Anthea McGibbon v Ambrose Burke

• Jurisdiction: Jamaica
• Judge: PANTON P
• Judgment Date: 07 October 2011
• Neutral Citation: JM 2011 CA 97
• Docket Number: RESIDENT MAGISTRATES CIVIL APPEAL NO 5/08
• Court: Court of Appeal (Jamaica)
• Date: 07 October 2011

[2011] JMCA Civ 35

JAMAICA

IN THE COURT OF APPEAL

BEFORE:

THE HON MR JUSTICE PANTON P

THE HON MR JUSTICE MORRISON JA

THE HON MR JUSTICE HIBBERT JA (Ag.)

RESIDENT MAGISTRATES CIVIL APPEAL NO 5/08

BETWEEN

ANTHEA McGIBBON

APPELLANT

AND

AMBROSE BURKE

RESPONDENT

Appellant in person

Leroy Equiano for the respondent

REAL PROPERTY - Recovery of possession - Recovery of outstanding rental - Leave to appeal - Whether the magistrate erred in not allowing the appellant the opportunity to present her wirnesses at trial

PANTON P

1 This appeal is from a decision of Her Honour Mrs Marlene Malahoo Forte, former Resident Magistrate for the Corporate Area (Civil), delivered on 7 June 2006 in which she gave judgment with costs of $2,500.00 to the respondent.

2 The proceedings in the Resident Magistrates Court commenced with a plaint filed by the respondent on 1 November 2004 seeking from the appellant one month's arrears of rental and recovery of possession in respect of premises at 11 Maple Leaf Avenue, Kingston 10. Firstly, the question of the rental was recorded as settled on 3 December 2004. Secondly, on 16 March 2005, by consent, judgment was entered for the appellant to deliver up possession of the premises on or before 30 June 2005. Prior to the entry of that judgment, a counterclaim had been filed by the appellant wherein she claimed $250,000.00 for nuisance, breach of covenant for quiet enjoyment and refund of monies paid to the respondent for cable service which was not paid for by him; and for an injunction restraining the respondent from further interfering with her quiet enjoyment of the premises. The final phase of the proceedings involved the trial of the counterclaim. The appeal stems from that trial.

3 On 25 April 2005, a further notice of counterclaim was filed by the appellant. In that counterclaim, she sought an award of $158,128.37 for replacement of her portfolio of work which she claimed was willfully and recklessly destroyed by the respondent. She also claimed compensation for loss of employment opportunity resulting from the destruction of the portfolio. The appellant last saw the portfolio on 11 February 2004. The job offer was from Vibez Communications Group. On 12 January 2004, the appellant had attended a job interview which she said went very well.

4 At the trial, the learned Resident Magistrate heard evidence from the appellant and her witness Mr Andrew Thompson as well as from the respondent. In her evidence, the appellant said that her real claim was for the damage done to her portfolio. She was working at the Gleaner Company as a sub-editor and photographer. The portfolio was a compilation of published and unpublished works, representing her skill, experience and expertise in the roles of sub-editor and photographer. On 11 February 2004, the portfolio was on her verandah immediately under her window. She left for work at about 8 a.m. On her return at about 7 p.m. she noticed that the portfolio was missing. According to her, upon enquiring of the respondent, he told her he had thrown it away. She denied that she had told him to dispose of it. She said that her inability to provide the portfolio resulted in the loss of a job opportunity which would have earned her US$500.00 per week in addition to other benefits.

5 While being cross-examined, the appellant denied that the newspapers making up the portfolio were in a carton box. She said that they were in plastic and that the respondent and herself had discussed the portfolio from time to time but he used to laugh at her pile of newspapers. She said it was not necessary for her to show her portfolio at the interview on 12 January 2004. She has since made an attempt to reproduce the portfolio, and has shown electronic versions to the potential employer but the online version does not amount to the required evidence for the State Department and the firm. Her intention, she said, was to take the newspapers abroad while travelling by aeroplane.

6 The appellant said that her rental package included $1,000.00 for cable service. She paid for full cable service but only received basic channels sometimes, and nothing at other times. She received no cable service, she said, between April 2004 and July 2005 when she vacated the premises.

7 Mr Andrew Thompson, an electrical contractor, gave evidence that he visited the appellant on a date when he heard a heated argument between her and the respondent in respect of the missing portfolio. He said that the respondent said that he had thrown away the portfolio as he thought it was garbage. Under cross-examination, he said that he used to ask the appellant what the papers were for. ‘You could see it was old newspaper’, he said. The appellant, he said, had told him that the portfolio was being kept on the verandah ‘until she sorted out herself inside’.

8 The respondent said that the monthly rental amount included a fee for basic cable service. The cost for the cable service was $800.00, not $1,000.00. He denied charging the appellant $1,000.00, and said that the only time that there was no cable service was when the line was being worked on by the providers. The appellant, he said, had unlawfully removed the cable box and as a result he had reported this incident to the police.

9 As far as the portfolio was concerned, the respondent said that the appellant, who had taken up residence not very long before, took a little while to unpack her household items. The process of unpacking had taken two to three weeks, and involved a fight between the appellant and her boyfriend. The fight was in respect of ‘what was to be packed when, where and how’, said the respondent. After the unpacking had been done, and two to three weeks more had passed, the respondent said that he noticed that there were three seat cushions and a carton on the verandah. They were unsightly. He inquired of the appellant whether they should be thrown out and, according to him, the appellant answered in the affirmative. He said he threw them out on the Tuesday because garbage...