Ronald Gittens t/a Almond Bay Caterers v The Management Commission of Parliament

• Jurisdiction: Barbados
• Judge: Master Deborah Holder, BSS
• Judgment Date: 06 February 2023
• Neutral Citation: BB 2023 HC 15
• Docket Number: Civil Suit No. CV0760 of 2019
• Court: High Court (Barbados)

BETWEEN:

Ronald Gittens T/A Almond Bay Caterers

Claimant

and

The Management Commission of Parliament

Defendant

Before

Master Deborah Holder, BSS, Master of the High Court

Civil Suit No. CV0760 of 2019

IN THE SUPREME COURT OF JUDICATURE

HIGH COURT

CIVIL DIVISION

Appearances:

Mr. Michael Yearwood, KC in association with Ms. Nicole Roachford, Attorneys-at-Law for the Claimant

Mr. Andrew Thornhill, KC in association with Ms. Shaddiah Hinds of George Walton Payne & Co., Attorneys-at-Law for the Defendant

DECISION

INTRODUCTION

1 The application was made pursuant to Rule 19.3 of the Supreme Court ( Civil Procedure) Rules 2008 (CPR). The Notice of Application with supporting affidavit were filed on 9 ^th October 2020.

2 The Claimant seeks the following:

“The Claimant be amended to add Heather Eileen Gittens, David Clarence Gittens and Gitco Incorporated.

That the new Claimant be: Ronald Gittens, Heather Eileen Gittens, David Clarence Gittens and Gitco Incorporated trading as Almond Bay Caterers.”

3 “The grounds of the application are:

• 1. That Heather Eileen Gittens, David Clarence Gittens and Gitco Incorporated are co-owners of the business named Almond Bay Caterers and trade as such.

• 2. An Affidavit is filed with this application.

• 3. That the addition of Heather Eileen Gittens, David Clarence Gittens and Gitco Incorporated would allow all matters in dispute between the parties to be concluded.”

Background

4 The Claimant carries on a business under the name Almond Bay Caterers and the Defendant is a statutory corporation with registered offices at Parliament Building, Bridgetown.

5 The Claimant alleged that he suffered loss and damage as a result of breach of contract. He claimed loss of profit, interest and costs.

6 The Claim form and Statement of Claim were filed on 4 ^th June, 2019. The affidavit of service was filed on 18 June 2019, the acknowledgement of service of claim form was filed on 28 June 2019, Notice of Default Judgment was filed on 1 ^st October 2019 and the Defence was filed on 22 ^nd October 2019.

7 The Statement of Claim is as follows:

• 1. “The Claimant carries on a business pursuant to the Registration of Business Names Act Cap. 317 of the Laws of Barbados at Hastings Main Road in die parish of Christ Church in this Island under the style and name Almond Bay Caterers.

• 2. The Defendant is a Statutory Corporation established pursuant to the Parliament (Administration Act Cap 10 of the Laws of Barbados and having it[s] registered office at Parliament Building, Bridgetown.

• 3. By written agreement dated the 18 ^th day of December, 2013, the Claimant agreed to provide catering services and continued supply of meals to the Defendant for the sitting of Parliament of Barbados for the period ending 31 ^st December, 2016 upon the terms and conditions set out therein.

• 4. By further written agreement dated the 1 ^st day of January, 2017, made between the parties. The Claimant agreed to provide to the Defendant meals to the sitting of Parliament for the period ending 1 ^st January, 2017 to the 31 ^st December, 2020.

• 5. On or about the 25 ^th day of May, 2018 the Defendant informed the Claimant that his services will no longer be required under the terms of the contract.

• 6. Further and in breach of the said contract the Claimant [sic] has neglected refused or allowed the Claimant to provide the meals to Parliament as agreed.

• 7. As a result of the aforesaid breach of contract the Claimant has suffered loss and damage.”

8 The Defence is as follows:

• “1. Paragraph 1 of the Statement of Claim is neither admitted or denied because the Defendant does not know whether it is true.

• 2. Paragraph 2 of the Statement of Claim is admitted.

• 3. No admission is made with respect to paragraph 3 of the Statement of Claim.

• 4. Paragraph 4 of the Statement of Claim is denied. The Defendant states that the purported agreement dated the 1 ^st day of January 2017 (the “Alleged Agreement”) was not executed by the Defendant nor with its knowledge or approval. Further or alternatively, the Alleged Agreement purports to be an agreement for the supply of services at a rate of tax below the applicable rate of value added tax prescribed pursuant to the Value Added Tax Act, CAP 87 of the Laws of Barbados and in contravention of the said Act and is thereby unenforceable. Further or alternatively, the Defendant states that the Alleged Agreement was void for public policy by reason of the following:

  • a. The Alleged Agreement was prepared by the then Speaker of Parliament and signed at his direction without the knowledge or approval of the Defendant;

  • b. The Alleged Agreement purports to award a public contract to the Claimant without a tender process in circumstances where the Claimant knew or ought reasonably to have known that the Defendant required the said contract to be put to tender and that this was not done; and/ or

  • c. The Alleged Agreement purports to be an agreement for the supply of services at a rate of tax below the applicable rate of value added tax prescribed pursuant to the Value Added Tax Act, CAP 87 of the Laws of Barbados.

• 5. Paragraph 5 of the Statement of Claim is admitted.

• 6. As to paragraph 6, the Defendant denies that it has breached the Alleged Agreement and repeats paragraph 4 hereof.

• 7. Paragraph 7 of the Statement of Claim is denied. The Defendant avers that it did not breach any agreement with the Claimant and repeats paragraph 4 hereof. Further, the Defendant denies that the Claimant has suffered loss as alleged or at all and puts the Claimant to strict proof thereof.

• 8. Save as hereinbefore expressly admitted, the Defendant denies every allegation set out in the Statement of Claim as if the same had been set out seriatim.”

The Claimant's Affidavit

9 The Claimant said that he was one of the owners of Almond Bay Caterers and a director of Gitco Incorporated. Gitco was incorporated under the Companies Act, Cap. 308. He was authorised by the other owners of the business namely Heather Eileen Gittens, David Clarence Gittens and Gitco Inc. to make the affidavit. The Claimant and the named parties traded under the name Almond Bay Caterers since 15 ^th August, 2005.

10 The Claimant said that the name was registered under the Business Names Act, Cap. 317 on 18 ^th February 2020 but effective from 15 ^th day of August 2005. He also said that by agreement dated 1 ^st January 2017 Almond Bay Caterers entered into a contract with the Defendant for the provision of catering services to the Defendant.

11 In response to paragraph 3 of the Defence where it was stated that the agreement was unenforceable, he deposed that by letter dated 12 ^th May 2016, the Barbados Revenue Authority granted Gitco Inc. permission to charge a rate below the applicable rate set out for the supply of services.

12 He further deposed that because the Defendant raised the issue of unenforceability, Gitco Inc. had an interest and direct connection to the claim as co-owner of Almond Bay Caterers. The other co-owners Heather Gittens and David Gittens also had a similar interest and as such they ought to be added as parties to these proceedings.

The Submissions

13 The parties provided both written and oral submissions.

The Claimant's Submissions

14 Mr. Yearwood submitted that the Claimant had complied with all the procedural requirements set out in Rule 19.3 of the CPR in that the supporting affidavit and consent of the persons wishing to be joined were filed at the Registry.

15 Further, in exercising its discretion the court had to be guided by Rule 19.2(3). Although this rule spoke to joinder without application the considerations in that rule should apply to a case where the application was made. The case Mr. Fok Hei Yu and Mr. John Howard Batchelor v Basat Inc., Accufit Investments Inc. and Double Kev International Ltd. BVIHC MAP 2014/0010 from the Eastern Caribbean Court of Appeal was cited in support.

16 Counsel submitted that the foremost question for the court was whether the addition would allow the court to resolve an issue and bring complete resolution to the dispute between the parties. He cited Barrineton Dixon v Aneella Runte and Anthony Depaul Civil Appeal No. 105/08 from the Court of Appeal of Jamaica.

17 Counsel submitted that the order for joinder should be granted because the applicants were all owners of the business named Almond Bay Caterers. The addition of the parties would allow the court to resolve the issue between the owners of the business on the one hand and the Defendant. If the court refused, each party would have to bring a separate action for breach of contract against the Defendant resulting in a multiplicity of actions in respect of the same breach.

18 It was argued that because the Defendant raised the issue of the validity of the contract (see paragraph 4 of the Defence) Gitco's presence would allow the court to examine the letter granted to it from the Barbados Revenue Authority (BRA) to determine whether the contract was void as alleged and whether the letter extended to Almond Bay Caterers. The resolution of this issue was integral to the resolution of the dispute.

19 Ms. Roachford contended that the issue of the validity of the contract raised by the Defendant was not relevant to the application for joinder, rather it was a matter for trial of the substantive matter. Joining Claimants was an issue of justice and whether it was necessary for the proper determination of issues.

20 She said that it was not disputed that the contract was signed solely by one party, Mr. Ronald Gittens. She contended that he acted as an agent of the partners and therefore they had an interest in this matter. If they were successful they would be entitled to the benefits of the contract and if they lost they would be “touched in their pockets”. She referred to the definition of “firm” in the Registration of Business Names...