On a technicality, the case against Mohommid Lavia, a police officer in the St. Vincent and the Grenadines Police Force was dismissed by Acting Registrar Tamara Gill in a ruling recently.
It was alleged that on March 3, 2019 at about 3:00 am that Officer Lavia pelted a bottle at Mr. Okeno Fergus while he was leaving a fete and bingo in Sandy Bay.
The bottle missed the intended target at which time Mr Fergus further alleged that Lavia pulled out his gun from his waist and shot him in his left leg thereby causing injury.
Lawyer Jomo Thomas brought a case for Damages against the Attorney General and Officer Lavia but the case could not proceed due to requirements by the law to deliver a notice in writing of the intended action on each defendant.
Section 3 of the Crown Proceedings Act states:
No action shall be brought against any public officer for anything done, or purported to be done, in the exercise of his office unless and until two calendar months after notice in writing has been delivered to him or left at his usual place of residence with some person there, by the party who intends to bring such action or his legal practitioner or agent, and in every such notice shall be clearly and explicitly stated –
(a)the cause of action;
(b)the name of the person who is bringing the action; and
(c)the name and address of his legal practitioner or agent, if any,
and no evidence of the cause of action shall be produced, except in so far as the cause of action has been spelt out in the notice.
The court noted that initially Officer Lavia had sworn by affidavit that he was not served with the notice of the intended action. However, at the hearing, the defendant represented by Mrs Cerepha Harper-Joseph did not challenge the affidavit evidence of High Court Bailiff Mr Marvin Mulcaire that he did indeed serve Officer Lavia.
The remaining issue related to the Attorney General who maintained that he was not served with the notice as required by law.
The court heard hearsay evidence which it did not accept that a former office attendant at Jomo Thomas’ Chambers served the notice on the Attorney General’s Chambers on April 24th, 2019. Without clear evidence, the court said that:
“claimant has failed to prove that the Attorney General was served with the notice as is required by section 3 of the Act.
“The claimant has failed to satisfy the mandatory condition precedent to the filing of the claim. Based on the unchallenged evidence on behalf of the Attorney General that he was not served, and the failure of the claimant to prove that he was, the claimant is in breach of section 3 and section 5(a) of the Act. Section 5 mandates that the claim be dismissed or otherwise terminated. The court has no discretion in this matter. This claim is obviously unsustainable and must be struck out as an abuse of the process of the court”.
With the case falling on the grounds of the technical issue with regards to filing, Officer Lavia did not have to answer the civil case as to whether he was liable for causing injury to Mr Fergus.