Dear Editor,
On 30 December 2019, Stabroek News reported on a decision of the Caribbean Court of Justice in which the Court opened the way for the parents of a fisherman who died in 2002 by Barama’s negligence to obtain $6.85 million with interest from Barama.
Since the story simply reports the Court’s decision, the use of legal jargon to describe what happened cannot be faulted but, as someone who has been involved in this matter for nearly twenty years, I can’t help feeling that the real story of injustice faced by the operation of an indifferent legal system was lost in the jargon.
At 18, Mahendra Sanasie was a fisherman whose captain thought his prospects of becoming a fishing boat captain himself in the near future were very good. He made three trips out to sea every month and gave his parents $40,000 a month for them and the household.
No doubt Mahendra would have given his parents more money if his earnings increased but they did not get a chance to find out because on 31 January 2002 a barge owned by Barama collided with the fishing boat Mahendra was on and he died.
It took his mother from April to October that year to get letters of administration so she could file a case against Barama for his estate and for compensation for the loss of the money her son provided to her and her husband.
I became a lawyer that October and Shantidai, Mahendra’s mother, was my first client. After interviewing Shantidai and the fishing boat captain who survived, the very first case I ever prepared and filed was Shantidai’s case against Barama on 9 January 2003.
It took nearly 9 months before a hearing date could be requested and more than 11 years after the case was filed for a date for trial to be fixed. The trial itself took nearly 3 and a half years from start to judgment.
Since Barama did not put forward any evidence to show that it was not negligent and Shantidai put forward enough evidence to show that Barama must have been negligent, the decision was probably not difficult to reach and the judge awarded $12,450,000 plus interest and costs to Shantidai on 4 August 2017.
Barama appealed this decision and also applied to a single judge in the Court of Appeal for the payment of that sum to be stayed until that appeal was finished so that it would not have to pay if it won the appeal. Payment of the sum was partially stayed on 1 February 2018 and Shantidai received less than one-fifth of the judgment without interest.
Shantidai appealed the staying decision to the full bench of three judges in the Court of Appeal but the stay was kept in place in their decision of 21 December 2018, by which time nearly 17 years had passed since Mahendra died. Just three weeks before this decision, Mahendra’s father died.
Shantidai then appealed the staying decision to the Caribbean Court of Justice and it is the decision of that Court on 9 December 2019 setting aside the staying orders of the Court of Appeal (and reducing the sum awarded by the trial judge) which was the subject of the article in Stabroek News.
Shantidai can now take more lengthy steps to seize and sell Barama’s property to satisfy her judgment against it in the likely event that it does not write her a cheque for the balance of the judgment and interest.
But the case is not yet at an end. Both Barama and Shantidai have appealed the decision of the trial judge to the Court of Appeal and that appeal is pending.
Shantidai’s appeal seeks an increase in the sum awarded to her because her contention is that Mahendra’s earnings would have increased over the years and his contributions to the household would also have increased.
At the end of January, Mahendra would have been dead for as long as he was alive but no one can tell how long it will be before his mother can say to herself that the legal system has given her adequate compensation for what was taken from her. Mahendra’s father will never be able to do that because he died while waiting on the system.
No single person is responsible for the fact that Shantidai has suffered injustice for so long. No one decided that the matter should be delayed or set out to delay it. The system simply failed Shantidai and all of us who are part of that system, including me, just shrugged our shoulders and waited our turn to do what we were required to do in the case. Since February 2017, new rules of Civil Procedure were implemented which should prevent delays of this length ever happening again. But those rules will eventually go the way of the old rules unless every person involved in the system of justice, especially lawyers, takes steps to ensure that the culture of complacency which affects the legal system and every other aspect of our society is completely eradicated.
Yours faithfully,
Kamal Ramkarran
