Tivoli claim tossed

Two joint owners of several businesses in Tivoli Gardens, Kingston, have been denied compensation for losses allegedly suffered during the 2010 security forces operation, including cash said to total nearly $1.7 million and cell phones, after the High Court ruled their claim was filed too late.

Supreme Court Justice Dale Staple found that the claimants, Barbara Joiles and her son Vallin, failed to notify the attorney general of their claim within six months of the losses or the date the Emergency Powers Regulations came into force, rendering their case statute-barred.

The court also found that there was no credible evidence to support the claim that money or other items were missing or stolen.

The Joiles had sought damages for property destruction, loss of income, and missing goods, including cash, meat, and items from a phone and accessories store, a restaurant, a bar, and a meat shop.

They alleged that the Jamaica Defence Force (JDF) and the Jamaica Constabulary Force (JCF) had forcibly entered and occupied their premises on or before May 23 to June 13, 2010, during the May 2010 operation to apprehend fugitive Christopher ‘Dudus’ Coke.

Failed to follow proper procedure

The claimants also argued that the statutory immunity under the Emergency Powers Regulations should not shield the security forces if their actions were malicious or exceeded their authority, and sought compensation for losses, including $4.4 million in projected business income and damage to over 40 assets.

However, the court ruled that the claimants failed to follow the proper procedure for seeking compensation under the regulations and provided insufficient evidence to show that the security forces acted unlawfully, maliciously, or outside their statutory authority.

The claim was filed in May 2016, following years of correspondence between the claimants and the JDF, to whom they had written seeking compensation. The Joiles also sued the State for breach of statutory duty under the Emergency Powers Regulations, trespass to goods, and, in the alternative, conversion.

However, in a judgment delivered recently, Staple ruled that while the failure to plead bad faith did not automatically invalidate the claim, the central difficulty for the claimants was their non-compliance with the statutory notification requirements.

“The claimants’ claim for compensation was statute-barred as a consequence of their failure to notify the attorney general of their claim for compensation within six months of the claim arising or of the date of the regulations coming into force,” Staple ruled.

He further found that the claimants failed to show that the actions of the security forces were carried out maliciously, without reasonable or probable cause, or in breach of any statutory duty.

“The claimants have also failed to satisfy me, on the balance of probabilities, that their claims for trespass to goods and conversion have been established on the evidence,” the judge said.

In explaining why the claims failed, Staple pointed to significant deficiencies in the evidence presented by Vallin Joiles, the only claimant present at the premises when the security forces arrived.

The judge rejected Vallin Joiles’ account of the entry and search of the building, accepting instead the evidence of military witnesses that the premises were lawfully seized to establish elevated firing and observation positions while troops were under sustained gunfire.

Staple ruled that the decision to breach metal doors and disable the standby generator was operationally justified. He accepted evidence that the generator created excessive noise that interfered with soldiers’ ability to hear gunfire and identify hostile threats, and found that it was shut off before Joiles was encountered inside the building.

The court also rejected Vallin Joiles’ claim that he offered keys to the premises, finding that the security forces had already accessed the building and roof a day earlier. The judge noted that Vallin Joiles was monitoring events on CCTV but failed to alert the troops to his presence, which undermined his credibility.

On the issue of missing cash, Vallin Joiles testified only to losing the sum of $1,067,000, a claim which the court rejected, noting that he had failed to say where the money was kept, whether it was secured, or how access was gained.

“I do not accept that any reasonable business person in Jamaica would have cash of that amount simply lying around in an unsecured location, easily accessible to anyone to come and take,” Staple said.

While the court accepted that meat and other items in cold storage were lost, the judge ruled that malicious or unlawful acts by the security forces did not cause the losses. He also rejected the valuation placed on the spoiled items, citing the absence of invoices or supplier records.

“Even if the original invoices had been lost due to the incident, their suppliers or other suppliers could have provided invoices,” the judge noted.

Claims for lost business income, including the asserted $4.4 million over 20 days, were also dismissed due to the lack of supporting tax records, GCT filings, sales logs, or accounting documents.

“I am not disputing the capacity so to do. I am saying that they have provided no proof of this,” Staple said.

Similar findings were made in relation to alleged losses from the bar, restaurant operations, phone business, and more than 40 listed assets. The judge also found no evidence that damage to the bar was deliberately caused by the security forces, noting that the area was the scene of intense gunfire.

Staple further found no evidence explaining how or why water tanks, televisions, battery supplies, computer equipment, surveillance equipment, and other electronic devices were allegedly lost. He also noted that neither Vallin Joiles nor his mother claimed in their witness statements that phones were missing from the phone shop, only that income was lost.

In assessing credibility, the judge said the testimony of the security force witnesses was generally reliable and consistent, despite some “Nelsonian memory” lapses, which he attributed to the passage of time.

The defendant had argued that entry onto the premises was lawful under the Emergency Powers Act and Regulations, and that the claimants could not have operated their businesses during the period, because of the sustained gunfire in the area.

They further contended that the claimants were not entitled to any relief under the Emergency Powers Regulations, insisting that compensation should have been pursued through the statutory mechanism established under the regulations and that the time limit for doing so had long expired.

The Joiles were represented by attorneys Stacy Knight and Andre Moulton, instructed by Knight Junor & Samuels, while Stephen McCreath was instructed by the director of state proceedings for the defendant.

tanesha.mundle@gleanerjm.com