly, is that

no person is to be adversely affected by a judgment in an action to which he was

not a party because of the injustice of deciding an issue against him in his

absence; but this general rule admits of two exceptions. One exception is that a

person who is in privity with the parties, a “privy” as he is called, is bound

equally with the parties, in which case he is estopped by res judicata; the other is

that a person may have so acted as to preclude himself from challenging the

judgment, in which case he is estopped by his conduct.”: per Lord Denning at

page 561 paragraphs C and D.

26.Their Lordships recognised three types of conduct which would result in a

party being estopped from litigating that the issue all over again: (i) active

participation in the proceedings; and in this regard Lord Denning gives the

example of a tenant sued for trespass on his neighbour’s land and who defends

the suit on the strength of his landlord’s title and by the direction and authority of

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the landlord. According to Lord Denning, if the tenant loses the action the

landlord would not be allowed to re-litigate the title all over again by bringing an

action in his own name; (ii) taking an actual benefit from the judgment in the

previous proceedings and (iii), as was the case before them, of standing by and

watching the proceedings fought out or at most giving evidence in support of one

side or the other”.

10. The Claimant in the present case, claim that in CV 2012-00889, the first matter, the 1st, 2

nd

and 4th

Defendants were not parties to the action as such the conditions necessary for a

successful plea of issue estoppel does not arise in this case. In this regard the Claimant has

relied on the case of Rampersad v Cooblal CV2010-01850. In so doing they have set out the

dicta of Charles J at paragraph 33 wherein the learned judge stated that the conditions

necessary for a successful plea of issue estoppel are:

i. The same question was decided in both proceedings;

ii. the judicial decision said to create the estoppel was final and

iii. the parties to the judicial decision or their privies were the same

persons as to the proceedings in which the estoppels is raised or

their privies2.

11. The Defendant submitted that the Claimant’s claim ought to be struck out as the issues of fact

and law are identical to the issues of fact and law in the previous proceedings. The

Defendant averred that as the issues are identical these proceedings are barred by virtue of

res judicata and estoppel because these issues were already determined in the previous

proceedings. In this regard the Defendant relied on the locus classicus Henderson v

Henderson 3 the facts of which are not relevant for present purpose. At page 382 Justice

Wigram V-C stated:

2 Carl Zeiss Stiftung v Rayner and Keeleer Ltd (No. 3) [1970] Ch. 506

3 [1843-60] All ER Rep 378

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“ I believe I state the rule of the court correctly, when I say that where a given

matter becomes the subject of litigation in, and of adjudication by, a court of

competent jurisdiction, the court requires the parties to that litigation to bring

forward their whole case, and will not (except under special circumstances)

permit the same parties to open the same subject of litigation in respect of matters

which might have been brought forward as part of the subject in contest, but

which was not brought forward only because they have, from negligent,

inadvertence, or even accident, omitted part of their case. The plea of res judicata

applies, except in special-case, not only to points upon which the court was

actually required by the parties to form an opinion and pronounce a judgment,

but every point which properly belonged to the subject of litigation and which the

parties, exercising reasonable diligence, might have brought forward at the

time”.

12. The Defendants also relied on Halsbury’s Laws of England4 where the learned authors

opined that :

“the law discourages re-litigation of the same issues except by means of an

appeal. It is not in the interests of justice that there should be re-trial of a case

which has already been decided by another court………the rule in Henderson v

Henderson has been described as being essentially part of the court’s wider

jurisdiction for striking claims out as an abuse of process……the rule provides

that a claimant is barred from litigating a claim that has already been

adjudicated upon or which could and should have been brought before the court

in earlier proceedings arising out of the same facts……the scope of the rule has

been extended to claims where there has been a settlement rather than a judgment

or a consent order”.

4 5

th edition Volume 12, paragraphs 1166 and 1167

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13. The Defendants also contended that all the issues and matters that are now being raised in

these proceedings were available to the Claimant in the previous proceedings, further the 3rd

,

5th

and 6th

Defendants did nothing to conceal or fraudulently mislead the Claimant into

entering the consent order as such the Claimant determined the matter by consent due to the

pleaded facts and law.

14. The Defendants also relied on the Privy Council case of Yat Tung Investment Co. Ltd v

Dao Heng Bank Ltd5. In that case the appellant purchased property from the bank and

thereafter claimed that the sale of the property was a sham. The bank denied the sale was a

sham and was successful on their counterclaim and the appellant’s claim was dismissed. One

month after the Court gave judgment the appellant brought another action against the bank

claiming that the sale of the property to the second respondent was void or voidable as

fraudulent. The bank and the Second Respondent applied for an order that the claim be struck

out as an abuse of the process of the court. It was held that the allegation of fraud and the

voidability of the sale by the bank were available in the first action, therefore the claim was

struck out. At page 590 it was stated that:

“ the shutting out of a subject litigation-a power which no court should

exercise but after a scrupulous examination of all the circumstances is

limited to cases where reasonable diligence would have caused a matter

to be earlier raised; moreover, although negligence, inadvertence or even

accident will not suffice to excuse, nevertheless special circumstances are

reserved in case justice should be found to require the non-application of

the rule”.

5 [1975] AC 581, see also Manson v Vooght [1999] BPIR 376; Johnson v Gore Wood & Co (a firm) [2001] 1 All ER 481, HL. It is

otherwise if the second claim is brought against a person whom the claimant could but did not join in the earlier claim (Gleeson v J Wippell & Co Ltd [1977] 3 All ER 54), and the second claim will not be stayed if the claimant relies on a different contract with different terms (Hardy v Elphick [1973] 2 All ER 914, CA). See also Sweetman v Shepherd [2000] All ER (D) 391 and Harris v Society of Lloyd's, Adams v Society of Lloyd's [2008] All ER (D) 04 (Jul) (abuse of process to bring fraud action based on the same cause of action and the same documents as previous action).

Page 8 of 13

In the Yat Tung case the Privy Council also considered the case of Greehalgh v

Mallard6, in particular the dicta of Somervell L.J :

“….res judicata for this purpose is not confined to the issues which the

court is actually asked to decide, but……it covers issues or facts which

are so clearly part of the subject matter of the litigation and so clearly

could have been raised that it would be an abuse of the process of the

court to allow a new proceeding to be started in respect of them”.

15. The rule was further explained by the court of appeal in Barrow v Bankside Agency

Ltd [1996] 1 All ER 981by Sir Thomas Bingham, Master of the Rolls at page 983 letter g as

follows:

"The rule in Henderson v Henderson....... is very well known. It requires the parties, when

a matter becomes the subject of litigation between them in a court of competent

jurisdiction, to bring their whole case before the court so that all aspects of it may be

finally decided (subject, of course, to any appeal) once and for all. In the absence of

special circumstances, the parties cannot return to the court to advance arguments,

claims or defences which they could have put forward for decision on the first occasion

but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense,

nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public

policy based on the desirability, in the general interest as well as that of the parties

themselves, that litigation should not drag on for ever and that a defendant should not be

oppressed by successive suits when one would do. That is the abuse at which the rule is

directed."

16. In this regard the Defendants submit that the Claimants admit that when the previous

proceedings went to trial there was evidence of fraud, however, this was not pleaded in the

Defence or Counterclaim as a result of inadvertence and negligence by his attorney. The

6 [1947] 2 All E.R. 255. 257

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Defendant submits that the case of Yat Tung case makes it clear that this would not suffice

to excuse the Claimant from bringing forward the same issues.

17. The Defendants also argue that the doctrine of res judicata is applicable to matters

determined by consent orders. In support of this proposition they relied on the authority of

South American and Mexican Company ex parte Bank of England7 in which Lord

Herschell LC stated at page 50:

“The truth is, a judgment by consent is intended to put a stop to litigation

between the parties just as much as is a judgment which results from the

decision of the Court after the matter has been fought out to the end. And I

think it would be very mischievous if one were not to give a fair and

reasonable interpretation to such judgments, and were to allow questions

that were really involved in the action to be fought over again in a

subsequent action”.

Res Judicata and Issue Estoppel

18. In the previous proceedings the Claimants (the Third Defendant, The Fifth Defendant and the

Sixth Defendant) filed a fixed date claim form on the 5th

March, 2012 claiming that they are

entitled to possession of the subject parcel of land, as the registered owners.

19. The Defence was filed on May 18th

, 2012. The Defendant (the Claimant in the present action)

claimed that he was the owner of an undivided one third share of the of the parcel of land

(which is the disputed land) whilst the Claimants were the owners in respect of an undivided

two thirds share of the parcel of land. In this defence the particulars of fraud as outlined by

the Claimant in this present action were not included. This is so although the facts which he

is purporting amounted to fraud were within his knowledge at that time. In this present action

the Claimant is also claiming that instructions in relation to fraud were given to his then

7 [1895] 1 Ch 37

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attorney, however, the attorney failed, refused, omitted and or neglected to plead and or state

same in the defence of the previous proceedings.

20. The authorities on res judicata are clear, the requirement is that parties to litigation must

bring forward their whole case and the court will not unless there are special circumstances

allow parties to re-litigate issues which were not brought forward as a result of negligence,

inadvertence or even accident, omitted part of their case.

21. In relation to the Claimant’s allegation that the issue of fraud was one that was available in

the previous proceedings and yet was not pursued despite his instructions to counsel, the

matter for the court to determine is whether this allegation amounts to special circumstances.

In the court’s view these circumstances do not amount to special circumstances. The

Claimants would have had to peruse the Defence and sign same as being accurate. The same

would have applied to the Counterclaim. It would have been obvious to the Claimant at that

point that nothing as relates to fraud was pleaded or set out and there is nothing on the

evidence which prevented him from dispensing with the services of Mr. Saunders at that

point (assuming that the allegations made against Mr. Saunders are true) and seeking an

adjournment for the purpose of obtaining new counsel. The Claimant would have also had

ample time and opportunity to make an application to amend the Defence and Counterclaim

and could have in fact amended prior to the first Case Management Conference without

permission and in any event with permission thereafter. The court is therefore left to query

the bona fides of the assertion of the Claimant that he gave instructions to Mr. Saunders in

relation to fraud and Mr. Saunders refused to abide by his instructions. These are all matters

which the court must consider in the context of this case.

22. Additionally, when one peruses the Defence filed in the first claim along with the Statement

of Case in the present case, it is clear that the matters pleaded are in material particular, the

same. The difference lies with the addition of a pleading at paragraph 19 of the Statement of

Case which sets out the particulars of fraud in this case being a conspiracy to deprive the

Claimant of the benefit of the purchase by the withholding of the Certificate of Title. There

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are no new documents to be relied on. The documents from which the Claimant alleges that

an inference can be drawn in relation to fraud and according to him, those which show direct

evidence of fraud are the documents which surround the registration of the Memorandum of

Transfer to these Defendants which were known and available to the Claimant in the first

case in any event. So that the claim for fraud ought to have been part of the first case if the

Claimant had genuinely thought that he had such a claim.

23. Further, it matters not, in the court’s view, that in this case, the first, second and fourth

Defendants were not parties. The Fourth Defendant although he was not a party to the

previous proceeding, was the registered co-owner of the disputed land along with the Third

Defendant. Also the First and Second Defendants are the previous owners of the land and

although they were not parties to the previous action, they are privies to the Claimants in the

previous action. Further, the court agrees with the submission of the Defendants that the

doctrine of res judicata is applicable to matters determined by consent orders as the law

appears to be clear on the issue. See paragraph 17.

The Abuse

24. In Johnson v Gore Wood & Co.(supra), Their Lordships of the House of Lords found that

there was a public interest in the finality of litigation and in a Defendant not being vexed

twice in the same matter; but that whether an action was an abuse of process as offending

against the public interest should be judged broadly on the merits taking account of all public

and private interests involved and all the facts of the case, the crucial question being whether

the Plaintiff was, in all the circumstances, misusing or abusing the process of the court"

Lord Bingham of Cornhill explained Henderson in these terms at page 498 letter j to 499 letter d:

"But Henderson v Henderson abuse of process, as now understood, although separate

and distinct from cause of action estoppel and issue estoppel, has much in common with

them. The underlying public interest is the same: that there should be finality in litigation

and that a party should not be twice vexed in the same matter. This public interest is

Page 12 of 13

reinforced by the current emphasis on efficiency and economy in the conduct of litigation,

in the interests of the parties and the public as a whole. The bringing of a claim or the

raising of a defence in later proceedings may, without more, amount to abuse if the court

is satisfied (the onus being on the party alleging abuse) that the claim or defence should

have been raised in the earlier proceedings if it was to be raised at all. I would not

accept that it is necessary, before abuse may be found, to identify any additional element

such as a collateral attack on a previous decision or some dishonesty, but where those

elements are present the later proceedings will be much more obviously abusive, and

there will rarely be a finding of abuse unless the later proceeding involves what the court

regards as unjust harassment of a party. It is, however, wrong to hold that because a

matter could have been raised in earlier proceedings it should have been, so as to render

the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic

an approach to what should in my opinion be a broad, merits-based judgment which

takes account the public and private interests involved and also takes account of all the

facts of the case, focusing attention on the crucial question whether, in all the

circumstances, a party is misusing or abusing the process of the court by seeking to raise

before it the issue which could have been raised before."

25. Having adopted the broad based approach advocated in Johnson v Gore, the court is of the

view that it is abundantly clear that the Claimant is attempting to get a “second bite of the

cherry” after consenting to the Order dated 12th

November, 2012, and is clearly seeking to

raise an issue which could have properly been raised before and ought to have been, having

regard to the serious nature of such an allegation of fraud. It appears to the court having

regard to the evidence that it may well be the case that there may now be a realization on the

part of the Claimant that to allege fraud may be his only way to challenge the consent order

having regard to the heavy public interest in ensuring that those who commit fraud are not

permitted to benefit from it. But the difficulty which the Claimant faces is that nowhere in

the previous proceedings is the issue of fraud raised when clearly it could have been so easily

raised on the very pleadings and so it appears to be a last salvo created for the sole purpose of

this claim by the Claimant. It would therefore mean that the Claimant is attempting to abuse

or misuse the process of the court and so equally the court should not permit him so to do.

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26. In view of the court’s finding above it is has become unnecessary to adjudicate on the

application for summary judgment and other issues raised by the Claimant some of which are

substantive issues which would ordinarily be reserved for trial in any event.

27. For these reasons, the court shall strike out the claim as being an abuse of the process of the

court and order that the Claimant pay to the Defendants the prescribed costs of the Claim up

to but not including trial on the basis of the claim being treated as one for $50,000.00 in sum

of $10,500.00 to each Defendant. The Claimant shall also pay to the Third, Fourth, Fifth and

Sixth Defendants, the costs of the application to be assessed in default of agreement.

Dated 12th

day of November, 2014

Ricky Rahim

Judge