Angela Bryant-Saddler v Samuel Oliver Saddler

• Jurisdiction: Jamaica
• Judge: Harris JA,Phillips JA,Brooks JA
• Judgment Date: 22 March 2013
• Neutral Citation: JM 2013 CA 32
• Docket Number: SUPREME COURT CIVIL APPEAL NO 57/2009 SUPREME COURT CIVIL APPEAL NO 137/2011
• Court: Court of Appeal (Jamaica)
• Date: 22 March 2013

Between

Angela Bryant-saddler

Appellant

and

Samuel Oliver Saddler

Respondent

Between

Fitzgerald Hoilette

Appellant

and

Valda Hoilette

Respondent

and

Davion Hoilette

1st Interested Party

and

Simeon Davis

2nd Interested Party

[2013] JMCA Civ 11

Before:

The Hon Mrs Justice Harris P (AG)

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

SUPREME COURT CIVIL APPEAL NO 57/2009

SUPREME COURT CIVIL APPEAL NO 137/2011

JAMAICA

IN THE COURT OF APPEAL

REAL PROPERTY - Beneficial interest - Claim for legal and beneficial interest in division of family home - Property (Rights of Spouses) Act

Miss Tavia Dunn instructed by Nunes Scholefield DeLeon and Company for the appellant

Gordon Steer and Mrs Sharon Usim instructed by Usim Williams and Co for the respondent

Miss Catherine Minto instructed by Nunes Scholefield DeLeon and Co for the appellant

Gordon Steer instructed by Miss Barbara Hines of Chambers Bunny & Steer for the respondent

Harris JA

1 I have read in draft the judgment of my sister Phillips JA. I agree with her reasoning and conclusion and have nothing to add.

Phillips JA

2 These two appeals arise from two different actions filed in the Supreme Court both relating to applications wherein the applicants were claiming an entitlement to pursue their claims under the Property (Rights of Spouses) Act (PROSA) and to obtain benefits enunciated in that statute, including declarations of the legal and beneficial interests in the division of the family home and other property, which applications were refused by the court. At the end of the submissions in appeal no 57/2009, which I shall refer to as the Saddler appeal, counsel requested that the court defer giving its reasons until after hearing submissions in appeal no 137/2011, the Hoilette appeal, as the main issues on appeal were similar. Although the appeals had not been formally consolidated, the court agreed to pursue that course. These are my reasons for the orders I would make in respect of the two separate appeals.

3 In the Saddler appeal, N. McIntosh J (as she then was) in the court below, after hearing an application filed on 29 June 2007, asking, inter alia, that the time limited to make the application for division of property pursuant to PROSA be extended to 15 January 2007, the date on which the fixed date claim form had been filed; and that the said fixed date claim form and all documents filed in support thereof be ordered to stand as valid, refused the same on 25 March 2009, indicating that the marriage had been dissolved many years ago on 11 July 1999, long before PROSA came into effect and PROSA did not have retrospective effect. The application was not considered on its merits. The learned judge granted leave to appeal, which was duly filed on 4 November 2009.

4 In the Hoilette appeal, on a preliminary objection taken in the court below, when the fixed date claim form was set down for hearing, on the basis that he had no jurisdiction to hear the claim, Fraser J, on 4 November 2011, ruled that the fixed date claim form had been amended out of time to include a claim under PROSA and, as the amendment had been made without prior permission or extension of time to do so, the fixed date claim form was invalid and could not be corrected by a subsequent order. The learned judge indicated, however, that the claimant was still free, even at that stage, to make an application for leave to extend time, and for the grant of extension of time to file the claim under PROSA. The learned judge also granted leave to appeal (in the event that it was desired), which was duly filed on 21 November 2011.

5 In both of these appeals, based on a review of the matters arising on the grounds of appeal as hereinafter set out, the following issues emerge:

• (a) Does PROSA have retrospective effect?

• (b) Is a claim form valid if (i) filed outside the 12 month limitation period stated in section 13(2) of PROSA or (ii) filed under a repealed statute?

• (c) Is leave/permission together with an extension of time application required prior to the filing of a claim for relief under PROSA?

• (d) Is a claim made under PROSA without leave/permission or extension of time irregular and curable by a subsequent application filed pursuant to section 13(2) of PROSA?

• (e) What, if any, is the effect of the orders made in the action prior to the filing of the application under section 13(2) of PROSA?

6 In my view it will be necessary for this court, in determining these issues, to consider the true and proper construction of the following sections of PROSA, namely: sections 2, 3, 4, 6, 7, 14, 24, and, in particular, section 13(1), (2) and (3), which is set out below:

‘Division of Property

13. (1) A spouse shall be entitled to apply to the Court for a division of property -

• (a) on the grant of a decree of dissolution of a marriage or termination of cohabitation; or

• (b) on the grant of a decree of nullity of marriage; or

• (c) where a husband and wife have separated and there is no reasonable likelihood of reconciliation; or

• (d) where one spouse is endangering the property or seriously diminishing its value, by gross mismanagement or by wilful or reckless dissipation of property or earnings.

(2) An application under subsection (1)(a), (b) or (c) shall be made within twelve months of the dissolution of a marriage, termination of cohabitation, annulment of marriage, or separation or such longer period as the Court may allow after hearing the applicant.

(3) For the purposes of subsection (1)(a) and (b) and section 14 the definition of “spouse” shall include a former spouse.’

7 Although the other relevant sections are referred to in more detail later in this judgment, I will nonetheless give an outline of the same:

• • Section 2 of PROSA defines (for the purposes of this judgment), inter alia, ‘family home’, as the dwelling house wholly owned by either or both of the spouses and used by them habitually or from time to time as their only or principal family residence with any land, buildings or improvements attached thereto, and used wholly or mainly for the purposes of the household; and ‘spouses’ to include a single woman and a single man who have cohabited as if in law they were husband and wife respectively for a period of not less than five years immediately preceding the institution of proceedings or the termination of cohabitation. A single man or woman for these purposes includes widow, widower or divorcee.

• • Section 3 indicates, inter alia, that save as specifically stated, PROSA shall not apply after the death of either spouse, and every rule of law or equity shall continue to apply as if the death had not occurred; the death of either spouse shall also not affect anything done in pursuance of PROSA, and any proceedings in train while one of the spouses dies can be continued and completed including an appeal and the court can make any order as if the spouse had not died. Section 4 makes it plain that PROSA is to have effect in place of the rules of common law and equity. Section 24 preserves proceedings which have commenced under any other enactment before PROSA came into effect and any remedies in relation thereto and states that they may be enforced and continued as if PROSA had not been brought into operation.

• • Sections 6, 7 and 14 respectively deal with each spouse's 50% entitlement to the family home (6); the power of the court to vary the equal share rule and the factors which the court may take into consideration (7); and the division of property other than the family home and the factors which the court can take into consideration (14).

8 However, in order to understand the different questions involved in the two appeals, I will set out in summary the background facts in respect of each appeal.

Summary of the background facts in respect of the Saddler appeal

The Saddler claim

9 The appellant had on 2 November 1995 initially filed an originating summons under the Married Women's Property Act (MWPA) asking for declarations, inter alia, that she had a beneficial interest in all that parcel of land situated at 8 Walford Close, Kingston 6, in the parish of Saint Andrew, being the land comprised in certificate of title registered at Volume 1177 Folio 711 of the Register Book of Titles. It was her contention that, as the parties had reconciled in 2000, she had not pursued that application. However, when the parties again separated in September 2005, her efforts to renew the originating summons were initially permitted by James J, but the summons was later dismissed by this court on 1 September 2006. The court stated that the summons, having not been served within the required 12 month period, was deemed to have expired, and to allow the proceedings to be pursued after 11 years, would be an abuse of the process of the court.

10 It was the further contention of the appellant that, as the parties had reconciled and were operating as a family unit, she did not think that the petition filed by the respondent for the dissolution of the marriage would have been pursued. In her affidavits before the court she attempted to show that there was ample evidence for her to have concluded that the marriage continued to be extant. The respondent's position was stridently to the contrary, insisting that the parties never renewed their relationship as husband and wife, but maintained a platonic relationship. The parties were therefore in conflict as to the status of their relationship, prior to the commencement of the claim, which position was initially reflected in the submissions of counsel for the respondent as being of significance. The decree absolute of divorce was, however, granted on 11 July 1999. A maintenance order was made in favour of the appellant by and with the consent of the respondent, but the appellant claimed that no...