Bartholomew Brown and Another v Jamaica National Building Society
| Jurisdiction | Jamaica |
| Judge | Phillips JA,Sinclair-Haynes JA,P Williams JA |
| Judgment Date | 18 March 2016 |
| Neutral Citation | JM 2016 CA 30 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 93/2014 APPLICATION NOS 126 & 197/2015 |
| Court | Court of Appeal (Jamaica) |
| Date | 18 March 2016 |
[2016] JMCA App 7
JAMAICA
IN THE COURT OF APPEAL
The Hon Miss Justice Phillips JA
The Hon Mrs Justice Sinclair-Haynes JA
The Hon Miss Justice P Williams JA (AG)
SUPREME COURT CIVIL APPEAL NO 93/2014
APPLICATION NOS 126 & 197/2015
and
Bartholomew Brown and Bridgette Brown in person
Mrs Helene Coley-Nicholson and Ms Dian Johnson instructed by Garth McBean & Co for the respondent
Miss Carlene Larmond instructed by the Director of State Proceedings for the Attorney-General
The applicants have filed multiple appeals and applications before this court challenging, inter alia , multiple decisions of this court and the Supreme Court on the basis that, inter alia , they have been deprived of their constitutional right to a fair hearing since most of the judges who heard their matters were biased and corrupt. I may shortly be similarly accused, because I am minded to refuse their applications and to grant orders to protect the court's process from further abuse by the applicants, and may also ultimately expedite a trial of the applicants' claim filed in the Supreme Court since 6 June 2007.
In the present applications filed before this court, nos 126 and 197/2015, the applicants sought, inter alia , the intervention of the Attorney-General in their matters and a review of several previous decisions made in this court and below. They have complained throughout their submissions and at the hearing of the applications before us that the judges who heard their matters had failed to examine all of the evidence and failed to consider all aspects of their matters. They have also submitted voluminous documentations and requested that the court examine and address all of the matters that have been placed before it. The respondent filed preliminary objections to both applications on the basis of res judicata and re-litigation as an abuse of the process of the court. In an endeavour to make comprehensive rulings on the applications before us, to address the applicants' complaint, and in deciding the merits of the respondent's preliminary objections, I am constrained to embark upon a journey through some of the relevant applications filed by the applicants before this court and the Supreme Court which impinge on the applications before us.
In 1993, the applicants averred that they had obtained a loan of $800,000.00 from the respondent to complete construction of their dwelling house at 27 Maxfield Place, Runaway Bay in the parish of Saint Ann. The applicants alleged that having made their monthly payments, these payments were not credited to their account in a timely manner which thereby placed their account into arrears; caused it to accrue late charges; and exposed their home to foreclosure. While they were able to rescue their house from foreclosure, the applicants alleged that their efforts to do so have resulted in severe loss and damages.
On 6 June 2007, the applicants filed a claim against the respondent seeking, inter alia , damages under several heads (including exemplary damages) for, inter alia , breach of contract and negligence. The respondent's defence was filed out of time, on 2 April 2008, and so it sought an extension of time for filing the same. On 8 May 2008 Master Lindo (as she then was) granted the respondent's application for extension of time to file its defence and ordered that a case management conference be held on 9 June 2008. This claim is still pending due to several aborted trials.
In an application for an extension of time filed 6 June 2008, to appeal against Master Lindo's decision to grant the respondent an extension of time to file its defence, the applicants urged this court to rule in their favour on the basis that, inter alia , their delay in filing notice and grounds of appeal was not attributable to them and they had good grounds of appeal since the learned judge was ‘very biased’. The matter was heard by Panton P, Harris JA and G Smith JA (Ag) (as she then was) on 15 October 2008. Panton P, in an oral judgment delivered on 24 October 2008, on the court's behalf, refused the application sought on the basis that it was within Master Lindo's discretion to extend time having regard to the respondent's reasons for its delay in filing a defence. These reasons, as stated in the affidavit of Byron Ward (Legal Counsel and Corporate Secretary for the respondent) filed on 17 April 2008 in support of the respondent's application for the extension of time to file its defence, included the fact that active steps were being taken to settle the matter and that the applicants had changed attorneys on numerous occasions. This court also found that no evidence had been presented to the court or was disclosed in the copious documents filed before the court which substantiated the applicants' claim that Master Lindo was ‘very biased’. Moreover, the court found that there was no indication that the respondent's defence was a sham and based on the averments contained therein it ‘may well have a good defence’. Consequently, the application for an extension of time to appeal Master Lindo's order filed by the applicants was refused; the substantive claim was ordered to proceed to case management conference in the Supreme Court; and costs were awarded to the respondent.
On 4 November 2008, the respondent filed a notice of application which sought orders striking out the applicants' statement of case and the grant of summary judgment in the respondent's favour. The grounds upon which these orders were being sought were that the applicants' claim had no real prospect of success and that the alleged causes of action arose more than six years before the filing of the claim and were therefore statute barred. On 24 November 2008, the matter came before B Morrison J at a case management conference. Having agreed with the respondent that the applicants' claim was statute barred, the learned judge struck out the applicants' claim and granted summary judgment to the respondent.
On 1 December 2008, the applicants filed an application (which was relisted on 19 January 2009) in the Supreme Court for an order setting aside B Morrison J's order on the basis that, inter alia , B Morrison J had erred in not conducting a case management conference and that their claim was not statute barred. The application was heard by R Anderson J on 5 February 2009 who dismissed it after hearing a preliminary objection filed by the respondent that there was no jurisdiction of a judge in the Supreme Court to set aside an order made by another judge of that court enjoying equal or concurrent jurisdiction. Notwithstanding Anderson J's order, the applicants renewed this application before Beckford J who heard and dismissed it on 24 February 2009. On 26 February 2009, the applicants again renewed the same application before Brooks J (as he then was) who also upheld a similar preliminary objection made by the respondent; awarded costs to the respondent to be taxed if not agreed; and ordered that no further applications made by the applicants were to be heard until costs were paid to the respondent. The applicants nonetheless made the same application before Thompson-James J (Ag) (as she then was) on 6 May 2009 who refused it since it was already dealt with by Brooks J on 26 February 2009.
On 16 March 2009, the applicants lodged SCCA No 29/2009 challenging both the orders of Morrison J and Brooks J on the basis that both judges had ignored the order of this court made on 24 October 2008 that the matter should proceed to a case management conference and that the action was not statute barred. Before this appeal was even heard, the applicants filed at least two interlocutory applications within that appeal as follows:
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(1) Application No 48/2009
Filed on 16 March 2009, this application sought to vary the order of this court made on 24 October 2008; revoke the order of Brooks J made on 26 February 2009; obtain an interim payment; and an interlocutory injunction. The application was heard on 30 March 2009 by Panton P, Harris JA and Morrison JA (as he then was) and was dismissed on 1 April 2009.
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(2) Application No 129/2009
Filed on 1 July 2009, this application sought to re-admit and set aside the same application that had been dismissed on 1 April 2009 or in the alternative, an order for an interlocutory injunction and final judgment.
Application No 129/2009 and the substantive appeal were to be heard in the week of 27 July 2009. However, after the matter was adjourned, Panton P recused himself in light of comments made by the applicants in their written submissions. The appeal was eventually heard on 2 and 3 November 2009 by Harrison JA, Morrison JA and I and both parties made submissions. In a judgment delivered on 4 March 2010, this court found that B Morrison J was entitled and duty bound to exercise his case management powers summarily if he formed the view that the applicants' claim had no prospect of success. However, this court also found that B Morrison J erred in his assessment of the applicants' prospect of success since he seemed to have given no consideration to the notion that a plea of limitation may be defeated, in the instant case, by either estoppel or an implied agreement, if a judge accepted the applicants' version of events. This court also held that Brooks J was correct to find that he had no jurisdiction to entertain the applicants' application and made the following orders:
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(i) the appeal against the order made by Morrison J on 24 November 2008 is allowed and the order for costs made in favour of JNBS is set aside;...
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...support, seeking leave to appeal the decision handed down by this court on 18 March 2016, in SCCA No 93/2014, App Nos 126 & 197/2015 ( [2016] JMCA App 7), to Her Majesty in Council, on the grounds that: (i) judges failed to hear them, failed to disclose their interests in the matter, were b......
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Bartholomew Brown and Another v Jamaica National Building Society
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