republic of trinidad and tobago in the high court of justice claim no. cv2012- 01193...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CLAIM NO. CV2012- 01193

NO. FH 02258 OF 2012

BETWEEN

LYNETTE AURORA REID

Claimant

AND

WAYNE LESLIE REID

Defendant

Before the Honourable Mr. Justice Robin N. Mohammed

Appearances:

Mr. Lemuel Murphy for the Claimant

Mrs. Hyacinth Griffith for the Defendant

______________________________________________________________________________

JUDGMENT

______________________________________________________________________________

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A. INTRODUCTION

[1] The claimant, on 21 March 2012, filed a claim form together with a statement of case

against the defendant for detinue and/or conversion. The claimant claimed that the defendant has

either unlawfully destroyed, or unlawfully detained for his own use, goods owned by the

claimant. By her claim, the claimant sought the following relief of this court:

(i) the return of the goods or their value, namely TT$90,942.15;

(ii) damages for the detention of the goods;

(iii) interests on the damages;

(iv) costs; and

(v) such further relief as the court deems fit.

[2] On 20 June 2012, the defendant entered an appearance to the claim and statement of case

whereby he gave notice of his intention to dispute the claim. An amended appearance was filed

on 28 June 2012 which noted a minor change required to the form. Shortly thereafter, the

defendant filed his defence on 5 July 2012.

[3] The first Case Management Conference was held on 17 October 2012 before Kokaram J

who, on same date, transferred the matter to the Family Court Division on the basis that the said

claim arose out of the terms of a separation agreement which was the subject of previous divorce

and financial relief proceedings heard and determined before me.

[4] The matter was subsequently set for a Directions Hearing on 31 January 2013 which was

rescheduled to 12 April 2013 and later adjourned to 12 June 2013. Directions were given by the

court for the filing of submissions by the claimant and the defendant.

[5] Written submissions were filed on behalf of the defendant on 8 August 2013 and written

submissions were filed on behalf of the claimant on 1 October 2013. Further written submissions

were also filed by the claimant on 29 October 2014 and the defendant filed written submissions

in reply on 10 December 2014. The submissions of the parties dealt with the main issue arising

in the claim in respect of detinue and/or conversion. However, Ms. Griffith, counsel for the

defendant, raised a preliminary issue with respect to whether the claim constituted an abuse of

the court’s process.

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[6] Having read the submissions of both parties and reviewed the evidence before the court, I

am of the opinion that the claimant’s claim does constitute an abuse of the court’s process and it

should be struck out. However, for completeness, I have also canvassed the substantive issue

regarding detinue and/or conversion as detailed submissions were proferred by both parties. In

any event, however, I have concluded that the claimant has not satisfied this court of her claim in

either detinue or conversion and therefore the claim shall be dismissed.

[7] I have hereinafter detailed the reasons for this decision.

B. BACKGROUND

[8] The claimant is the former wife of the defendant. They were married on 19 January 1991.

However, on 24 August 2007 the defendant filed a Petition for divorce following two years

separation with consent, the parties having separated since 5 July 2004. The wife vacated the

matrimonial home in August 2007 and the parties entered into a separation agreement thereafter.

The separation agreement was executed on 14 August 2007.

[9] Interestingly, it was stated in the separation agreement that the intention of executing

same was to avoid unnecessary litigation, expense and embarrassment. Page 1 item (e) of the

agreement stated as follows:

“In view of their common intention to continue living separate and apart, the

husband and the wife desire by this Agreement to devise the best arrangement in

the circumstances, to resolve all rights and obligations relating to support,

maintenance and ancillary relief, to equitably divide and resolve all matrimonial

liabilities and assets, and to avoid unnecessary litigation, expense and

embarrassment. This is the spirit in which this Agreement should be interpreted

in the event of any problem arising in its implementation.” [Emphasis mine]

[10] The intention of the parties to avoid unnecessary litigation, expense and embarrassment

by virtue of the separation agreement was indeed commendable. However, it appears from the

multiple proceedings that have thus far been brought by the claimant, including the instant claim,

that the agreement was not successful in achieving that objective.

[11] On 9 October 2007 the wife filed an application for financial relief wherein she sought

the transfer of the matrimonial home, a motor vehicle, the transfer of Tuscany of Hilton Grand

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Vacations Club in Orlando, Florida, as well as an order for periodical payments. The separation

agreement dealt with each of these matters, nonetheless the claimant pursued the application.

The decree nisi was granted on 26 October 2007 and made absolute on the 3 December 2009.

The application for financial relief came up for hearing from time to time.

[12] While the decision regarding the claimant’s application for financial relief was still

pending, the claimant filed another application. On 25 February 2008 the claimant filed an

application in the Family Court seeking a protection order alleging domestic violence by the

defendant, inter alia, that on or about 30 September 2007 the defendant deprived the claimant of

access to the former matrimonial home. However, the facts were that the claimant had since the

August 2007 vacated the former matrimonial home. Moreover, by virtue of the separation

agreement she had agreed that while the business registered as “Yasmins”, land in Tobago, a

motor vehicle, a cellular telephone account as well as interest in a time share and bank shares

would be transferred in her name, the agreement was that the matrimonial home would be

transferred to the defendant. In those circumstances, the claimant’s application for the protection

order was dismissed.

[13] On 28 February 2008 the defendant sought an injunction in the High Court Proceedings

in the Family Court seeking to restrain the claimant from entering the former matrimonial home

and prohibiting her right to occupy same pending the hearing and determination of the financial

relief proceedings. On 4 March 2008, the claimant made yet another application in the

matrimonial proceedings, seeking an order that she be allowed to re-enter and occupy the former

matrimonial home and restraining the defendant his servants or agents from assaulting, molesting

or interfering with her until further order.

[14] Following the two failed attempts by the wife to forcibly re-enter the matrimonial home,

on 7 March 2008 the Court granted the husband an injunction against the wife restraining her

from entering, remaining, or occupying the matrimonial home and that she be prohibited from

exercising any right to occupy the matrimonial home pending the hearing and determination of

the financial relief application which, of course, included property settlement in relation to their

former matrimonial home.

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[15] On 21 November 2008 the court gave its decision in respect of the final determination of

the financial matters between the parties; the court found the separation agreement to be valid

and binding on the parties and a final order was made in terms of the parties’ separation

agreement. By this time the wife had failed to remove her items from the former matrimonial

home despite being asked to do so since the month of March 2008.

[16] It was agreed at clause 4 of the separation agreement that:

“The husband and the wife acknowledge that chattels-personal such as

furniture, appliance, decorations and household goods have already been

divided and distributed between themselves, and they hereby mutually

undertake and agree all such items together with their respective clothing

jewelry and other personal effects shall remain the absolute property of

the party in whose possession they now are.”

[17] Notably, at clause 9 of the separation agreement, both parties undertook to cooperate in

ensuring that all the obligations under the separation agreement were carried out. The agreement

thus specified:

“The husband and the wife mutually undertake and agree to take all

appropriate measures, whether general or particular to ensure the

carrying out of obligations arising out of this Agreement. In particular,

both parties agree to execute any and all supplemental documents to take

all reasonable steps to give full force and effect to the basic terms and

intent of this Agreement.”

[18] Moreover, it is noteworthy that at clause 17 of the agreement the claimant and defendant

acknowledged and agreed that:

“(a) they are entering this Agreement freely and voluntarily, free from any

duress constraint or influence of any kind or nature on the part of either;

(b) this Agreement may be referred to by the Court and may be

incorporated with full force and effect in any decree that may be entered

in any proceeding for the dissolution of their marriage;

(c) upon complete compliance of each other with the terms of this

Agreement and with any order made embodying or reflecting it neither

will make any further claims upon the other in any way whatsoever

including any claims upon his or her estate;

(d) the arrangements herein are the best that can be devised to suit their

common interests on a clean-break basis.” [Emphasis added]

[19] At the time of vacating the matrimonial home the wife took with her some of the agreed

items and left some behind at the matrimonial home.

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[20] In her statement of case under the rubric “Particulars of goods due under the separation

agreement”, the claimant detailed a list of 22 goods together with the value of each. The total

value of all the goods so listed was the sum of $55,334.90. She stated that those were the goods

which were referred to in the separation agreement under clause 4.

[21] In the statement of case, she further claimed that after the execution of the separation of

agreement but prior to the order of the court on 21 November 2008, she purchased 6 additional

items in anticipation of occupying a home separate from the parties’ former matrimonial home.

She listed those six goods and the value of each, the total value amounting to $28,733.80. The

claimant additionally claimed that subsequent to the separation agreement, the defendant

purchased a washer and dryer combo valued at $7,215.25 as part of the marital assets and gave

same to the claimant as part of and pursuant to the agreement.

[22] According to the claimant, all of the aforementioned goods which she claimed were

placed in the parties’ former matrimonial home pending the conclusion of the family

proceedings. However, on 7 March 2008 the defendant obtained an injunction preventing the

claimant’s return to the marital home and as a result the claimant was unable to retrieve the

goods.

[23] The defendant made no admission to the list of items alleged to have been left at the

former matrimonial home. Rather, he maintained in his defence that at no time during the

matrimonial proceedings did the claimant ever contend that she had returned to the matrimonial

home with the items listed in the claim or that she was by reason of the injunctive proceedings

forced to leave the specified items at the former matrimonial home.

[24] In fact, it transpired that from March 2008 to March 2009 several correspondences were

sent by the husband’s attorney-at-law requesting that the wife attend on the former matrimonial

home and recover the items belonging to her. However, the wife failed to do so.

[25] On 10 March 2008 the defendant’s attorney forwarded correspondence to the claimant’s

attorney to arrange a date and time for collection of the personal items from the matrimonial

home. On 27 March 2008 the claimant’s attorney, by letter, instructed that the claimant would be

unable to collect the items immediately and intended to do so after securing alternative

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accommodation. On 15 April 2008 the defendant’s attorney, by letter, instructed the claimant’s

attorney of the failure to collect the items which were being stored in the defendant’s garage

much to his inconvenience and requested that arrangements be made to attend to collect same.

[26] On 24 November 2008 correspondence was again sent by the defendant to the claimant

and her attorney advising the claimant to collect her personal items within seven days failing

which the defendant would regard the items as abandoned and proceed to dispose of them. The

claimant was also asked to propose a date and time for collection of same. On 25 November

2008, the defendant’s attorney was informed that the claimant was in the process of locating

storage for her personal items and would collect same when such storage was acquired. On 3

December 2008 the claimant’s attorney was informed that the defendant was not prepared to wait

indefinitely for the claimant to locate storage space to have her items removed. There was no

further response from the claimant to that letter.

[27] On 19 December 2008, the defendant again wrote the claimant asking her to collect her

items on or before 24 December 2008 and further informing her that failure to do so would result

in the items being put out of the premises on that same date. There was no response to that letter.

On 14 January 2009, the claimant through correspondence sent by her attorney stated that she

made arrangements to collect the items on or before the coming weekend. The claimant stated

that no response was sent by the defendant to that letter and she further stated that since an

injunction was in place against her visiting the marital home without prior arrangements she was

unable to remove the items.

[28] On 20 January 2009, the defendant informed the claimant via telephone conversation that

he had disposed of the items. By letter dated 13 February 2009 the claimant issued a Pre-Action

Protocol Letter against the defendant demanding the return of several items valued at Ninety

Thousand, Nine Hundred and Forty Two Dollars and Fifteen Cents ($90,942.15).

[29] By letter dated 9 March 2009 the defendant’s attorney responded to the claimant’s letter

stating that the defendant “makes no admission as to the list of items or their value and denies

that your client is entitled to the return of any or all of the items claimed”. The response also

stated that though the claimant had indicated that she would have attended to collect her items on

the 17th

to the 18th

January 2009, she did not so attend.

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[30] When the defendant failed to return the items to the claimant she filed the instant claim

on 21 March 2012 in the civil jurisdiction for detinue and/or conversion of the said items.

C. ISSUE TO BE DETERMINED

[31] Both a preliminary issue and substantive issue have arisen for determination by the

court in the instant claim, namely:

(i) The preliminary issue is whether the instant claim constitutes an abuse of process in

light of the fact that the claim was brought in the civil jurisdiction nearly three years

after the defendant is alleged to have refused to deliver the items in question, and the

matters brought into issue by the instant claim could and should have been raised

during the several proceedings in the Family Court; and

(ii) The sole substantive issue for determination is whether the petitioner’s claim for

detinue and/or conversion of the items allegedly left in the matrimonial home can be

sustained.

D. LAW AND APPLICATION

(a) Submissions

[32] It is the wife’s case that prior to the divorce proceedings the husband and wife entered

into a separation agreement which was subsequently held by the court to be valid and made an

order of the court on 21st November, 2008. In the separation agreement of the parties they both

agreed that those personal chattels such as furniture, appliances, decorations and household

goods have already been divided and distributed between themselves and agreed that all such

items shall remain the personal property of the parties. After the separation agreement the wife

alleges that she purchased other household appliances and items. Further that she stored these

items in the matrimonial home pending the conclusion of the divorce proceedings. According to

her she was unable to retrieve the items from the matrimonial because on 7 March 2008 the

husband obtained an injunction the existence of which prevented her from returning to the

matrimonial home to retrieve the items.

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[33] The wife alleges that she is the owner of the items and that she is entitled to ownership of

same. It is also her case that she made a formal demand for the return of the item but that the

husband failed to deliver the items to her. She therefore seeks damages for their detention.

[34] Attorney-at Law for the husband wrote several letters dated 24 March 2008, 3 March

2008, 10 December 2008, 19 December 2008 to the wife’s then attorney-at-law, Mr. Fulton

Wilson, requesting that the wife remove the items from the matrimonial home failing which the

husband would dispose of them. The wife’s then attorney-at-law wrote several correspondences

to the husband’s attorney-at-law advising that the wife will attend the matrimonial home and

collect the items on the 17 and/or 18 January 2009. However, the wife did not visit the

matrimonial home to retrieve the items despite being given several opportunities by the husband

to do so. Counsel for the defendant submitted that the instant claim is (1) an abuse of process; (2)

there is no evidence to support the allegation that the items claimed were ever left at the

matrimonial home at any time by the claimant; (3) there is no evidence to support the value of

the items alleged to have been detained by the defendant; (4) the delay of the claimant in

bringing this claim is unreasonable and there is no satisfactory explanation thereof; and (5) that

the claimant’s claim should be dismissed with costs.

(b) Law

[35] The preliminary issue begs the question as to whether the instant claim is an abuse of

process. Of course, the court has a continuous duty to ensure that its process is not abused by

litigants. This is established both in family and civil proceedings. In the instant matter, counsel

for the defendant submitted that the issue arising in the instant action was never raised by the

claimant in the matrimonial proceedings wherein there were multiple applications made by the

claimant against the defendant which were contended by the defendant to be intertwined with the

instant claim.

[36] The claimant usefully referred this court to the Court of Appeal decision of Trinidad and

Tobago Society for Prevention of Cruelty to Animals (TTSPCA) and anor. v. Sakal

Seemungal CA 181 of 2007. In that case Mendonça JA noted that the principle that where an

issue has already been decided by a court of competent jurisdiction it cannot be litigated again,

can also extend to other issues (not decided on) which properly belonged to the subject of the

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litigation and which the parties exercising reasonable diligence might have brought forward at

the time. To this end, at para. 27 of that judgment it is explained:

“27. Diplock LJ in Fidelitas [Shipping Company Ltd v V/O Exportchleb (1963)

1 Lloyd’s Rep 246] suggested that issue estoppel may extend to not only issues

that were actually decided but to every point which properly belonged to the

subject of the litigation and which the parties exercising reasonable diligence

might have brought forward at the time. This is best described as “Henderson

abuse” which takes its name from Henderson v Henderson (1843), 3 Hare and

is an authority for that proposition. However the scope of the ruling in

Henderson was restated in Johnson v Gore Wood and Company (a firm) [2001]

2 AC 1 where it was said that failing to raise a matter that could have been

raised in other proceedings does not necessarily render the raising of it in a

subsequent matter abusive. The Court should adopt “a broad-based merits

approach” and there will rarely be a finding of abuse unless the Court regards

the subsequent proceedings as unjust harassment of a party. Lord Bingham in

that case stated (at p. 498-499):

“The underlying public interest is the same; that there should

be finality in litigation and that the party should not be twice

vexed in the same manner. This public interest is reinforced

by the current emphasis on efficiency and economy in the

conduct of litigation, in the interests of the parties and the

public as a whole. The bringing of a claim or the raising of a

defence in later proceedings may, without more, amount to

abuse if the Court is satisfied (the onus being on the party

alleging abuse), that the claim or defence should have been

raised in the earlier proceedings if it were to be raised at all. I

would not accept that it is necessary, before abuse may be

found, to identify any additional element such as a collateral

attack on a previous decision or some dishonesty, but where

those elements are present the later proceedings will be much

more obviously abusive, and there will rarely be a finding of

abuse unless the later proceeding involves what the court

regards as unjust harassment of a party. It is, however, wrong

to hold that because the matter could have been raised in

earlier proceedings it should have been, so as to render the

raising of it in later proceedings necessarily abusive. That is

to adopt too dogmatic an approach to what should in my

opinion be a broad, merits-based judgment which takes

account of the public and private interests involved and also

takes account of all the facts of the case, focusing attention

on the crucial question whether, in all the circumstances, a

party is misusing or abusing the process of the court by

seeking to raise before it the issue which could have been

raised before.”

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[37] Thus there is good authority upon which a court may conclude that a claim constitutes an

abuse of the court’s process if the issue which is raised in a claim is one which could have been

properly raised in previous proceedings between the same parties. However, the court should be

slow in exercising its discretion to strike out a claim on this basis and ought to look to the

circumstances of the matter and consider whether subsequent proceedings can truly be regarded

as an unjust harassment of the defendant. Indeed, the instant claim is an appropriate one for the

application of the doctrine of issue estoppels as referred to in TTSPCA and anor. v Sakal

Seemungal (supra).

[38] I now turn to the substantive issue in the instant matter which concerns the torts of

detinue and conversion. Regarding the elements of a claim in detinue, the Privy Council in Sajan

Singh v Sardara Ali [1960] 1 All ER 269 at 272 adopting the elements of detinue as outlined in

Bullen & Leake's Precedents Of Pleadings (3rd Edn), p 312 expressed that in order to succeed in

a claim for detinue, it was essential for the claimant to show that he had the right to immediate

possession of the good claimed at the time of commencing the action, arising out of an absolute

or special property in it.

[39] Master Alexander relying on the explanation proffered by Diplock LJ in General and

Finance Facilities Ltd v Cooks Cars (Romford) Ltd [1963] 2 AER 314 stated in the case of

Hafeez Ali V Attorney General of Trinidad and Tobago CV 2010-01873 that an action for

detinue can be made ‘by a person with the immediate right to the possession of the goods against

the person in possession of the goods and who, in the face of a proper demand to deliver them

up, has failed or refused to do so without lawful excuse.’ [Emphasis mine]

[40] Thus, the elements of detinue which would have to be proved are that -

(i) the claimant is the rightful owner of the good(s) in question;

(ii) as a result of the claimant’s absolute or special ownership of the good(s), the

claimant had a right to immediate possession;

(iii) the goods are in the possession of the defendant and the claimant made a proper and

formal demand for the goods to be delivered up; and

(iv) subsequent to the formal demand by the claimant, the defendant failed or refused to

deliver up possession of the goods.

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[41] It is also noteworthy that in the case of Harry v Attorney General of Trinidad and

Tobago and ors. HCA No. 618 of 1996; TT 1997 HC, Warner J stated that -

“The defendant is liable in detinue although he had lost the goods before the

demand unless he proves he did not lose them through negligence (See Street on

Torts, 6th Edition page 59).”

[42] On the other hand, conversion consists of a positive wrongful dealing with the goods in a

manner inconsistent with the owner’s rights and an intention in so doing to deny the owner’s

rights or to assert a right inconsistent with them. There need not be any intention to challenge the

true owner’s rights. A demand and refusal is sufficient evidence of conversion: see Harry v

Attorney General (supra).

[43] In the case of Bostien v Kirpalani’s Ltd HCA No. 2490 of 1975; TT 1979 HC 113,

Deyalsingh J, referring to Clerk and Lindsell on Torts, accepted as true the law stated therein in

respect of conversion. The law was concisely explained as follows:

“Conversion is defined in Clerk and Lindsell on Torts (14th Edition) (end of pg 2) as

follows: "Conversion is an act of deliberate dealing with a chattel in a manner

inconsistent with another's right whereby the 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 his conduct is inconsistent with those rights; Para.

1077.

One form of conversion is conversion by keeping. Clerk & Lindsell (supra) puts it this

way: "Conversion by keeping: demand and refusal. Mere unpermitted keeping of

another's chattel is not a conversion of it. There must be some detention consciously

adverse to the rights of the owner. The ordinary way of showing conversion by

unlawful retention of property is to prove that the defendant, having it in his

possession, refused to give it up on demand made by the party entitled. Para. 1091.

I accept the above excerpts as a true statement of the law.”

(c) Application of the law to the instant matter

[44] I am of the opinion that the claimant’s claim does constitute an abuse of the court’s

process and should therefore be struck out. The claim of detinue and/or conversion was initiated

by the claimant more than two (2) years after the decree absolute was granted in December 2009

and more than three (3) years after the court had endorsed the separation agreement which is at

the heart of the claimant’s case of ownership to 22 of the items that she alleged were the subject

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of detention and/or conversion by the defendant. The family proceedings in this matter lasted

nearly two years and multiple applications were made therein, the majority of which were

initiated by the claimant in respect of (i) financial relief; (ii) a protection order; (iii) an injunction

to be allowed into the matrimonial home; and (iv) an application requiring the construction of the

separation agreement under the liberty to apply to work out the true construction of her

entitlement to annual points at the Hilton Grand Vacation Club. Then there was an application

by the defendant seeking to enforce the order for costs made in the substantive application for

financial relief which costs were taxed but not paid by the claimant. The defendant sought to

enforce the costs order by an application for the sale of the claimant’s land in Tobago which the

claimant had acquired as part of the settlement under the separation agreement.

[45] During the course of these several family proceedings, the claimant admitted that there

was much correspondence between the attorneys for both parties in respect of goods belonging to

the claimant, which the defendant requested the claimant to collect from the matrimonial home.

Yet, despite these multiple applications which the claimant took the advantage of filing during

the family proceedings, she did not raise any issue with respect to the marital and other personal

assets allegedly left at the matrimonial home which she now claims in the instant proceedings.

The claimant’s excuse that she could not have attended the matrimonial home to collect her

items because of the injunction preventing her from entering the premises cannot be accepted as

sound since the court, upon request, could have (and usually does in many cases), granted

concession for arrangements to be put in place for her to enter the home for the purpose of

collecting her belongings. And this concession could have been sought and granted at any of the

proceedings subsequent to the grant of the injunction.

[46] The issue arising in the instant proceedings is inextricably intertwined with issues which

arose in the matrimonial proceedings and there is no doubt that it would have been appropriate

for the claimant to raise the issue in those previous proceedings, even as part of the enforcement

of the judgment of the court in relation to her entitlement under the separation agreement. The

claimant had already, thus far, subjected the defendant to continuous litigation, for the most part

unsuccessful on her part. This is so despite the fact that the parties had executed a separation

agreement prior to the filing of the petition for divorce for the very purpose (as clearly stated in

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the separation agreement, page 1 clause (e)) of avoiding unnecessary litigation, expense and

embarrassment.

[47] Applying the principle as explained by Diplock LJ in Fidelitas Shipping Company Ltd

v V/O Exportchleb (supra) I am of the view that the issue arising in the instant claim “properly

belonged to the subject of the matrimonial proceedings and the claimant, exercising

reasonable diligence, might have brought it forward during those proceedings.” I have no

doubt that the instant claim is an unjust harassment of the defendant which ought not to be

condoned by this court. In the circumstance, I have concluded that the instant claim constitutes

an abuse of process and therefore ought to be dismissed.

[48] Despite my findings in respect of the preliminary objection, for completeness, I have also

canvassed the substantive issue regarding detinue and/or conversion since detailed submissions

on those points were proferred by both parties. However, I am also convinced that in respect of

the substantive issue, the instant claim is to be dismissed as the claimant has not satisfied this

court of her claim in either detinue or conversion.

[49] In order for the wife to succeed in an action for detinue she must establish that she has an

immediate right to possession of the goods and that a formal demand was made of the defendant

for the goods but he refused.

[50] The wife has exhibited six (6) receipts with respect to a Toshiba combo, 1 Seymour

ironing board, one Sharp Microwave Oven, one 44 V Frame, One ODD Sized Premier Plus

Divan, one JS Ghana Living Room Suite, and one 18 Cubic Feet Refrigerator. These items were

purchased in 2007. She also exhibited two other receipts which were unrecognizable. Of the six

receipts exhibited only three of them were made out in her name and while she was able to

demonstrate ownership of some of these items she has not demonstrated to this Court that these

items were indeed left at the matrimonial home. The husband has also denied that the wife left

those items claimed by her at the matrimonial home.

[51] However, the husband’s attorney in letter dated 24th

November, 2008 advised the wife to

‘collect her personal items and furniture from the premises failing which my client will regard

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same as abandoned and proceed to dispose of the items’. This indicates that the wife may have

in fact left some items behind. The question, therefore, to be determined in these circumstances

is what were these items? The wife has provided a list of these items but has not demonstrated

sufficient ownership of them. Further she has not demonstrated to the Court that the listed items

were in fact left in the matrimonial home. To invite the court to make a finding on whether she

did leave those items behind would be tantamount to an invitation to engage in speculation.

[52] The second limb which the wife must prove is that she has made a demand for the

husband to deliver up the items but he has failed or refused to do so without lawful excuse. On

the facts it is undisputed that it was the husband who persistently wrote to the wife’s attorney-at-

law requesting that the claimant attend the matrimonial home to retrieve her personal and other

items. But she never did. It was not until almost one (1) year after the first request was made for

her to remove the items that the husband finally decided to make good his threat and dispose of

the items. The wife then sent him a pre-action protocol letter demanding the return of the items.

[53] In light of the circumstances of the case, I am of the view that the proper question to be

determined is what is a reasonable timeframe for which the husband ought to have kept the items

in the matrimonial home after the wife vacated the premises? Is it reasonable to expect the

husband to store these items indefinitely? In my opinion it is not.

[54] The divorce of this married couple was based on the concept of a clean break. This was

clearly stated in their separation agreement which the court found to be binding. Once parties are

divorced it is hoped that their financial and other obligations will come to an end, there being no

children of the marriage. This concept allows parties to move on with their lives and gives them

the necessary time and space to grow and heal. The husband was very gratuitous in allowing the

wife to store her items in the matrimonial home after her departure. But this in no way means

that the husband must store these items indefinitely. The wife vacated the formal matrimonial

home in August of 2007. Since then those items would have been stored in the husband’s home

at his inconvenience. There is a need for fairness to be exercised between both parties and in my

estimation it would be rather unfair to expect the husband to store these items without any

definite moves from the wife to retrieve her items.

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E. DISPOSITION

[55] In light of all the above circumstances, the order of the court is as follows:

ORDER:

1. The claimant’s claim and statement of case filed on 21 March 2012 be and are

hereby struck out.

2. The claimant shall pay to the defendant costs of the claim to be quantified on the

prescribed scale which said costs have been calculated in the sum of $12,203.64.

Dated this 12th

day of March, 2015

__________________

Robin N. Mohammed

Judge

republic of trinidad and tobago in the high court of justice claim no. cv2012- 01193...

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