The Court of Appeal has ruled in favour of the state-owned Grenada National Lottery Authority (GNLA) not to pay EC$540, 000.00 which the popular “Stew Man” whose real name is Jerome De Roche had claimed that he won in one of its games.
A high court judge had earlier ruled in favour of “Stew Man” who was born in St Vincent but grew up on the small island of Petite Martinique.
However, a 3-member panel of Court of Appeal Justices decided Wednesday to set aside the ruling on the grounds that the judge had erred in the interpretation of the applicable law in the case.
The matter before the court was argued for “Stew Man” by attorney-at-law Ruggles Ferguson while the National Lottery brought in a senior lawyer from Barbados, Leslie Haynes, KC.
Following is an edited version of the judgment handed down by the Justices of Appeal – Mario Michel, Mde. Gertel Thom and Trevor Ward:
JUDGMENT
WARD JA: This appeal arises out of a dispute over the non-payment of the winning jackpot in the Grenada Super 6 Lotto. Its apparent simplicity belies an important issue relating to pleadings to which this appeal gives rise. In short, can a party’s case be conducted on a footing, which formed no part of its pleaded case?
Background
The appellant, the National Lotteries Authority, (NLA) is the agency in Grenada charged with responsibility for, inter alia, promoting the development of lotteries and games of chance in Grenada. Among the games offered to the public under the auspices of the NLA are the Play Way and the Super 6 Lotto.
The respondent, Jerome De Roche, who was the claimant in the court below, is a frequent player of the Play Way game. On Friday, 3rd November 2017, he placed a bet on the Super 6 Lotto by purchasing a ticket containing the numbers 08, 10, 11, 19, 26, and 28 from Parris Pharmacy in Grenville. This ticket was for draw #1761, which carried a winning prize of $540,000.00. Though the draw was scheduled for 3rd November 2017, it was deferred to 4th November 2017.
The respondent’s pleaded case, as set out at paragraphs 6-8 of his statement of claim, is in the following terms:
The Claimant became aware on Saturday 4th November that Draw 1761 had taken place when he visited a Lotto outlet in St. George to purchase additional tickets. He immediately recognised that the numbers drawn for Draw 1761 were the numbers that he had played.
Upon frantically checking for the winning ticket he had purchased the Claimant realised that he had inadvertently disposed of the ticket in the garbage on the morning of Saturday 4th November.
At the first opportunity the Claimant notified the Defendant that he had purchased the winning ticket and that he was claiming the winnings despite the fact that he was unable to produce the ticket because he had inadvertently disposed of it.”
The NLA informed the respondent that it would not be able to consider his claim unless the winning ticket was produced within three months. The respondent was unable to produce the ticket and the appellant refused to pay him the winning prize.
As a result, on 12th October 2018, the respondent instituted a claim against the appellant for general damages for breach of contract in failing to pay the prize money to him or, alternatively, special damages in the sum of $540,000.00, and, in the further alternative, an order directing the appellant to pay to him the sum of $540,000.00, which was said to be held on trust by the appellant for the respondent.
The claim also alleged that the appellant had embarked on a series of fraudulent actions to mislead the respondent and thereby deprive him of his winnings.
These acts were said to include wiping out all information connected with the purchase of the Super 6 lotto ticket at Parris Pharmacy, under the guise of performing maintenance on the lotto machine, and falsely representing that the winning ticket was sold by the NLA’s Office in Grenville on 4th November 2017 and not by Parris Pharmacy on 3rd November 2017.
In its pleaded defence filed on 12th November 2018, the appellant denied that it was in breach of contract. It pleaded that by the terms of the contract printed on the back of the ticket, the ticket is a bearer instrument and constitutes the only proof that a bet was placed.
The appellant pleaded that the terms of the contract as endorsed on the back of the lottery ticket were that in order to claim the prize, the bearer was required to sign and present the ticket and present a valid form of identification within 90 days, unless otherwise decided by the manager of the NLA.
The appellant pleaded that the respondent had failed to comply with any of these terms of the contract. The appellant further pleaded at paragraph 13 of its defence that an investigation was carried out and the findings showed that the point of purchase of the winning ticket was at the Grenville sub-office and not at the Parris Pharmacy as claimed by the respondent.
The appellant says these findings were presented to the respondent. The appellant also denied the allegations of fraud made by the respondent and pleaded that the ‘Super 6 game data is encrypted and stored on a server’ in Saint Lucia and the appellant does not have the clearance to wipe any data from the Super 6 lottery database.
of these terms of the contract. The appellant further pleaded at paragraph 13 of its defence that an investigation was carried out and the findings showed that the point of purchase of the winning ticket was at the Grenville sub-office and not at the Parris Pharmacy as claimed by the respondent.
The appellant says these findings were presented to the respondent. The appellant also denied the allegations of fraud made by the respondent and pleaded that the ‘Super 6 game data is encrypted and stored on a server’ in Saint Lucia and the appellant does not have the clearance to wipe any data from the Super 6 lottery database.
The evidence
Given the issues that arise for consideration on this appeal, it is necessary to set out the material parts of the respondent’s witness statement, which stood as his evidence in chief. The material parts of paragraphs 7-15 are in the following terms:
“I had won $600 on the Play Way ticket for the midday Play way draw. I went to cash the Play way ticket on Tuesday 7th November 2017 at the Lotto office in Bruce Street Mall, St. George’s where the Tourist boats come in. While at the mall Lotto office, I saw the Super 6 and Lotto numbers marked up on the board. I recall from memory that this was (sic) the same numbers on my Super 6 Lotto ticket. And the super 6 Lotto ticket which I kept confirmed the numbers.
I never wrote down the Super 6 numbers. I kept them in my head and I remembered them because they were selected by me using a timing code…
After recalling the numbers from my memory, I then went to the woman at the desk of the Lotto shop in the mall. I took out the Play way ticket #34, signed it and gave it to her to cash and I got cash for $600.00.
After cashing my Play way ticket, I asked the woman when did the Super 6 numbers shown on the board got (sic) played because I did not see the number played on TV on the Friday night before. The woman said the Super 6 was played on Saturday night, 4th November 2017.
I told the woman I bought numbers for Friday’s draw which are the same numbers shown on the board. The woman then told me to show her the ticket. So, I signed the ticket and handed it to her. The woman put the ticket in the Lotto machine then turn (sic) around and told me that the ticket is cancelled.
I then said to the woman how could the ticket be cancelled when there was no draw on Friday 3rd November 2017 but there was a draw or play on Saturday 4th November 2017?
The woman replied to me that I purchased the ticket for Friday the 3rd not Saturday the 4th. That made me feel like my Super 6 ticket was not valid.
I thought the woman at the Mall Lotto’s reply could not be right since there was no call or play or draw of the numbers on the Friday night. I know from playing Play Way that if a ticket is purchased for a midday draw and numbers on that ticket were not called on the midday draw, I cannot win even if the same numbers are called for the night draw. But when there is no call or draw on Friday but on Saturday instead, I thought I should still win.
Not believing what the woman in the mall lotto office told me, I went to see the manager of the National Lotteries Authority, Mr. Gilbert, at their main office on the Carenage in the afternoon of the same day, Tuesday 7th November. The secretary to Mr. Gilbert told me he is not in.”
The judgment in the court below
[The learned trial judge (“the judge”) accepted the evidence given by the respondent at trial and found that he had purchased the winning ticket at Parris Pharmacy on Victoria Street in Grenville.
The judge further found that the respondent had satisfied the requirements to claim the winning prize, in that, on 7th November 2017, he signed and presented the winning ticket to the defendant’s agent, who told him it had been cancelled.
Accordingly, the judge held that the respondent had succeeded on his claim for breach of contract and further held that the appellant held the prize money in the sum of $540,000.00 on trust for the respondent. The judge therefore awarded the respondent the said sum as special damages together with pre-trial and post-judgment interest.
The appeal
Being aggrieved, the appellant filed four grounds of appeal. In summary, the appellant contends by ground 1 that the judge erred in law in permitting the respondent to adduce evidence in chief contrary to paragraphs 6 and 7 of his statement of claim and wrongly decided the issue of the appellant’s obligation to pay out the prize winnings by reference to that evidence, which formed no part of the respondent’s pleaded case.
Grounds 2 and 3 take issue with the judge’s findings of fact in relation to three matters, namely: (a) whether the appellant could alter or manipulate the ticket information stored on the lottery terminal; (b) that there was an announcement by the appellant that the winning ticket was sold at Parris Pharmacy; and (c) that the winning ticket was signed and presented by the respondent to the lottery agent on 7th November 2017.
Ground 4 contends that the judge erred in law in ruling that the Super 6 lotto ticket was not a bearer instrument and in failing to find that it was a term of the contract.
The appellant’s submissions Ground 1
On behalf of the appellant, learned King’s Counsel, Mr. Leslie Haynes, took as his starting point, rule 8.7(1) of the Civil Procedure Rules 2000 (“CPR”) which states that: ‘[t]he claimant must include in the claim form or in the statement of claim a statement of all the facts on which the claimant relies.’
Learned King’s Counsel advanced the propositions that pleadings are still required to mark out the parameters of the case that is being advanced by each party and are critical to identify the issues and the extent of the dispute between the parties; that they should make clear the general nature of the case to let the other side know the case it has to meet so as to prevent ambush; and must, therefore, contain the particulars necessary to serve that purpose.
Mr. Haynes submitted in oral argument that a witness statement cannot change pleadings but is limited to particularising and enlarging pleadings. He submitted that a court must decide the case within the parameters of the pleadings.
It was further argued that the judge incorrectly summarised the respondent’s pleaded case when, in purporting to summarise the statement of claim, she stated at paragraph 2 of the judgment that the respondent pleaded that he presented the ticket to the appellant’s agent prior to inadvertently disposing of it, when in fact the statement of claim states that the respondent disposed of the ticket prior to discovering he had won on 4th November 2017.
Mr. Haynes referred the court to paragraphs 3 – 7 of the statement of claim and submitted that it fails to allege that the lottery ticket was ever presented for payment, in sharp contrast to the respondent’s witness statement where this assertion is made.
Mr. Haynes invited the court to note a number of deviations from the pleadings as reflected in the witness statement. This is significant, he submitted, given that the essence of the defence was that it was a term of the contract between the appellant and the respondent that to claim the prize, the respondent had to present and sign the winning ticket. The respondent was therefore required to specifically plead that he presented and signed the ticket.
Mr.Haynes drew attention to inconsistencies in the respondent’s position with respect to whether the ticket was presented. He noted that the respondent’s witness statement and pre-trial memorandum filed on 11th February 2020, both assert, contrary to the statement of claim, that the respondent had signed and presented the winning ticket on Tuesday 7th November 2017 but was told that it was cancelled.
The witness statement, submitted Mr. Haynes, also represents a shift from the statement of claim, in that, the respondent’s discovery that he had played the winning numbers is now said to have been made on Tuesday, 7th November and not Saturday 4th November as pleaded; and further, the respondent is now said to have lost the ticket on Saturday, 11th November 2017; not on Saturday 4th November 2017.
Furthermore, argued Mr. Haynes, in subsequent pre-trial skeleton arguments filed on 6th April 2021, in an apparent reversion to its pleaded case, counsel for the respondent wrote at paragraph 5: ‘It is common ground that the winning ticket was never presented for the purpose of drawing the $500,000.00 (sic) which was the prize played for in Draw 1761.’
Mr. Haynes submitted that in the face of these inconsistencies, the statement of claim must be paramount. Said to be compounding matters was the fact that throughout all this the respondent never amended or sought to amend his statement of claim to plead presentation of the winning ticket. Thus, when the trial commenced, it was on the basis that the respondent had not presented the winning ticket and the issue was simply one of determining the terms of the contract.
The appellant’s apprehension of the respondent’s case, based on the pleadings, was that he had not presented the winning ticket, but that the appellant’s manager could have exercised his discretion to pay the prize money to him, notwithstanding his failure to present the ticket, and that the failure of the manager to do so and to insist on the strict terms of the contract was unfair in the circumstances. Mr. Haynes submitted that unfairness is no part of contract.
Mr. Haynes referred to the judgment below and submitted that in setting out the respondent’s case, the judge failed to deal with the respondent’s failure to plead that the winning ticket was presented, which is an element of the cause of action and so ought to have been pleaded.
The essence of the defence was the non-presentation of the ticket which was in breach of the terms of the contract. Learned King’s Counsel described this as the ‘highwater’ of the appellant’s case which the respondent could not get around. Despite this, the only issue which the judge dealt with was the date when the ticket was lost.
Mr. Haynes therefore submitted that the judge erred when she found as a fact that the respondent had presented the winning ticket and that she further erred in relying on this finding of presentation to hold that the respondent was entitled to payment of the prize money when presentation was never pleaded.
Mr. Haynes contended that the judge tried a case that did not exist on the pleadings, while holding (at paragraph 48) that the appellant had not rebutted that case.
Mr. Haynes submitted that although the appellant took no steps up to trial, such as applying to strike out the respondent’s case or by putting the inconsistencies to the respondent during cross-examination, there was no burden on the appellant to prove the appellant’s case; it was for the respondent’s pleadings to set out a cause of action.
Mr. Haynes submitted that this court must set aside the orders of the judge as a matter of law because the judge determined the case on a basis that was not pleaded.
TO BE CONTINUED