September 10, 2010
High Court Judge blasts Chief Surveyor

Chief Surveyor Adolphus Ollivierre has received a tongue-lashing from High Court Judge Frederick V. Bruce-Lyle for attempting to mislead the court.{{more}}

The reprimand came in Bruce-Lyle’s judgment of High Court Civil Claim No. 334 of 2008, which pertains to the ownership of a Toyota Rav 4 motor vehicle, registration number P 2811; a case, in the judge’s view, which came to trial “as a result of a relationship gone sour.”

In the suit, the Claimant, Michele Morthely of Old Montrose claimed that the vehicle was given to her by her common law husband Loreston Primus, who only wrote to change the registration of the vehicle from her name because she had left him. Morthely’s suit names Ollivierre, a resident of Prospect, as the First Defendant and Primus, a resident of Diamond, as the Second Defendant.

The Court is of the view that Primus conspired with Ollivierre to mislead the Court, and in so doing, deprived Morthely of the use of her vehicle as she had to suffer the embarrassment of having the vehicle seized from her workplace.

In the judgement, delivered on August 6, 2010, the learned judge expressed the view that Ollivierre’s evidence is “riddled with serious contradictions” which he (the judge) regards to be “outright lies calculated to mislead this Court and also to assist the Second Defendant in his case against the Claimant.”

“For someone holding the position of Chief Surveyor in this country’s Civil Service to deliberately set out to mislead a Court of Law, leaves a lot to be desired,” Bruce-Lyle added.

Morthely, the Claimant, lived in a common law relationship with Primus at Mount Pleasant from 1998 up until the end of July 2007. According to court documents, the relationship between Primus and Morthely ended on July 25, 2007,when Morthely left their Mount Pleasant home .

The following day, July 26, 2007, Primus wrote to the Licensing Department claiming that P2811 was wrongfully registered in Morthely’s name, and that he had purchased the vehicle from Japan. He, therefore, requested that the Licensing Department cancel the registration of the vehicle in Primus’ name and put it in the name of Primus’ company, Yankee Girl Investments Ltd.

The Licensing Department, on reliance of Section 6(7) of the Motor Vehicles and Road Traffic Act, Chapter 355 of the Laws of St. Vincent and the Grenadines, amended the registration of the vehicle. However, while Justice Bruce Lyle agrees that it is within the Licensing Department’s purview to amend the registration “after all diligent enquires had been made”, he is of the view that the Licensing Department did not make all diligent enquires.

“In that regard, I consider their decision to amend the registration of the vehicle in issue just on the say-so of the Second Defendant to be arbitrary,” the judge said.

In an earlier claim, No 109 of 2008, Ollivierre, who “claims that he imports vehicles as a hobby for his friends,” sued Primus for monies which Ollivierre claimed Primus owed him for the vehicle, P2811. Primus did not contest that suit. In that suit, Ollivierre claimed that he had a bank statement evidencing that he purchased five vehicles from Japan, including P 2811. However, he failed to produce the bank statement. Morthely’s lawyer, Olin Dennie, submitted that the bank statement does not exist and that is why it was only referred to but not exhibited.

“I cannot hazard an opinion on this issue, except to say that the absence of this document goes to the issue of credibility,” Bruce-Lyle said.

Delivered the vehicle to Primus

Further in his evidence, Ollivierre claimed that he delivered P 2811 to Primus on July 3, 2007, but then in his statement of claim in Claim No. 109 of 2008 against Primus, he stated that he delivered the vehicle to Primus in October 2007. However, in his defence in the case filed by Morthely, Ollivierre stated that the contents of Claim No. 109 of 2008 are true.

“Coming from the same witness, which of the two versions and dates is this Court to believe?” Bruce Lyle asked.

The main thrust of Primus’ case was that he entered into a contract with Ollivierre to import the vehicle from Japan and Ollivierre was at all times the importer of the vehicle in question; and that Primus took possession of the vehicle and promised to pay the purchase price of EC$35,000, but failed to do so. Primus was of the view that Ollivierre is entitled to possession of the Rav 4.

Justice Bruce-Lyle in his judgement stated that the main issue for consideration of the Court is “Who was the purchaser of motor vehicle P 2811?” Was it Adolphus Ollivierre or Loreston Primus who was at the material time the common law husband of Michele Morthely?

The judge agreed with Morthely’s lawyer that in the absence of any documentary evidence that Ollivierre used his own money to buy the vehicle, the Court has to be guided by the Bill of Lading of the vehicle and the Law as it relates to Bills of Lading.

By virtue of the Bill of Lading dated 12th May 2007, the property in 1997 Model Rav 4 vehicle had passed to the Second Defendant (Primus) who was the consignee of the vehicle. “He had, therefore, in the eyes of the law paid for this vehicle and was entitled to take delivery of the vehicle and not the First Defendant (Ollivierre),” the judge said.

‘Clear instance of false representation’

“What has been presented to this Court by way of evidence, by the First and Second Defendants, amounts to a clear instance of false representation, that is, by asserting that the First Defendant was the owner of the vehicle. Both Defendants have not been forthright and truthful to this Court, more so the First Defendant, who being a Senior Civil Servant, Chief Surveyor of this State, ought to have known better than to contrive evidence calculated to mislead, and misleading the court.”

The judge also described as “preposterous” the defence put forward on Primus’ behalf that as he does not use the Internet, he could not have imported the vehicle via the Internet.

“A purchaser of a vehicle over the Internet does not have to use the Internet himself to have the vehicle consigned to him or her. Frankly, I am not convinced at all by the submissions made on behalf of the First Defendant and the Second Defendant by their respective Counsel and will have no regard to them, except to say this: It is unthinkable that Learned Counsel for the First Defendant will seek to introduce documentary evidence through attaching such documentary evidence to her written submissions, after the trial. I found such to be an insult to the Court as the Learned Counsel for the First Defendant knows too well that that is not allowable normal practice. I disregard her submissions on the law and the documents attached,” Bruce-Lyle said in his judgement.

“I am totally convinced that the Claimant has established her case against the First and Second Defendants on a balance of probabilities,” Bruce-Lyle concluded.

Judgement was, therefore, entered in favour of Morthely, who was awarded $35,000 to be paid by Ollivierre and Primus jointly. She was also awarded costs of $8,000 also to be paid by the two defendants jointly. In addition, the vehicle P 2811 was declared to be Morthely’s property. The counterclaim against Morthely of EC$49,000, filed by Primus, was dismissed in its entirety.

Ollivierre, the First Defendant was represented by Kay Bacchus-Browne, while Primus, the Second Defendant, was represented by Ronald Marks.