Garvey Hosten v Moises Thomas
|09 August 2023
|Judgment citation (vLex)
| ECSC J0809-2
|CLAIM NO. GDAHCV2022/0505 (formerly GDAHCV2017/0348)
|High Court (Grenada)
The Hon. Mde. Justice Agnes Actie High Court Judge
CLAIM NO. GDAHCV2022/0505 (formerly GDAHCV2017/0348)
IN THE SUPREME COURT OF GRENADA
AND THE WEST INDIES ASSOCIATED STATES
HIGH COURT OF JUSTICE
Ms. Alicia Lawrence for the Claimant
Ms. Danyish Harford for the Defendant
The claimant claims against the defendant for damages for breach of contract and/or negligence and/or breach of statutory duty arising from a motor vehicular accident on 4 th September 2016. The defendant counterclaims fraudulent misrepresentation and damages against the claimant.
The claimant is the proprietor of the business “Final Stop Auto Sales and Rentals”, renting motor vehicles to the public. By claim form filed on 11 th September 2017, the claimant avers that he entered into a written rental agreement with the defendant for a Toyota Rav4 Registration No. PAL270 (hereafter referred to as “the said vehicle”) for the period of 1 st September 2016 to 5 th September 2016. The claimant also avers that the defendant paid the sum of $345.00 which was solely for the rental of the said vehicle.
The claimant contends that it was an express term of the agreement that the defendant would be liable for the cost of repairs and loss of use occasioned by any collision occurring during the rental period.
The claimant asserts that on 4 th September 2016, the defendant negligently and recklessly drove the motor vehicular and collided into a railing/electric pole and then into a wall, which subsequently flipped over and landed on its roof. The claimant states that the said vehicle was severely damaged and was written off.
The defendant in his pleaded defence admits renting the said vehicle from the claimant for a period of three days from 2 nd September 2016 to 5 th September 2016 at the total rental fee of $330.00.
The defendant however challenges the purported rental agreement relied on by the claimant. The defendant denies signing any rental agreement and states that he was required to pay an additional fee of $500.00 for the insurance for the rental period. The defendant states that the claimant was indebted to him in the sum of $800.00, and that it was agreed that the deduction of $500.00 for the insurance be made from the amount owing to the defendant.
The defendant further avers that the claimant tampered with the purported rental agreement and contends that the claimant and/or his agents fraudulently created the Rental Agreement representing that the defendant signed same knowing that it was untrue. The defendant contends that he only signed a one-page yellow document at the bottom front of the page, with no writing at the back. The defendant contends that he never signed as agreeing to the terms stated on that second page which includes liability for cost of repairing the said vehicle if involved in an accident.
The defendant pleaded the following particulars of fraud:
(1) Inserting a signature on the rental agreement falsely representing it to be the defendant's;
(2) Inserting an incorrect fee on the rental agreement; and
(3) Scratching out several portions of original information on the Rental Agreement and replacing with information designed to deceive one into believing that the defendant affixed his signature to the rental agreement.
Further, the Defendant disputes the signature on the purported rental agreement where his name is spelt “Moises” Thomas. He states that the name written in the claimant's Rental Agreement, next to “Client's Signature”, is spelt “Moses Thomas”, leaving out the “i” and contends that he would not sign and leave out a letter from his name.
The defendant states that at all material times he understood, or was misled by the claimant to understand, that he (the claimant) was operating a Rental business which had insurance to cover any damage or losses incurred from accidents during the rental period.
The defendant further pleaded that it is public knowledge that Rentals in Grenada operate with the relevant rental insurance. The defendant states that he has also been renting vehicles from other persons and business places for years and knows from experience that all Rentals operate with insurance to cover damage/ loss incurred during the period a vehicle is rented out, and hence the reason why payments are made for the daily rental and an insurance fee.
The defendant further states that assuming, but not conceding; that the Defendant had signed the purported rental agreement it would be of no binding effect as at all material times, the claimant had a legal obligation to ensure that the said vehicle had the proper insurance to cover/bear loses incurred by a driver while operating the insured vehicle. The defendant contends that he having paid an insurance fee for the said vehicle would accordingly be protected from any liability.
The defendant argues that if the claimant did not have the correct type of insurance for the van, then he was operating his rental business contrary to law, negligently and/ or recklessly and must personally bear the responsibility and/ or liability for the losses incurred.
The defendant denies driving negligently as he suddenly had a blackout while driving and counterclaimed for, inter alia, damages for fraudulent misrepresentation and breach of contract; declarations; monies due and owing; such further or other relief and costs.
The claimant's claim is filed in the alternative namely breach of contract, negligence and breach of statutory duty.
The issues arising are whether there is a valid contract, whether the contract is void for illegality or in the alternative whether the defendant was negligent and breached his duty of care to the claimant resulting in damage to the said vehicle.
The only issue is whether the written contract relied on by the claimant is fraudulent and unenforceable as averred by the defendant.
The purported disputed terms of the agreement are at Paragraphs 12 & 13 of the purported contract which read:
“12. The client is liable and responsible to cover the cost of repair to the vehicle which may result from major or minor collision (or any other) occurring during the contracted period.
13. In the event of any damage done to the vehicle the client will be liable and responsible for the days in which vehicle was inaccessible to the owner or any other potential client.”
The question of whether a false representation was fraudulent is a question of fact 1, and it is for the defendant to satisfy the evidential burden of proving fraud as alleged.
The defendant at trial did not deny that he signed a document but stated that he signed on a blank last page. He did not produce that document which he at trial stated was left in the vehicle after the accident.
The defendant contends that the claimant and/or his agents fraudulently created the rental agreement representing it to be signed by the defendant. The defendant's main challenge to the purported contract is the omission of letter “i” from his first name “Moises” on the agreement.
On the other hand, the claimant denies the allegation of fraud by the defendant and called corroborating witnesses who personally witnessed the defendant's signing of the agreement.
At the trial, the witness Stephon Hosten, brother of the claimant, states that he usually solicits clients for his brother. He said he knows the defendant personally as the defendant had been a customer of the said business for more than four (4) years. He said that the defendant contacted him via telephone on 1 st September 2016 at about 5: 30 p.m. regarding the rental of one of the vehicles for the period 1 st to 5 th September 2016. He states that the $500.00 deposit was waived, and the defendant was permitted to have the use of the said vehicle for a further 24 hours without additional charge. He said that he contacted one, Denver Hosten, and instructed him to wait for the defendant, as the office was already closed for the day.
There are several obliterations, crossings and alterations on the face of the disputed contract relied on by the claimant. Some of the purported changes did not bear the initials of the defendant. The contract was also signed by the said Denver Hosten as “owner” of the business, however the claimant asserts that heis the owner of the business, and at trial it was revealed that Denver Hosten was a minor brother assisting the claimant in the business
Denver Hosten, in his witness statement and at trial admitted the crossings and obliterations. He said that he immediately obliterated the sum of $500.00 from the contract (under ‘deposits’) and corrected the figures under, the rubric ‘total rental charges’ and ‘total charges’. He states:
“I corrected the ‘total payment’ sum as well. Quite apart from the corrections to the figures on the contract, I did make a genuine error in writing the date out and date returned. These are not completely obliterated and so it is clearly visible that the dates were re—written for cosmetic reasons and not as corrections of errors contained in them”.
The witness states that all of the amendments to the said contract were made on 1 st September 2016 in the presence of the defendant who never objected to the corrections neither did he request to complete another contract.
The defendant denies that the purported document is what he allegedly signed as “he would not sign and leave out a letter from his name”. During cross examination, the defendant was consistent in saying that the only challenge he had with the signature was with the spelling of his name. The...
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