REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

CvA. No. 158 of 1998

                                                  BETWEEN

IVAN SOOKDEO                                                   APPELLANT                                 

                                                      AND

MOHAMMED Y. ALI                                           RESPONDENTS

AMENA Y. ALI

Panel:  R. Hamel-Smith, J.A.

             R. Nelson, J.A.

A.     Lucky, J.A.

Appearances:

             Mr. D. Sirjusingh for the appellant

             Mr. S. Parsad for the respondents

Date:   May 18, 2001

REASONS

Delivered by R. Hamel-Smith, J.A.

            After hearing submissions from both sides on May 14, 2001, the appeal was allowed and the Court indicated that it would give its reasons for so doing in due course. I do so now.

The short but difficult issue in this appeal is that the appellant is seeking to have this court interfere with the exercise of the judge's discretion in refusing to grant the appellant a short adjournment of the trial to allow him an opportunity to retain another counsel to present his case.

            What presents the difficulty is the fact that from a perusal of the file and from what counsel had told us from the bar table, it is quite obvious that, with or without an adjournment, the case for the appellant was poorly prepared. There was no statement on file from the witness the appellant intended to call from the Revenue Office nor was there a summons to secure his attendance at the trial. Further, notwithstanding the admission that the respondents were in possession of certain documents material to the appellant's case, there had been no discovery nor notice to admit or produce served on the other side. Some two months before the trial his instructing attorney indicated to the cause list judge that the case was ready for trial and would take one day. The judge accordingly fixed the trial for May 27, 1998.

Counsel was retained and briefed for trial. On the morning of May 27 however, when the matter was called, counsel was not in court. The appellant asked the judge to stand down the matter to allow him to locate counsel. Sometime later, counsel appeared and informed the trial judge that he was unable to present the case as he was on his legs in the Court of Appeal. He was allowed to leave the court, with the result that the appellant found himself without counsel. He immediately asked the trial judge to allow him an adjournment of one day to retain other counsel. The trial judge formed the view that the application was not a genuine one and in the interest of justice …should proceed…, he refused the adjournment. He then called on the appellant to present his case.

The appellant had no other choice but to comply. He gave evidence as best as he could. After being cross-examined, he closed his case without calling any witness or seeking to have any documents admitted into evidence to support his claim. The first defendant took the stand and refuted the appellant's claims. The appellant cross-examined him as best as he could. In the end, the trial judge was satisfied that the appellant had not proved his case and dismissed it. He fixed the costs at $20,000.00 against the appellant.

The trial judge, in rejecting the appellant's case, noted that the appellant had failed to produce any files, documents or invoices to support a case of professional services rendered or money lent. It is obvious from these observations that the case required some legal expertise in order to admit into evidence such documentary and oral evidence to show that the appellant had acted for the respondents in the claims by the revenue against the first respondent. As regards the claim for 'monies lent' the respondents were contending that the loans were in contravention of the Foreign Exchange Act as the appellant was not an authorised dealer in foreign exchange. Counsel before us submitted that it was not but, whatever the argument, the judge would certainly have required some assistance from counsel t o determine the issue.

The appellant's instructing attorney did not have the courtesy to attend on the appeal to explain his absence from the trial court or why the matter had been so poorly prepared. He chose, instead, to surrender the file to the appellant some two weeks before this hearing of the appeal, thereby placing the appellant in the further difficulty of having to go off in search of another attorney to represent him. It is little wonder that counsel had such difficulty filing his skeletal argument in time.

            It was against this background that this court had to decide whether it should interfere with the exercise of the trial judge's discretion to refuse the adjournment. This Court is well aware that it must be very slow to interfere with the discretion of the trial judge on such a question as an adjournment of a trial or, as in this case, the refusal to grant one. It will only do so in very exceptional circumstances where it appears that the result of the order to refuse the adjournment would be to defeat the rights of the affected party altogether and to cause an injustice to one or other of the parties.  

            The trial judge was obviously perturbed about the appellant's counsel's attitude in the matter. Counsel was indifferent whether the judge insisted on proceeding or not. As far as he was concerned, he had another matter in another court and under no circumstances was he going to do this trial. Counsel must have known that he was otherwise engaged and should have made other arrangements to have someone hold for him at the trial. Apparently he never considered this option. He simply abandoned the appellant at a crucial moment and left the trial judge with no alternative but to proceed in his absence.

The new dispensation is clear. With the introduction of the cause list, or at least the new approach to it, cases are reviewed by a cause list judge in the presence of both sides to insure that, if listed for trial, they will proceed on schedule. Applications for adjournments on the day of trial should therefore be a thing of the past and, if they do arise, will only be entertained for very good and substantial reasons. Counsel's reasons for his unavailability fell far short of this requirement. Consequently the trial judge can hardly be blamed for acting in the way he did.

In this case, it cannot be said that the appellant did not take the proper steps to ensure that his matter was heard on May 27. He had retained counsel for the trial and was totally dependent on his attendance and services. It was his counsel who let him down at the very last moment. The appellant would not have known that counsel would find himself elsewhere that day and simply abandon him. He rightly assumed that having retained him, he would be there to pr esent his case.

            In the final analysis, the appellant found himself alone when called upon to present his case. It is true that he is a tax consultant and has considerable experience in accounts but that does not qualify him to present evidence in a court of law, more so when he is opposed by counsel. I think that when all is weighed in the balance, as poorly prepared as the appellant's case was, the fact remains that counsel had abandoned him at the very last moment in the face of the Court.

The trial judge, in exercising his discretion, stated that "on previous occasions the plaintiff had been represented by counsel but on this occasion he came without counsel and in my view the application was not a genuine one…". It was not entirely correct to say that the appellant had come without counsel. Counsel did in fact appear but abandoned the appellant when called upon to begin the case. This placed the appellant in an invidious position, and, he indicated to the trial judge that he felt incapable of conducting the case in person. In my view, the trial judge ought to have given him an opportunity to retain other counsel by adjourning the trial for one day.. The respondents would have been inconvenienced but would have suffered no injustice. An order that the appellant pay the costs of the day would have been more than adequate compensation for any inconvenience caused.  

            I am of the view that the abandonment having taken place in the presence of the trial judge, he should have allowed the appellant, at the very least, one day's adjournment to retain another counsel to present his case. As untidy as it may have seemed on the pleadings, as inelegant as it may have been spelt out, the appellant was entitled to have his case presented by one trained to do so. A short adjournment would have caused no prejudice to either side.

It was in those circumstances that I agreed to allow the appeal with no order as to costs. The appellant would be put on terms, however. He must pay all the costs thrown away, certified fit for counsel, and must do so within three weeks of the issuance of the registrar's allocatur, failing which, the matter will stand dismissed with costs. On payment of those costs the matter can be re-listed for trial at the request of either party.  

R. Hamel-Smith
Justice of Appeal.

I agree with the order and reasons of the learned President and have nothing to add.

                                                                                                R. Nelson

                                                                                                Justice of Appeal

            I also agree.                                                               A. Lucky

Justice of Appeal.