[1]Garnat George [2]Adolphus Small Claimants v Claudius Etienne Defendant [ECSC]

• Jurisdiction: St Lucia
• Judge: GEORGES, J.,Ephraim Georges
• Judgment Date: 01 September 2011
• Judgment citation (vLex): [2011] ECSC J0901-2
• Court: High Court (Saint Lucia)
• Docket Number: SLUHCV 2007/0698
• Date: 01 September 2011

[2011] ECSC J0901-2

IN THE HIGH COURT OF JUSTICE

SLUHCV 2007/0698

Between:

[1]Garnat George

[2]Adolphus Small

Claimants

and

Claudius Etienne

Defendant

On written submissions

1 GEORGES, J. [AG.]: This is an application for assessment of damages consequent upon entry of judgment in default of acknowledgment of service entered against the defendant on 11^th March 2008.

GEORGES, J.

Introduction

2 According to the statement of claim filed on 14^th August 2007 in or around Friday 19^th October 2006 the second claimant (Mr. Small) entrusted his motor vehicle registration number PC 2157 to the care and custody of the first claimant (Mr. George) for servicing purposes and in or around Sunday, 21^st October 2006 he got into an accident with the said motor vehicle and on the said day took it to the defendant's repair shop at Odsan, Castries for repairs with the full authorization of the owner Mr. Small who thereby he alleged acted as his agent.

3 According to paragraph 8 of the statement of claim it was orally agreed between Mr. George and the defendant (although this is denied by the defendant) that the defendant would deliver the repaired vehicle in three weeks and that Mr. George would pay him $5,725.00 which would include the cost of workmanship and replacement parts. In keeping with the terms of the agreement Mr. George deposited $4,400.00 with the defendant with the balance to be paid on delivery of the repaired vehicle in three weeks time.

4 In breach of the agreement it is alleged that the defendant failed to deliver the repaired vehicle as promised and has unlawfully detained it despite several demands by the claimant to repair and to release it. Mr. George further alleged that inspection of the vehicle by him around the first week of July 2007 revealed that parts of the engine were missing.

5 Damages are therefore claimed by the claimants for breach of contract detinue and conversion as follows:

Particulars of Special Damage

Value of car	$13,000.00
Money had and received for a consideration which has wholly failed	$4,400.00
Loss of use —260 days at $200.00 per day from 13th November 2006 —31st July 2007	$52,000.00
TOTAL	$69,400.00

In addition the claimants claim general damages costs interest and further or other relief.

Particulars of Special Damage

Observations

6 In perusing the file I noticed that the certificate of truth which accompanied theclaimants' statement of case was verified only by the second claimant Adolphus Small the owner of PC 2157 a 1994 Nissan Bluebird which he had purchased in January 2000 with a loan from CIBC Caribbean Limited. Part 3.12(1) of the Civil Procedure Rules (CPR) stipulates that every statement of case must be verified by a certificate of truth and CPR 13(12)2 requires that it should be signed by the party personally. CPR 3.13(1) states that the court may strike our any statement of case which has not been verified by a certificate of truth. No statement of claim has been verified by a certificate of truth by the first claimant Mr. Garnat George which would render the statement of case filed liable to be struck out on application by the defendant.

7 But the defendant in his affidavit in response to the second claimant's affidavit in support of his application for assessment of damages in default of acknowledgment of service filed 11^th April 2008 avers at paragraph 3 that he had absolutely no recollection of having received any claim form and statement of claim at any date prior to when he received the application for assessment of damages.

8 Turning to the claimants' affidavit in support of their application for assessment of damages the court notes that the affidavit is in fact sworn only by the second claimant Adolphus Small paragraph 1 of which states:

"1. That I am the second claimant and Deponent herein and I swear this affidavit also on behalf of Garnat George the first named Claimant." (My emphasis)

9 This is clearly unorthodox and irregular as Rule 30.2(c) CPR stipulates thatevery affidavit must be in the first person and state the name, address and occupation of the deponent and, if more than one of each of them. One cannot swear an affidavit on behalf of oneself and another. Besides that paragraph 2 is erroneous as the default judgment was entered in favour of both claimants (and not the deponent only) against the defendant for his failure to file an acknowledgment of service.

10 Similarly in paragraph 4 the deponent Adolphus Small avers that "we are entitled to recover the sum of $4,400.00 from the defendant as money had and received for a consideration that wholly failed" when the fact of the matter is that it is the first claimant Garnat George who in actual fact allegedly paid the advance of $4,400.00 as part payment to the defendant for the repairs to the damaged car which were to be done by him and which were allegedly not carried out and who would therefore be entitled to recover the part payment from him as money had and received for a consideration which has wholly failed since there was no contractual arrangement between the second claimant Adolphus Small and the defendant and no way could the first claimant be regarded as agent of the said Adolphus Small as stated in paragraph 7 of the statement of claim.

11 On the pleadings it is plain that the claimant Small has no cause of action against the defendant as at no time was any agreement made between them and all dealings and communications were with the claimant George who could not legally be labeled as the agent of Adolphus Small. Mr. George clearly contracted with the defendant in his own personal capacity.

Value of Damaged Car

12 When the claim was filed in August 2007 the claimants put the value of the Nissan Bluebird motor car at $13,000.00 without any empirical data or supporting documentary evidence. It was a 1994 second hand model when Mr. Small acquired it in January 2000 with a Bankplan loan of $18,000.00 from CIBC Caribbean Limited and it was thus 13 years old when suit was filed in August 2007. Following the...