Anika Brown v Marlon Pennicooke

• Jurisdiction: Jamaica
• Judge: McDonald-Bishop JA
• Judgment Date: 04 January 2022
• Neutral Citation: JM 2022 CA 1
• Docket Number: APPLICATION NO COA2021APP00241
• Court: Court of Appeal (Jamaica)

[2022] JMCA App 1

IN THE COURT OF APPEAL

APPLICATION NO COA2021APP00241

Between

Anika Brown

Applicant

and

Marlon Pennicooke

Respondent

and

The Administrator-General for Jamaica

Interested Party

Andrew Irving for the applicant

Neco Pagon for the respondent

Mrs Allia Leith-Palmer for the interested party

IN CHAMBERS

McDonald-Bishop JA

1 On 6 November 2020, Her Honour Ms N Creary-Dixon, parish judge for the parish of Saint Catherine, entered judgment in default for Mr Marlon Pennicooke (‘the respondent’) against Miss Anika Brown (‘the applicant). She ordered that the applicant quit and deliver up all of the premises located at Lot 81, 7 West, Greater Portmore in the parish of Saint Catherine (‘the disputed property’).

2 The applicant's application before the Saint Catherine Parish Court for the default judgment to be set aside and for a stay of execution of the default judgment was refused by Her Honour Miss Harrison (‘the learned parish judge’). On 10 December 2021, the applicant filed a notice of appeal challenging the decision of the learned parish judge.

3 This is an application for a stay of execution of the default judgment pending the hearing and determination of the appeal in this matter or until further orders. The grounds of the application, as set out in the notice of application for court orders filed on 13 December 2021, are as follows:

• “a) The Applicant has good grounds of appeal with a prospect of success

• b) The Respondent's Attorney-at-Law had indicated that, in the absence of a stay, they intend to enforce the Order

• c) The Appellant [sic] will suffer irremediable harm if a stay is not granted

• d) If a stay is not granted it is likely to result in more injustice to the Appellant [sic] than to the Respondent” (absence of punctuations as in original)

4 The application is supported by an affidavit sworn to on 13 December 2021 by the applicant in which she deposed, among other things, that the disputed property was owned by the respondent and Mr Marcel O'Neil Manahan as tenants-in-common. She deposed that the respondent has a 25% interest in the disputed property and Mr Manahan a 75% interest. The applicant stated that Mr Manahan was her common-law husband and that he died intestate on 13 September 2019, survived by her and their minor child. She averred that she was Mr Manahan's spouse and is entitled to a beneficial interest in and a right to possession of the disputed property. She intends to file a claim for declarations to that effect.

5 The Administrator-General for Jamaica, who is now joined to these proceedings as an interested party, has since obtained letters of administration to administer the estate of Mr Manahan on behalf of the minor beneficiary. The Administrator-General has given her consent for the applicant to remain in the disputed property and supports the application for a stay of execution of the default judgment.

6 The court notes that it has not benefited from any affidavit evidence from the respondent, although the respondent was served with the notice of the application and supporting affidavits.

7 According to rule 2.10(1)(b) of the Court of Appeal Rules, 2002, a single judge may make orders for the stay of execution of any judgment or order against which an appeal has been made pending the determination of the appeal.

8 This court has repeatedly restated the test to be applied in matters of this nature in numerous cases. Mr Irving, counsel for the applicant, relied on the case of Channus Block and Marl Quarry Limited v Curlon Orlando Lawrence [2013] JMCA App 16 (‘ Channus Block’) in support of his submissions. He submitted that the court has a discretion whether or not to grant a stay based on the following test:

• a) The applicant must show that he has an appeal with some prospect of success; and

• b) the court is to conduct a balancing exercise to determine the order that best accords with the interests of justice.

9 In Channus Block, Morrison JA (as he then was) opined that:

“[10] The jurisdiction of a single judge of appeal to grant a stay of execution is, as Phillips JA observed in ( Reliant Enterprise Communications Ltd v Twomey Group and Another SCCA 99/2009, App 144 and 181/2009, judgment delivered 2 December 2003, para [43]) ‘absolute and unfettered’. The starting point is, in my view, the well established principle that there must be a good reason for depriving a claimant from obtaining the points of a judgment. In deciding whether or not to grant a stay, this court has in recent times consistently applied the test formulated in Hammond Suddard and it is now well established that the applicant must show that he has an appeal with some prospect of success, and that he is likely to be exposed to ruin if called upon to pay the judgment. It is, in my view, essentially a balancing exercise, in which the courts seek to recognise the right of a successful claimant to collect his judgment, while at the same time giving effect to the important consideration that an appellant with some prospect of success on appeal should not have his appeal rendered nugatory by the refusal of a stay.”

10 Subsequent to Morrison JA's pronouncements in Channus Block, I, sitting as a single judge in Sagicor Bank Jamaica Limited v YP Seaton and others [2015] JMCA App 18, noted the development of the law relating to an application for a stay of execution. At paras [49] to [52] of that judgment, I stated that:

• “[49] It has been noted by the learned writers of Blackstone's Civil Practice 2004 at paragraph 71.38 that for many years the courts have acted on the principle stated in Atkins v Great Western Railway (1886) 2 TLR 400 that a stay may be granted where the appellant produces written evidence showing that if the judgment were to be paid, there would be no reasonable prospect of getting it back if the appeal were to succeed. HOWEVER, Staughton LJ in Linotype-Hell Finance Ltd v Baker [1993] 1 WLR 321 stated that that test was too stringent and that the stay could be granted if the appellant would face ruin without a stay provided the appeal had some prospect of success.

• [50] While the foregoing considerations may be relevant in determining whether to grant a stay, none of them is determinative. It is now accepted, on later authorities, that whether the court should exercise its discretion to grant a stay of execution of a judgment pending the hearing of an appeal against the judgment depends upon all the circumstances of the case, but the essential factor is the risk of injustice (see Hammond Suddard Solicitors v Agrichem International Holdings [2001] All ER (D) 258). According to the authorities, the crucial question for the court is whether there is a risk of injustice to one or other or both parties if it grants or refuses a stay.

• [51]...