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					REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE H.C.A. No. 38 of 1996 (P.O.S.) H.C.A. No. S-1584 of 1995

BETWEEN GANESH GOPAUL Plaintiff AND ROODAL BALKARAN 1st Defendant & THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO 2nd Defendant & FIRST CITIZENS BANK LIMITED 3rd Defendant

Before the Honourable Mme. Justice Dean-Armorer

Appearances: Mr. Campbell for the Plaintiff. Mr. Byam for the Attorney General. Mr. A. Hosein:

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REASONS

On the 28th October 2003, I dismissed the action herein as being contrary to the provisions of s.2 of the Public Authorities Protection Act Ch. 8:03. My reasons for so doing are set out hereunder. This was an action begun by a generally indorsed Writ of Summons which was issued on the 19th December, 1995. By his action the Plaintiff claimed damages for trespass to his goods and, in the alternative, damages for detinue and/or conversion. The Writ was accompanied by a Statement of Claim, in which the Plaintiff alleged that he had been the owner of:  1 Sunbeam hairdryer  1 three piece living room set with loose cushions  1 deluxe Consol Washer  1 ten cubic refrigerator  1 teak double decker bed The Plaintiff alleged further that the first Defendant was a Marshall’s assistant acting under the direction and control of the Attorney- General.

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By paragraphs 3 of the Statement of Claim, the Plaintiff alleged that on or about the 29th January 1993, attorneys-at-law for the F.C.B requested the Assistant Registrar of the Supreme Court to seal a Writ of Execution directed to the Marshall of the Court to levy on the goods and chattels of Sugrim Ramoutar, who had been the Defendant in H.C.A. No. 383 of 1992. The Plaintiff alleged further that on the 23rd of August 1993, while acting under the writ of execution, the first Defendant seized the goods which belonged to the Plaintiff and which the Plaintiff had temporarily stored on the premises of Sugrim Ramoutar. The Plaintiff alleged further that his goods were sold by the first Defendant in December, 1993 and that the proceeds of sale were paid to the F.C.B on whose behalf the writ of execution had been issued. The Defendants filed their Defence on the 16th May 1996. By paragraph 1 of their Defence, the Defendants contended as follows: “…… that the cause or causes of action alleged in the Statement of Claim did not accrue within one year of the commencement of this action. In support thereof the Defendants will rely upon the Public Authorities Protection Act.” When this matter came up for hearing on the 22nd October 2003, the Court heard arguments on behalf of the Defendants that the action was statute-barred by virtue of the provisions of the Public Authorities Protection Act Ch. 8:03.
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The Public Authorities Protection Act Ch. 8:03 was repealed by s. 22(2) and Schedule II of the Limitation of Certain Actions Act No. 36 of 1997. However, by s. 20 of the later Act its effect was suspended in respect of rights of actions which accrued before its commencement, on the 17th November 1997. Section 20(1) provides: “This Act does not apply to any action brought on a right of action which accrued before the commencement of this Act.” The Plaintiff brought this action on the 19th December, 1995. It is therefore not open to the Plaintiff to contend that the cause of action accrued after the commencement of the Limitation of Certain Actions Act No. 36 of 1997. The inevitable conclusion is that the action herein remains subject to the Public Authorities Protection Act, notwithstanding the Limitation of Certain Actions Act No. 36 of 1997. By his Statement of Claim, the Plaintiff has contended that goods were seized by the first Defendant on 23rd August, 1993 and eventually sold in December, 1993. Learned Counsel for the Plaintiff argued that paragraph 1 of the Defence was not in compliance with O.18 r.8 (1) (a) of the Rules of the Supreme Court 1975 and should accordingly be struck out. Order 18 r.8 (1) (a) provides: “A party must in any pleading subsequent to a Statement of Claim plead specifically any matter for example performance, release any relevant statute of limitation………

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(a)

which he alleges makes any claim…….of the opposite party not maintainable……”.

The rule at Order18 r. 8 requires “…. a party to tell the Court what he is coming to court to prove….”. per Buckley, L.J. in Re Robinson’s Settlement, Gant v. Hobbs [1912] 1Ch. 717 at 728. In my view, paragraph 1 of the Defence satisfied the requirements of O.18 r.8, in so far as particulars are provided of the statute on which the Defendants intended to rely. Learned Counsel for the Plaintiff, cited the case of Joseph v. A.G. H.C.A. No. 1305 of 1974 where Justice Cross regarded the Defence in question as offensive to O.18 r. 8 because the defence of limitation was pleaded in a “hodge-podge” of other statutes. In the instant case the Defendants pleaded only one statute. The instant case is therefore distinguishable from Joseph v A.G. It is also not open to the Plaintiff to contend that he was taken by surprise by the omission of the relevant dates at paragraph 1 of the Defence. The plaintiff has by his Statement of Claim identified the date of seizure. The date of the commencement of the action is part of the Court’s record. I therefore respectfully disagreed with learned Counsel for the Plaintiff that paragraph 1 of the Defence should be struck out being contrary to O.18 r.8 (1) (a), Rules of the Supreme Court 1975.

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I held the view that the Public Authorities Protection Act was applicable to two (2) of the three (3) causes of action in question. S.2 of the Public Authorities Protection Act provides: “ No action shall be brought against any person for any act done in pursuance of any Act or of any public duty… .unless it is commenced before the expiration of one year from the date on which the cause of action accrued except that where the act or neglect is a continuing one, no cause of action in respect thereof shall be deemed to have accrued until the act, neglect or default has ceased….” There was no dispute that two of the three causes of action arose more than one year prior to the commencement of the action, on the 19th December, 1995. The tort of trespass to goods is alleged to have occurred upon seizure of the goods on 23rd August 1993. The tort of conversion is alleged to have occurred upon the sale of the goods in December, 1993. Unless they are continuing torts both actions would become statute-

barred: the action in trespass on the 23rd August, 1994 and the action in conversion would have become statute barred in December, 1994. In respect of the Plaintiff’s causes of action in trespass and in conversion, the issue which arose for my consideration was whether these were continuing torts. There is clear authority in support of the defendant’s submission that both torts are not continuing torts. In General and Finance Facilities Ltd. v. Cooks Cars Romford Ltd. [1963] 2All E.R. 314, Lord Diplock said:

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“There are important distinctions between a cause of action in conversion and a cause of action in detinue. The former is a single wrongful act and the cause of action accrues at the date of the conversion. The latter is a continuing cause of action which accrues at the date of the wrongful refusal to deliver up goods and continues until delivery up of the goods or judgment in the action of detinue.” The action in conversion, not being a continuing wrong, accrued on the date on which the first defendant allegedly wrongfully delivered the plaintiff’s goods into the hands of a third party on the 19th December, 1994. I decided that the action in trespass to goods was not a continuing but a single wrongful act. This tort consists of “direct and immediate interference….” with goods”. See Bullen & Leake (15th ed.) para. 25-11. In deciding whether the tort of trespass to goods was a continuing tort, I compared it with the tort of trespass to land. This tort is treated as a continuing wrong when the trespass consists of wrongfully placing an object on the land of the Plaintiff. See Clerk and Lindsell on Tort (18th ed.) paragraph 32-20: “Whenever one person wrongfully puts something upon the land of another he is not only liable to pay damages for trespass in placing the thing there, but he is further under an obligation to remove it and is guilty of a continuing trespass as long as he neglects to do so……” I held the view that the distinction between the continuing trespass to land and the trespass to goods is akin to the distinction between two different kinds of trespass to land:

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the trespass consisting of wrongfully placing an object on another’s land and the trespass of wrongful excavation of another’s land. See Clerk and Lindsell on Tort (18th ed.) paragraph 32-20. In the case of the former, the essence of the wrong is an unlawful deposit of an object on another’s land. This occurs with the first placing of the object, but also continues until the object is removed. In the second case of trespass to land, as with the trespass to goods, the essence of the wrong is an interference which occurs once and for all, even if the interference constitutes a continuing source of injury. A cause of action in detinue arises after a reasonable time after the alleged tortfeasor has refused to return goods according to the demand of the owner Carlton Rattansingh v the A.G. CA #105/2000. There is no plea in the Statement of Claim that there was a demand or a refusal. The elements of an action in detinue are absent from in the Statement of Claim there was no application to have the Statement of Claim amended. Accordingly, I held the view that the cause of action in detinue should be regarded as having been abandoned. I rejected the contention of the Plaintiff that the Marshall had been acting out of the scope of his duty. If he had been so acting the Second Defendant ought not to have been joined. Accordingly the action was dismissed with costs payable by the Plaintiff to the Defendants fit for Advocate Attorney. Dated this 12th day of May, 2006.

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___________________ Mira Dean-Armorer Judge

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