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FRANCIS ANTHONY SA GOMES Plaintiff AND THE ATTORNEY GENERAL OF Defendants TRINIDAD AND TOBAGO and JULIAN HAYES [1998] TTHC 8 (27 March 1998)

TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

H.C.A. No. Cv 3335 of 1996

BETWEEN

FRANCIS ANTHONY SA GOMES Plaintiff

AND

THE ATTORNEY GENERAL OF Defendants

TRINIDAD AND TOBAGO and

JULIAN HAYES

Before the Honourable Mr. Justice P. Moosai

Appearances:

Mr. M. Campbell for the Plaintiff

Mr.B Sheperd for the Defendant

JUDGMENT

In this action the Plaintiff claims, inter alia:

(a) A declaration that the Plaintiff is entitled to be refunded the sum of Sixty-three thousand five hundred and sixty-two dollars and ninety-one cents ($63,562.91).

(b) An order that the said sum of Sixty-three thousand five hundred and sixty-two dollars and ninety-one cents ($63,562.91) be paid to the Plaintiff.

(c) Damages for wrongful distress and/or for wrongly converting the

Plaintiff’s goods on or about 17th April, 1996.

(d) Damages for breach of a contract made between the Plaintiff and the first Defendant on 16th April, 1996.

(e) Exemplary damages.

The Plaintiff (Francis Anthony ‘Baba’ Sa Gomes) is the son of Francis Alvaro Sa Gomes (hereinafter called “Sa Gomes senior”). At all material times the Board of Inland Revenue (hereinafter called “B.I.R”) alleged that Sa Gomes senior was in arrears of personal income tax in the sum of Sixty Thousand one hundred and six dollars and seventy-seven cents ($60,106.77) (hereinafter called “the said arrears”). On the morning of 17th April, 1996 at approximately 8.40a.m. the second Defendant in purported exercise of B.I.R’s Powers of Distraint under Section 104 of the Income Tax Act Chapter 75.01 levied a distress (hereinafter called ‘the said distress’) upon the boat Post Time (which on or about 1st January 1990 was renamed Melissa Ann) by seizing and taking possession of the same for the purpose of recovering the said arrears. At the time of the said distress at the Trinidad Yacht Club, the second Defendant was accompanied by officers of B.I.R., armed police officers, members of the Coast Guard who were there for the purpose of taking away the said boat, and a bailiff and his employees.

The Plaintiff is contending that the said boat was his at the time of the said distress. The Defendants are contending that the said boat belonged to Sa Gomes senior at that time. Both attorneys have conceded that the question of ownership of the said boat is a question of fact to be determined by the Court. Let me therefore examine the evidence that the B.I.R. had in its possession at the time of the said distress for it impacts significantly on the fact-finding exercise upon which I have to embark. The evidence of the second-named Defendant as to proof of ownership was the following:

“From all our information and all our records we had obtained, we got word that that boat belong to Sa Gomes senior.”

“In relation to Sa Gomes senior we received a document in 1995 giving us a list of boats and who it is registered with in the Yacht Club. The Plaintiff is not registered in that list of members. Sa Gomes senior is registered in that list.”

“I had information from the Yacht Club that Sa Gomes senior was owner of boat. That document was received in 1995. I also had information from a third party. This was the document I received from the Yacht Club. It is dated 26th October, 1995. On the basis of this, I did not form impression that Sa Gomes senior was owner. We had third-party information that Sa Gomes senior was owner. These other parties are other boat owners at the Yacht Club. I have not brought them as witnesses.”

The document dated 26th October, 1995 is a document from the Yacht Club to B.I.R in which it is expressly stated:

“It is not possible from the records of the club to know which of its members are the owners of boat moored or stored at the club’s premises. However, there are two (2) classification of members of the Trinidad and Tobago Yacht Club and there are social members and full members. Only full members are entitled to moor or store boats at the club and those recorded in our books as are detailed in the attached list.”

The list goes on to name Sa Gomes senior in the following manner:

MR. FRANCIS SA GOMES. SEN.

M.V. “MELISSA ANN”.

29 SUNSET AVENUE,

BAYSHORE.

FULL FAMILY. MEMBERSHIP.

$701.50.

The second Defendant in his evidence under cross-examination states further:

“By that document Yacht Club is making a statement of fact that they don’t know who owners are. I understand them to mean that only full members can store boats at the club. Yes, as you imply from that, it does not mean that they own that boat. They state categorically that that is not evidence of ownership. I am relying on that document partly to say he was owner. That document did not say he was, nor that he was not an owner. I did not know if the Plaintiff was a full-time member or not. I did not inquire. I formed my opinion on that and based on third-party verification. I did not form an opinion based on this document. I formed an opinion based on this document together with other information. I did not produce any other information. I did not produce it as I found the document plus the other information was sufficient for me to act... I together with other officers acted on information that Sa Gomes senior was owner of boat. Supervisor is person from whom I took my instructions. Supervisor is not here today. I do not know if he is a witness. As far as I am aware I did not form an opinion. I cannot say an opinion was formed for me. I acted on instructions. In my department I act on that. I am an enforcement officer. I work with instructions from my supervisor. On that day I had authority to execute a distress warrant... My investigations revealed that the boat was owned by Sa Gomes senior. The records that revealed that is letter of the Yacht Club and the information from third parties whom we have not brought as witnesses. I am not at liberty to bring witnesses. I am a defendant. I don’t know if I am restrained from bringing witnesses. I am guided by Attorneys.”

The only other evidence from the Defendants in support of proof as to ownership of the said boat being in Sa Gomes senior is the evidence of Edward Soon. He states in his examination-in-chief:

“Having conducted investigations into who was owner of Melissa Ann, I made enquiries of the Yacht Club about Melissa Ann. I was told by deck hands...”

Objection was correctly taken that that was hearsay. Even if it were not hearsay, the sources of their information, as would appear during the course of my judgment and having regard to the particular facts of this case, were not such as could reasonably lead them to believe that Francis Sa Gomes senior was the owner of the said boat.

It would therefore appear that B.I.R had information provided either by deck hands or, as the Defendant says, from boat owners. It also appears that the enquiries referred to by Soon were the enquiries he made on the day of the distress from the deck hands who were on board the said boat. One would have at least expected some consistency from the Defendants’ witnesses as to the source of their knowledge if the Defendants were asking the Court to believe their witnesses. This was hearsay and, coupled with the said document which clearly stated that that it was not possible from the records of the Yacht Club to know which of its members are the owners of boats moored or stored at the club’s premises, was not sufficient for B.I.R to act the way it did.

The evidence of the Plaintiff in this matter is that he is a Boat Captain. He is the Captain of Melissa Ann. He purchased the said boat in December 1989 from Dr. Inalsingh. There is a Bill of Sale that evidences the sale of the said boat. The said Bill of Sale is not registered pursuant to the Shipping Act, Act No. 24 of 1987, but both Attorneys have conceded that at common law registration is not a requirement. The name of the said boat was Post Time when he purchased it. He changed the name of the said boat to Melissa Ann when his daughter was born on 6th January, 1990. Her name was Melissa Ann. The Birth Certificate of the daughter was tendered into evidence confirming the said birth date. He paid One hundred thousand dollars ($100,000.00) for the said boat. He used the said boat for the purpose of taking tourists on sightseeing and pleasure cruises. He tendered into evidence a brochure and documents from the Immigration authorities and from the Custom and Excise Department. The brochure indicates that the said boat is available for cruises and offshore fishing adventures. Interestingly enough the said brochure highlights the record-breaking activities of the passengers on board the said boat in St Lucia in 1993. The Customs and Excise documents list him as declaring that he was both owner and master of the said boat as far back as 1995.

On 17th April, 1996 the second Defendant and some police officers with machine-guns and some Coast Guard officers and other people arrived at the Yacht Club by land and by sea. They asked for Francis Sa Gomes. The Plaintiff said he told the second Defendant he was Francis Sa Gomes. The second Defendant gave him a document stating that he was owing money to B.I.R. The Plaintiff told the second Defendant that he obviously had the wrong person. The Plaintiff said he told him there was another Francis Sa Gomes and that he, the Plaintiff, was not owing any taxes. The Plaintiff further stated that he told the second Defendant that it is obviously his father that he was looking for. He then gave the address of his father to the second Defendant. The people who accompanied the second Defendant were about ten to fifteen people, some police, some Coast Guard. They told the Plaintiff that he could not get back the said boat. The second Defendant told the person who cleans the said boat for the Plaintiff to get out of same. The Plaintiff was ordered off the said boat. Some of the people were on board the said boat doing some kind of inventory.

The Plaintiff then proceeded to his father’s premises at No. 29 Sunset Drive, Bayshore as the people told him that he could not go on the said boat.

Before proceeding to his father’s premises he told the second Defendant that he did not want the Coast Guard to take the said boat as they would damage it. The second Defendant told him that he had to pay the outstanding amount by 10.00 o’clock

He paid the sum of Sixty-three thousand five hundred and sixty-two dollars and ninety-one cents to the second Defendant. When he paid the money he gave the second Defendant a letter. This letter is of some significance as it lends credence to the Plaintiff’s story and also casts doubt on the Defendants’ assertion that the Plaintiff admitted that his father and/or Dr. Inalsingh were the owners of the said boat. The letter states inter alia:

“...I confirm that I am not indebted to the Board of Inland Revenue in the said sum or at all; that the said boat is owned by me and therefore is not subject to garnishee action by you...”

The Plaintiff is clearly stating that he is the owner of the said boat. If I accept the case for the Respondents, why would a Plaintiff who throughout, as the Defendants’ witnesses say, has been admitting that his father and/or Dr. Inalsingh were the owners of the said boat, why would he suddenly contend that he was now the owner of same?

Indeed the Plaintiff’s witness, Christopher Power, makes the point that since 1st February, 1997, he has been the Manager of the Yacht Club and that he knows the boat Melissa Ann. In respect of the boat Melissa Ann he deals with the Plaintiff all the time. If there is a theft or if there is trouble with the said boat he would contact the Plaintiff. He has contacted the Plaintiff on many occasions. The Plaintiff is the only one he has dealt with since February 1997. He is aware that the Plaintiff charters his boat. The Plaintiff is a social member and his father is a full member.

Again when one considers the evidence of Francis Sa Gomes senior, under cross-examination he produced a receipt dated 6th May, 1985 evidencing the purchase of the boat “Unity” from Dr. Inalsingh. His evidence was that he sold the boat Post Time to Dr. Inalsingh. Dr. Inalsingh gave him a smaller boat “Unity” and a cash payment of Forty thousand dollars ($40,000.00) in exchange for Post Time.

Having regard to the contents of Exhibit “Q” i.e. the unregistered bill of sale, the Defendants’ Attorney in his cross-examination of Francis Sa Gomes senior seemed to have taken the slant that either Francis Sa Gomes senior was the owner of the boat Melissa Ann or that he was part-owner having purchased sixty-four shares in the said boat. This was in fact put to the witness Francis Sa Gomes senior. It seems that at some point thereafter Attorney for the Defendants realized that in boating circles the sale of sixty-four shares meant the sale of the entire interest in a ship or boat. This would suggest that Attorney was really on some kind of fishing expedition with respect to his instructions. In his address Attorney therefore had no alternative but to concede the point that the sale of sixty-four shares meant the sale of the entire interest in a ship or boat.

Under cross-examination the Plaintiff’s credibility was not tarnished in any manner. In addition when one looks at the demeanour of the Plaintiff’s witnesses, Dr. Inalsingh, Francis Sa Gomes senior and Father Christopher Power, it appears to me that they are credible witnesses and that their evidence is to be preferred to that of the Defendants’ witnesses.

I have therefore come to the conclusion that the Plaintiff has satisfied me that at all material times he was the owner of the said boat. The payment to B.I.R was therefore made under duress or some other form of compulsion other than legal compulsion. It is therefore deemed to be involuntary and the sum paid is recoverable as money had and received: Brown v. M’kinally (1795) 1 Esp. 279.

Moreover if a person pays money which he is not bound to pay under the compulsion of urgent and pressing necessity or of seizure, actual or threatened, of his goods he can recover it as money had and received. Such a payment is not made under duress in the strict sense of the term as that implies duress of person, but under the pressure of seizure or detention of goods which is analogous to that of duress. Payment under such pressure establishes that the payment is not made voluntarily to close the transaction and with the intention of giving up a right but it is made under immediate necessity with the intention of preserving the right to dispute the legality of the demand: Wells (W.C.) Construction Co. Ltd. v Sugar City Municipal District No. 5 [1954] 2 D.L.R. 589.

It is clear in the instant case that the Plaintiff paid the money which he was not bound to pay under the compulsion of urgent and pressing necessity or of seizure of his boat. He can therefore recover the sum paid as money had and received.

In addition the goods were distrained in circumstances which make the distress wrongful and an action lies for damages against the distrainor in respect of this wrongful distress: Mc Gregor on Damages 15th Edition at paragraph 1376. The normal measure of damages is the value of the goods illegally distrained: Mc Gregor paragraph 1378 ibid.

I now turn to the question of the claim in conversion.

“Conversion is an act of deliberate dealing with a chattel in a manner inconsistent with another’s right whereby that other is deprived of the use and possession of it. To be liable the Defendant need not intend to question or deny the Plaintiff’s rights, it is enough that the conduct is inconsistent with those rights.”: Mayne and Mc Gregor on Damages 12th Edition p. 671 para . 1077.

“Anyone who without authority takes possession of another man’s goods with the intention of asserting some right or dominion over them is prima facie guilty of a conversion; or, in other words, anyone who deals with goods in a manner inconsistent with the right of the true owner is guilty of a wrongful conversion; provided there is an intention on the part of the person so dealing with them to negative the right of the true owner or to assert a right inconsistent therewith”: Mayne and Mc Gregor on Damages 12th Edition. para. 1079.

It is clear that when the B.I.R took possession of the Plaintiff’s said boat, they had the intention of asserting some right or dominion over it. In effect they were saying that it was not the Plaintiff’s boat. It is immaterial that it was seized for a short period.

Mayne and Mc Gregor on Damages 12th Ed n. para. 1080 states:

“The taking need not be with the intention of acquiring a full ownership. It is enough if any interest was claimed inconsistent with the right of the person truly entitled: In Teer v Freebody [1858] EngR 622; (1858) 4 C.B. (N.S.) 228, the Defendant wrongfully took possession of certain goods with the intention of acquiring a lien and it was held that he was guilty of a conversion. Even a still more transitory exercise of dominion may, it would seem, amount to a conversion. If a man takes my horse and rides it and then redelivers it to me nevertheless I may have an action against him, for this is a conversion, and the redelivery is no bar to the action but shall be merely a mitigation of damages!”

The person truly entitled to possession of the said boat was the Plaintiff. The evidence is that the employees, that is, the deck hands, were ordered off the said boat. The Plaintiff was told he could not get back the said boat unless the moneys were paid. The Defendants’ servants or agents boarded the said boat for the purposes of taking an inventory. The conduct of the Defendants was inconsistent with the right of the Plaintiff to the use and possession of his boat. In the circumstances the Defendants are also liable to the Plaintiff for the tort of conversion.

But that is not the end of the matter. Mr. Campbell submits that I should award exemplary damages for trespass to goods. Mr. Sheperd argues that no claim is made for same.

The question arises as to whether the action of the Defendants amounts to a trespass to the Plaintiff’s goods. The action of trespass to chattels, de bonis asportatis, has always been concerned with the direct, immediate interference with the Plaintiff’s possession of a chattel. Though asportation suggests what is perhaps the most common factor of this form of trespass, that is, the taking away or removal of the Plaintiff’s possession, the wrong of trespass includes any unpermitted contact with or impact upon another’s chattel: Clerk and Lindsdell on Torts 13th Edn. para. 1181.

The Plaintiff’s evidence, which I accept, is that when the second Defendant arrived at the Yacht Club, the people came on the boat. The second Defendant told the person who cleans the boat for the Plaintiff to get out. The Plaintiff was ordered off the boat. They told him he would not get back the boat. They proceeded to do some kind of inventory.

The Defendants’ witness, Edward Soon, lends some support to the Plaintiff’s case. He said that after leaving the Plaintiff’s father’s home at Sunset Drive, Bayshore, they got back to the Yacht Club and he instructed his men to cease taking the inventory which is what they were doing when he left.

The act of the Defendants, their servants and/or agents clearly included an unpermitted contact with or impact upon the Plaintiff’s chattel and therefore amount to a trespass to the Plaintiff’s boat. Although the point has not been decided the authors of Clerk and Lindsdell on Torts 17th Edn. para 13-159 suggest that the court would probably hold that direct and deliberate interference is trespass to goods even if no damage ensues. Having regard to the circumstances of this case, I hold that the action of the Defendants amount to a trespass to the Plaintiff’s goods.

The Plaintiff’s case as framed does not include a claim for trespass to goods. But Mayne and Mc Gregor on Damages 12th Edn. in the passage previously cited namely, para. 713 states:

“If the conversion is by taking, then both trespass and conversion are available to the Plaintiff, and it would seem immaterial which action he brings for the purpose of exemplary damages: at least he could amend today to include trespass.”

Further in H.C.A No. 3357 of 1982 Abdool Karim v. The Attorney General et al. Mr. Justice Sharma (as he then was) stated:

“The Plaintiff would be entitled to succeed in conversion. Although there has been no such claim by the Plaintiff I have the power to amend the writ for a claim in conversion as an alternative to the one for wrongful detention and I do so now. No prejudice is suffered by the Defendants by such an amendment as the same facts on which the Plaintiffs rely give rise to conversion as well.”

I agree with the reasoning of Mr. Justice Sharma. The same facts relied upon by the Plaintiff in the instant case give rise to trespass. I would accordingly amend the Plaintiff’s writ to include a claim for trespass to goods.

The final question that arises for determination is whether exemplary damages ought to be awarded in this case.

Mr. Sheperd for the Defendants contends that exemplary damages should not be applied generally and that it is only available for a claim if, prior to Rookes v Barnar d [1964] UKHL 1; [1964] 1 All E.R. 367 exemplary damages would have been available to the Plaintiff for a claim of wrongful and/or unlawful distress and conversion. He relies on the authority of A.B. v. South West Water Services Ltd. in support of this proposition.

In A.B. v. South West Water Services Ltd [1993] 1 All E.R 609 the English Court of Appeal held that since it had been laid down by the House of Lords in 1964 that awards of exemplary damages should be restricted to torts which were recognized at that time as grounding a claim for exemplary damages and, since public nuisance was not such a tort, exemplary damages could not be recovered by a Plaintiff for particular damage resulting from a public nuisance.

In A.B.’s case Lord Justice Stuart-Smith at page 615 referred to Lord Devlin’s speech in Rookes v. Barnard [1964] UKHL 1; [1964] 1 All E.R. 367 at 407:

“Exemplary damages are essentially different from ordinary damages. The object of damages in the usual sense of the term is to compensate. The object of exemplary damages is to punish and to deter. It may well be thought that this confuses the civil and criminal functions of the law; and indeed, so far as I know, the idea of exemplary damages is peculiar to English law. There is not any decision of this House approving an award of exemplary damages and your Lordships therefore have to consider whether it is open to the House to remove an anomaly from the law of England. It must be remembered that in many cases of tort damages are at large, that is to say, the award is not limited to the pecuniary loss that can be specifically proved. In the present case, for example, and leaving aside any question of exemplary or aggravated damages, the Appellant’s damages would not necessarily be confined to those which he would obtain in an action for wrongful dismissal. He can invite the jury to look at all the circumstances, the inconveniences caused to him by the change of job and the unhappiness maybe by a change of livelihood. In such a case as this, it is quite proper without any departure from the compensatory principle to award a round sum based on the pecuniary loss proved. Moreover, it is very well established that in cases where the damages are at large the jury (or the judge if the award is left to him) can take into account the motives and conduct of the defendant where they aggravate the injury done to the Plaintiff. There may be malevolence or spite or the manner of committing the wrong may be such as to injure the Plaintiff’s proper feelings of dignity and pride. There are matters which the jury can take into account in assessing the appropriate compensation. Indeed, when one examines the cases in which large damages have been awarded for conduct of this sort, it is not at all easy to say whether the idea of compensation or the idea of punishment has prevailed.”

In Rookes v. Barnard Lord Devlin stated at pages 410 to 411:

“These authorities convince me of two things. First, that your Lordships could not without a complete disregard of precedent, and indeed of statute, now arrive at a determination that refused altogether to recognise the exemplary principle. Secondly, that there are certain categories of cases in which an award of exemplary damages can serve a useful purpose in vindicating the strength of the law, and thus affording a practical justification for admitting into the civil law, a principle which ought logically to belong to the criminal. I propose to state what these two categories are; and I propose also to state three general considerations which, in my opinion, should always be borne in mind when awards of exemplary damages are being made. I am well aware that what I am about to say will, if accepted, impose limits not hitherto expressed on such awards and that there is powerful, though not compelling, authority for allowing them a wider range. I shall not therefore conclude what I have to say on the general principles of law without returning to the authorities and making it clear to what extent I have rejected the guidance they may be said to afford. The first category is oppressive, arbitrary or unconstitutional action by the servants of the government. I should not extend this category, - I say this with particular reference to the facts of this case, - to oppressive action by private corporations or individuals. Where one man is more powerful than another, it is inevitable that he will try to use his power to gain his ends; and if his power is much greater than the other’s, he might perhaps be said to be using it oppressively. If he uses his power illegally, he must of course pay for his illegality in the ordinary way; but he is not to be punished simply because he is the more powerful. In the case of the government it is different, for the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service. It is true that there is something repugnant about a big man bullying a small man and very likely the bullying will be a source of humiliation that makes the case one for aggravated damages, but it is not in my opinion punishable by damages. Cases in the second category are those in which the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff. I have quoted the dictum of Erle, C.J., in Bell v. Midland Ry. Co. ((1861) [1861] EngR 486; 10 CBNS 287 at 304[1861] EngR 486; , 142 ER 462 at 469). MAULE, J., in Williams v. Currie [1845] EngR 942; (1845) 1 CB 841 at 848[1845] EngR 942; , 135 ER. 774 at 776-777) suggests the same thing; and so does MARTIN, B., in an obiter dictum in Crouch v. Great Northern Ry Co.(1856) [1856] EngR 7; 11 Exch 742 at 759[1856] EngR 7; , 156 ER 1031 at 1038). It is a factor also that is taken into account in damages for libel; one man should not be allowed to sell another man’s reputation for profit. Where a defendant with a cynical disregard for a plaintiff’s rights has calculated that the money to be made out of his wrongdoing will probably exceed the damages at risk, it is necessary for the law to show that it cannot be broken with impunity. This category is not confined to moneymaking in the strict sense. It extends to cases in which the defendant is seeking to gain at the expense of the plaintiff some object.- perhaps some property which he covets, - which either he could not obtain at all or not obtain except at a price greater than he wants to put down. Exemplary damages can properly be awarded whenever it is necessary to teach a wrongdoer that tort does not pay. To these two categories, which are established as part of the common law, there must of course be added any category in which exemplary damages are expressly authorised by statute. I wish now to express three considerations which I think should always be borne in mind when awards of exemplary damages are being considered. First, the plaintiff cannot recover exemplary damages unless he is the victim of the punishable behaviour. The anomaly inherent in exemplary damages would become an absurdity if a plaintiff totally unaffected by some oppressive conduct which the jury wished to punish obtained a windfall in consequence.”

At page 617 Lord Justice Stuart-Smith states:

“It is not in the speech of Lord Devlin that one finds the limitation for which Mr. Symons contends, but in the speeches of four of their Lordships in Cassell & Co. Ltd. v Broome [1972] UKHL 3; [1972] 1 All E.R. 801, [1972] A.C. 1027, namely Lord Hailsham of St Marylebone LC, Lord Diplock, Lord Wilberforce and Lord Kilbrandon, and perhaps also Lord Reid. The Appellate Committee consisted of seven Lords of Appeal, so four constituted a majority. Under the heading ‘Did Rookes v Barnard extend exemplary damages to fresh torts?’ Lord Hailsham L.C. said ([1972] 1 All ER 801 at 828[1972] UKHL 3; , [1972] AC 1027 at 1076):

‘Having rejected the theory that Lord Devlin’s speech can be pushed aside as having been delivered per incuriam, I hope I may now equally dispose of another misconception. I do not think that he was under the impression either that he had completely rationalised the law of exemplary damages, nor by listing the “categories” was he intending, I would think, to add to the number of torts for which exemplary damages can be awarded. Thus I disagree with the dictum of Widgery Lj in Mafo v Adams [1969] 3 All ER 1404 at 1410, [1970] 1 QB 548 at 558 (which, for this purpose, can be treated as an action for deceit) when he said: “As I understand Lord Devlin’s speech, the circumstances in which exemplary damages may be obtained have been drastically reduced, but the range of offences in respect of which they may be granted has been increased, and I see no reason since Rookes v. Barnard why, when considering a claim for exemplary damages, one should regard the nature of the tort as excluding the claim.” This would be a perfectly logical inference if Lord Devlin imagined that he was substituting a completely rational code by enumerating the categories and stating the considerations. It is true, of course. that actions for deceit could well come within the purview of the second category. But I can see no reason for thinking that Lord Devlin intended to extend the category to deceit, and counsel on both sides before us were constrained to say that, though it may be paradoxical, they were unable to find a single case where either exemplary or aggravated damages had been awarded for deceit, despite the fact that contumelious, outrageous, oppressive, or dishonest conduct on the part of the defendant is almost inherently associated with it. The explanation may lie in the close connection that the action has always had with breach of contract (see the discussion in Mayne and MacGregor [Damages (12th edn. 1961) ch 41, esp at paragraph 968]).’

At page 618 Lord Justice Stuart-Smith continues:

“Lord Diplock put the matter beyond doubt. He said ([1972] 1 All E.R. 801 at 874[1972] UKHL 3; , [1972] AC 1027 at 1130-1131):

‘Finally on this aspect of the case I would express my agreement with the view that Rookes v. Barnard was not intended to extend the power to award exemplary or aggravated damages to particular torts for which they had not previously been awarded, such as negligence and deceit. Its express purpose was to restrict, not to expand, the anomaly of exemplary damages.”

And at page 620 Lord Justice Stuart-Smith concluded:

“Accordingly, in my judgment there is no binding authority of this court which compels us to disregard the dicta of the House of Lords in Cassell v. Broome to which I have referred. And accordingly I would hold that before an award of exemplary damages can be made by any court or tribunal the tort must be one in respect of which such an award was made prior to 1964.”

I am in complete agreement with the ratio decidendi in A.B’s case . The Plaintiff’s claim in the instant matter is for damages for wrongful distress and conversion. For an award of exemplary damages to be made, the Plaintiff must show that exemplary damages were awarded for the torts of wrongful distress and conversion prior to 1964.

In dealing with the question as to whether exemplary damages can be awarded for distress Mc Gregor on Damages 15th Ed. para. 1379 states:

“The oscillation between exemplary and aggravated damages has been more pronounced in the field of distress than in that of trespass to goods. That exemplary damages could be recovered for illegal distress is suggested by Bayliss v Fisher [1830] EngR 850; (1830) 7 Bing. 153 where substantial damages were awarded despite the fact that no actual damage was proved because, though the landlord had put a man in possession, the Plaintiff had had the use of his goods throughout, and by Interoven Stove Co.v Hibbard [1936] 1 All E.R.263 where substantial damages were again awarded although the goods had been returned and no actual damage proved. In neither case, however, were the damages expressly awarded as exemplary, and Hilbery J. in Interoven Stove Co. cited Greer L.J’s doubts in his dissent in Owen & Smith v Reo Motors (1934) 151 L.T. 274 as to the propriety of awarding exemplary damages in trespass to goods. It is therefore clear, after Rookes v. Barnard , that the proper explanation for the award of substantial damages in these cases is that the Plaintiff’s injury has been aggravated by the manner in which the Defendant has acted, and that, as elsewhere, exemplary damages can now be awarded only where the case falls within one of the three limited categories set out by Lord Devlin there.”

I am therefore of the view that exemplary damages cannot be awarded for wrongful distress.

The further question is whether exemplary damages can be awarded for the tort of conversion.

In Mayne and Mc Gregor on Damages 12th Edition para. 712 the learned authors state:

“It is generally said that exemplary damages cannot be recovered in conversion as opposed to trespass, on the ground that, as the gist of the action is the wrongful conversion and not the wrongful taking, damages may be recovered in trespass on account of a stage of the proceedings prior to that which can be noticed in conversion. This is not an adequate argument for refusing exemplary damages in conversion. If the conversion is by taking, then both trespass and conversion are available to the Plaintiff, and it would seem immaterial which action he brings for the purpose of exemplary damages: at least he could amend today to include trespass . If on the other hand, the conversion is not by taking so that there is no trespass, the case is not likely to present such a contumelious disregard of the defendant’s rights as to justifying a claim for exemplary damages.”

It is to be noted that this edition of Mayne and Mc Gregor was published in 1961. So that at that point in time it appears that there were no decided cases in which an award of exemplary damages was made for the tort of conversion. Relying on the ratio decidendi of A.B’s case , I therefore hold that exemplary damages cannot be awarded for the tort of conversion.

Both Attorneys have conceded that in a claim for trespass to goods the court can make an award of exemplary damages. I merely cite Cassell and Company Ltd v. Broome (supra) for emphasis. At page 860 Lord Wilberforce states:

“For particularly over the range of torts for which punitive damages may be given (trespass to person or property, false imprisonment and defamation, being the commonest)...”

The second Defendant and his fellow employees together with Coast Guard, police officers, a bailiff and his employees swooped down on the Yacht Club by land and sea in broad daylight for the purpose of seizing the said boat. This must have been in full view of the persons present at the Yacht Club. The second Defendant’s only source of information was unnamed boat owners whilst the bailiff, Edward Soon, said he was told something by deck hands. I have already commented earlier in my judgment on the discrepancy between these Defendants’ witnesses as to the source of their information. But the evidence in this case establishes that there were documents evidencing the transfer of ownership to the Plaintiff, that the Plaintiff exercised all acts of ownership with respect to the said boat, a position which was easily ascertainable if reasonable enquiries had been made of the Manager of the Yacht Club, Christopher Power, that B.I.R had in their possession the document from Yacht Club categorically stating that it was not possible from its records to know which of its members are owners of boats moored or stored there. The Defendant’s witness Ravi Shankar Bachan Chotak, a tax officer with Board of Inland Revenue, throws some light on the conduct of the Defendants and/or their servants and/or agents when he recounted his personal experience with taxpayers on whom a distress warrant had been executed. He stated:

“In previous cases, the taxpayer would go to anybody to pay taxes owed.”

It would appear that B.I.R decided, without making reasonable enquiries, that it would take a chance that this boat belonged to Francis Sa Gomes senior. As is stated in Clerk and Lindsdell on Torts para. 16-133 Ibid .:

“Wrongful execution of warrant: A constable, therefore, may be liable to an action of trespass or other tort though he is acting as he believes under the authority of a warrant..

(a) He may have executed it on the wrong person or the wrong property. However honestly mistaken, a constable cannot be justified if he arrests A in virtue of a warrant directed against B, or takes C’s goods under a distress against B;”

By analogy, the first Defendant, even though honestly mistaken, would gain no protection from the distress warrant if he takes, as I have found, the Plaintiff’s said boat under a distress against his father Francis Sa Gomes senior.

It would therefore appear that the Defendants were prepared to trample on the rights of a private citizen without making reasonable enquiries. As was stated in Rookes v. Barnard [1964] UKHL 1; [1964] 1 All E.R. 367 at 410G:

“In the case of the government it is different, for the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service.”

What is even more disconcerting in this matter is the conduct of the Defendants at trial. I am of the view that the Defendants’ witnesses were not being truthful when they said that the Plaintiff, at the Yacht Club, admitted to them that his father was the owner of the said boat. This was further compounded when the Defendants’ witnesses said that, at the Plaintiff’s home, he again admitted that his father was the owner of the said boat and/or admitted that Dr. Inalsingh was the owner of same.

Even Chotak sought to embellish the evidence when he stated in his evidence that when Hayes and he were there by the said boat, Hayes asked the two persons washing the boat who was the owner of the boat. They answered that Mr. Sa Gomes is the owner. After, they were asked if the owner was on the premises and they replied no, the son was [referring to the Plaintiff].

Chotak’s evidence was not supported by Hayes or Soon. Indeed Hayes’s evidence was to the effect that he enquired of the owner from the two persons cleaning the said boat and they pointed out a gentleman approaching [referring to the Plaintiff].

Again in Hayes’s examination-in-chief he stated that when the Plaintiff was speaking to him, he (the Plaintiff), said he was not the owner of the boat, technically his father was the owner. Finally Hayes stated that Christopher Power told him that he, (Power), was not sure if the Plaintiff was the owner of the boat and also that as far as he, (Power), was aware Francis Sa Gomes senior was the owner of the boat. I have also rejected that evidence moreso as it was not even suggested to Christopher Power in cross-examination that he said those things to Hayes.

Soon’s evidence was to the effect that Hayes and he spoke to two deck hands on the said boat and enquired as to the whereabouts of Mr. Sa Gomes and one of them left and came back with the Plaintiff.

I am therefore of the view that an award of exemplary damages ought to be awarded if only to punish and/or deter servants of the government from similar conduct in the future and/or to let the tortfeasor know that “tort does not pay” and/or to vindicate the strength of the law.

I am also of the view that this case falls within the first category of cases enumerated by Lord Devlin in Rookes v. Barnard namely, oppressive, arbitrary or unconstitutional action by the servants of the government.

I have looked at the range of awards made in exemplary damages within recent times and am of the view that an award of Fifteen thousand dollars (15,000.00) ought to be made in the instant case.

Although the Plaintiff’s evidence was that he had to take moneys out of a fixed deposit, no evidence was led as to the amount of interest payable on same. In addition the Plaintiff’s Attorney has conceded that no evidence was led to substantiate the Plaintiff’s claim for damages for breach of contract. In the circumstances there will be judgment for the Plaintiff.

I am grateful to both Attorneys for the assistance which they provided in reviewing the authorities on damages.

I therefore make the following orders:

(1) Payment of the said sum of Sixty-three thousand five hundred and sixty-two dollars and ninety-one cents ($63,562.91) by the Defendants to the Plaintiff with interest at the rate of six per cent per annum from 17th April, 1996 until the date of judgment herein.

(2) General Damages for trespass to goods, wrongful distress and conversion Nine thousand dollars ($9,000.00) with interest on the general damages at the rate of six per cent per annum from the date of the filing of the writ until the date of judgement herein.

(3} Exemplary Damages Fifteen thousand dollars ($15,000.00).

(4) Costs to be paid by the Defendants to the Plaintiff to be taxed in default of agreement.

Dated this 27th day of March, 1998

Prakash Moosai

Judge

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