Rattansingh v. Attorney General of Trinidad and Tobago & Anor (Trinidad and Tobago) [2004] UKPC 15 (2 March 2004)

	Privy Council Appeal No. 41 of 2003

Carlton Rattansingh (Legal personal representative of the
estate of Joseph Rattansingh)	Appellant
	v.
(1) The Attorney General of Trinidad and Tobago and
(2) Kanadhar Doopan (Comptroller of Customs and Excise)	Respondents

	FROM

THE COURT OF APPEAL OF
TRINIDAD AND TOBAGO
	---------------

	REASONS FOR DECISION OF THE LORDS OF THE
	JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF THE
2nd March 2004, Delivered the 17th March 2004
	------------------

	Present at the hearing:-
			Lord Bingham of Cornhill
Lord Steyn
Lord Hope of Craighead
Lord Rodger of Earlsferry
Lord Carswell
		  	[Delivered by Lord Bingham of Cornhill]
	------------------

1. 	At the conclusion of the hearing on 2 March 2004 the Board dismissed this appeal.  It now gives reasons for that decision.

2. 	On 10 August 1998 the appellant, as legal personal representative of the estate of the late Joseph Rattansingh, issued proceedings in detinue and conversion claiming the return of 3016 motor car tyres or their value, and a declaration that they were the property of the appellant.  In the course of pleading, the respondents amended their defence to plead that the appellant’s cause of action was statute-barred by section 5 of the Limitation of Personal Actions Ordinance Ch. 5 No 6.  An issue was ordered to be tried whether or not the appellant’s claim was statute-barred, and this issue was determined adversely to the appellant by Jamadar J on 3 April 2000 and by the Court of Appeal (Sharma and Warner JJA, Lucky JA dissenting) on 11 April 2002.  The question before the Board was whether that issue was correctly decided.

3. 	No oral evidence was called at the trial and there was no dispute on the facts.  The tyres in question were imported into Trinidad and Tobago, it seems by Farouke Warris, who sold them to the late Joseph Rattansingh.  Between 17 July and 3 August 1984 they were seized and detained by the second respondent.

4. 	In seizing the tyres, it appears that the second respondent acted in pursuance of section 206 of the Customs Act Ch 78.01, which provided:
“206.	If an Officer has reasonable cause to suspect that any uncustomed or prohibited goods, or any books or documents relating to uncustomed or prohibited goods, are harboured, kept or concealed in a house or other place in Trinidad and Tobago, and it is made to appear by information on oath before a Magistrate or Justice in Trinidad and Tobago, the Magistrate or Justice may by special warrant under his hand authorise the Officer to enter and search the house or other place, by day or by night, and seize and carry away any uncustomed or prohibited goods, or any books or documents relating to uncustomed or prohibited goods as may be found therein; and the Officer may, in case of resistance, break open any door, and force and remove any other impediment or obstruction to such entry, search or seizure.”

5. 	The second respondent notified the deceased of the seizure in a formal written notice dated 15 October 1984, advising him of his right to claim the goods by written notice within one month.  By letter dated 12 November 1984 a solicitor representing the deceased duly gave such notice of claim.  Up to this point, the second respondent and the deceased were acting broadly in accordance with section 220 of the Customs Act, which provided:
“220. (1)  Whenever a seizure is made, unless in the possession of or in the presence of the offender, master or owner, as forfeited under the customs laws, or under any written law by which Officers are empowered to make seizures, the seizing Officer shall give notice in writing of the seizure and of the grounds thereof to the master or owner of the aircraft, ship, carriage, goods, animals or things seized, if known, either by delivering it to him personally, or by letter addressed to him, and transmitted by post to, or delivered at, his usual place of abode or business, if known; and all seizures made under the customs laws or under any written law by which Officers are empowered to make seizures shall be deemed and taken to be condemned, and may be sold or otherwise disposed of in such manner as the President may direct, unless the person from whom such seizure shall have been made, or the master or owner thereof, or some person authorised by him within one calendar month from the day of seizure, gives notice in writing to the Comptroller that he claims the thing seized, whereupon proceedings shall be taken for the forfeiture and condemnation thereof; but if animals or perishable goods are seized, they may by direction of the Comptroller be sold forthwith by public auction, and the proceeds thereof retained to abide the result of any claim that may legally be made in respect thereof.

   (2)  Where proceedings are taken pursuant to subsection (1) for forfeiture and condemnation, the Magistrate may order delivery of the aircraft, ship, carriage, goods, animals or things seized to the claimant, on security being given for the payment to the Comptroller of the value thereof in case of condemnation.”

Unfortunately, the second respondent did not, as the section required, take proceedings for the forfeiture and condemnation of the tyres.  In the opinion of the Board, the taking of such proceedings within a reasonable time was a necessary condition of the second respondent’s right to continue to detain the goods.  But no such proceedings were taken within a reasonable time, or at all.

6. 	The second respondent did not, as section 220 required, notify the deceased of the grounds on which the goods had been seized. But it seems clear that import licences relating to the goods were thought to have been forged, and the deceased and Farouke Warris were charged with conspiracy to defraud the Customs and Excise Department of Trinidad and Tobago by the provision of forged import licences.  On 28 March 1988 this charge of conspiracy was dismissed against both defendants and the deceased was discharged.  Farouke Warris was, however, committed for trial on two counts of forgery, contrary to section 7 of the Forgery Act, Ch. 11:13, and two counts of uttering forged documents contrary to section 9(1) of the Forgery Act. These four charges came before Persad J nearly 10 years later, on 16 February 1998, when the prosecution were unable to proceed and the charges were formally dismissed.

7. 	By letters dated 27 July and 17 October 1990 the solicitor representing the deceased wrote to the second respondent requesting the return of the tyres.  Neither of these letters was answered.  Neither then, nor at any time since, has the second respondent (or, since his involvement, the first respondent) asserted any right to detain the goods.  All the evidence suggests that the goods were the property of the deceased, and this has never been questioned.  He had an immediate right to possession.  He made a demand for the return of the goods.  The second defendant did not comply with that demand.  The deceased’s cause of action was complete on expiry of a reasonable time after the deceased’s first demand on 27 July 1990, as both the judge and a majority of the Court of Appeal correctly held.

8. 	Section 5 of the Limitation of Personal Actions Ordinance Ch 5:06 provides:
“5.  All actions for the recovery of any chattel or moveable thing, or the possession thereof, all actions founded upon any simple contract without specialty, all actions for damage or injury to persons or property, and all personal and mixed actions whatsoever, shall and may be commenced and sued within four years next after the cause of such actions, and not after; except, nevertheless, all actions by this Ordinance otherwise specially provided for, and except also all actions of assault, battery, wounding, imprisonment, or any of them, and all actions of libel and slander, which said actions of assault, battery, wounding, imprisonment, libel, and slander, shall be commenced and sued within two years next after the cause of such actions, and not after.”

Applying this section, the judge and a majority of the Court of Appeal held that the four year time limit began to run against the deceased on 28 August 1990, a month after the first letter of demand, and expired on 28 August 1994, nearly four years before proceedings were commenced.  On 24 March 1994 the deceased died, and letters of administration were in due course issued to the appellant, but it was not suggested that these events had any bearing on the limitation issue.

9. 	Following the dismissal of the charges against Farouke Warris in February 1998, the appellant’s solicitor, on 10 March 1998, wrote a further letter demanding the return of the goods.  The second respondent replied that attempts were being made to locate the tyres, and that he was liaising with the Office of the Director of Public Prosecutions regarding their release. A further communication was promised but was not forthcoming, and the appellant issued proceedings.

10. 	The appellant relied on three grounds to seek to overcome the problem posed by the statutory bar.  First, it was said that the prosecuting authorities had been entitled to retain the tyres in 1990 as evidence in the continuing case against Farouke Warris.  This ground was abandoned in the course of argument, and rightly so. The existence of the tyres cannot have been in issue in the prosecution of Farouke Warris on the forgery counts.  The issue was whether he had forged and uttered the licences.  He was not very likely to challenge the existence of the tyres.  Significantly, no such claim was advanced at the time.

11. 	Secondly, it was said that the prosecuting authorities had been entitled to detain the tyres pending the trial of Farouke Warris on the forgery counts as the fruits of his alleged crime.  Again, this was not a ground advanced at the time, and again it is untenable, since the fruits of this crime (on the assumption that a crime had been committed) were not the tyres but the very substantial sale price which Warris had received.  It is not at all clear how the conviction of Warris could have justified the confiscation of property lawfully acquired for value by the deceased.

12. 	Thirdly, it was said that the appellant was entitled to rely, by way of constitutional relief, on the guarantee in section 4(a) of the Constitution of Trinidad and Tobago of the right of the appellant to enjoyment of property and the right not to be deprived thereof except by due process of law.  No such claim was pleaded or argued before the judge, who did not address it.  No reference was made to constitutional relief in the grounds of appeal and this question was not explored in the Court of Appeal.  It made its first appearance in the appellant’s written Case before the Board.  Only exceptionally would the Board consider it right to entertain a claim for constitutional relief on which the domestic courts had had no opportunity to pronounce, and there is nothing exceptional in this instance.  If this was a potentially meritorious plea, it could and should have been raised much earlier.  Having heard no detailed argument, the Board would be unwise to express any view on the merits of the claim.  It would however observe that statutes of limitation operate in all developed legal systems, and it is not obvious that the barring of a claim to recover property on expiry of a reasonable limitation period amounts to the deprivation of property otherwise than by due process of law.

13. 	On behalf of the appellant, Dr Ramsahoye SC eloquently invoked the hardship to the appellant of losing property of very considerable value to the advantage of the state.  The Board is sympathetic to this plea, as (it is understood) the Court of Appeal was.  But the issue for decision is a pure question of law to which, in the opinion of the Board, there is but one answer, and that must be adverse to the appellant.

14.	For these reasons the Board dismissed the appeal.  The respondents made no application for costs.