Bent (Linel) v Eleanor Evans et Al

• Jurisdiction: Jamaica
• Judge: McDONALD-BISHOP, J
• Judgment Date: 27 February 2009
• Judgment citation (vLex): [2009] 2 JJC 2703
• Date: 27 February 2009
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

SUIT NO. C.L. 1993/B 115

BETWEEN

LINEL BENT

(Administrator of the estate of ELLEN BENT, deceased)

1 ^ST CLAIMANT

AND

LINEL BENT

(Administrator ad litem of the estate of ELGA ISAACS, deceased)

2 ^ND CLAIMANT

AND

ELEANOR EVANS

DEFENDANT

Ms. Suzette Wolfe

Mrs. Janet Taylor and Ms. Kadia Wilson

Land Dispute- registered land- application to bring land under the Registration of Titles Act- allegation of fraud- meaning of fraud under the Registration of Titles Act -whether title obtained by fraud- standard of proof required -whether title to be cancelled on grounds of fraud- The Registration of Titles Act, ss. 42,68,70,161(d),153 & 158

Request for adjournment- considerations for grant of an adjournment- no good reason shown - Civil Procedure Rules (CPR), r.39.7

Evidence- documentary evidence- admissibility- whether documents illegally obtained -principles governing illegally obtained documents in civil proceedings- proof of originality and authenticity of documents- copy documents disclosed in list of documents-opposing party served no notice to prove authenticity -whether party should be allowed to object to admissibility of documents at trial on grounds of authenticity - Civil Procedure Rules (CPR), 2002, r. 28.19

CIVIL PROCEDURE - Adjournment - Request for - Considerations for grant of an adjournment - No good reason shown - Civil Procedure Rules 2002, Rule 39(7)

McDONALD-BISHOP, J

THE PARTIES

1 In March, 1993, Ellen Bent and Elga Isaacs, both now deceased, brought an action by Writ of Summons against Eleanor Evans alleging fraud in respect of her application to the Registrar of Titles to bring lands situated at Gratto District, Bellvue in the parish of St. Elizabeth, under the Registration of Titles Act. At the commencement of the action, Ellen Bent sued in a representative capacity as administrator in the estate of her late husband, Charles Bent, who died in or around 1947. She had obtained letters of administration in his estate in 1948. Charles Bent was the brother of Elga Isaacs and so Ellen Bent and Elga Isaacs were sisters-in-law. Elga had sued in her personal capacity.

2 Both, Ellen Bent and Elga Isaacs, however, died before the matter reached trial. Following on the death of Ellen Bent, her son, Linel Bent, was appointed administrator for her estate and on March 8, 1999, pursuant to order of Master Beswick (Ag) (as she then was), he was substituted as first claimant in these proceedings in a representative capacity. On June 29, 2006, by order of Sykes, J, Linel Bent was also appointed administrator ad litem in the estate of Elga Isaacs, his aunt, and was then substituted as second claimant also in a representative capacity.

3 Linel Bent, therefore, stands as claimant in two separate and distinct capacities by way of an Amended Writ of Summons. For our purposes, Linel Bent will be referred to as 'the claimant'. Ellen Bent and Elga Isaacs will be referred to as 'the original claimants' while the term 'claimants' will be used whenever it becomes necessary to refer to all three or one or the other of them.

4 Eleanor Evans, the defendant, is the cousin of the claimant. She is the daughter of Ello Lewis and the grand-daughter of Lucius Bent both of whom are deceased. Lucius Bent was the uncle of Charles Bent and Elga Isaacs, they being children of his brother Matthew Bent who is also deceased. The defendant is the registered proprietor of approximately 7 acres of land at Gratto, Bellvue, St. Elizabeth 4 acres of which the claimant is contending was owned by the original claimants as joint owners.

THE CLAIM

5 The claim against the defendant is that the defendant had obtained certificate of title for the land by fraudulently representing to the Registrar of Titles in 1984 that she is owner of the land described in an application #87313. The particulars of fraud have been pleaded in the following terms:

• (a) The Defendant wrongfully stated and sworn to in a Voluntary Declaration, that ELLO LEWIS was the owner of the lands knowing that this was untrue.

• (b) The Defendant wrongfully stated and sworn to in a Voluntary Declaration that the said ELLO LEWIS used the rents and profits of the said land when she knew that the said ELLO LEWIS never lived on the said land nor exercised any acts of ownership thereover and collected no rents nor profits therefrom.

• (c) The Defendant fraudulently represented and falsely told the said Registrar in the form of a sworn to Voluntary Declaration that ELLO LEWIS sold the land to her, when this was untrue and she had no written evidence of same.

• (d) The Defendant untruthfully sworn to a Voluntary Declaration stating that she had been in possession of the said land from 1975, when she had never been in possession, nor exercise any acts of ownership thereover.

• (e) The Defendant wrongfully produced to the Registrar a Certificate of Payment of taxes for the said land at Valuation # 20105011032 in the name of ELORINE LEWIS claiming it concerns the said land when the land was on the tax roll at Valuation # 201050060250 in the name of ELLEN BENT.

• (f) The Defendant wrongfully swore to a Voluntary Declaration that she was the owner of the said land knowing that she was not and that the statement was false and untruthful.

6 On the basis of this alleged fraud, the claimant seeks, inter alia, the following remedies:

THE DEFENCE

• (1) A declaration that he is the owner (as personal representative of the original claimants) of that parcel of land comprising approximately 4 acres;

• (2) An order that the Registrar of Titles cancel the certificate of title issued in the name of the defendant for the said lands registered at Volume 1206 Folio 386 of the Register Book of Titles issued in the name of the defendant as sole owner;

• (3) An order that the defendant by herself, her servants and/ or agents be restrained from entering on the claimant's land and from doing anything on it.

7 In response to the claimant's claim, the defendant denies the claimant's claim to ownership of any portion of the land comprised in her certificate of title. She avers in her Amended Defence as filed, that, inter alia, she had purchased the land registered in her name from her mother, Ello Lewis, in 1975. She averred that the land was inherited by her mother from her mother's father, Lucius Bent, on his death and that the said Lucius Bent inherited the said 7 acres from his parents. She is entitled to ownership of the land in dispute and she had made no fraudulent representations to the Registrar of Titles at any time concerning her acquisition of the said lands. She denies the particulars of fraud as pleaded by the claimant.

REQUEST FOR ADJOURNMENT

8 At the commencement of the trial, the claimant's counsel, Ms. Wolfe, sought an adjournment of the trial for two reasons. The first reason advanced by her was that it was necessary for proof of the claimant's case that certified copies of the documents that were submitted in support of the defendant's application for registered title be obtained from the Registrar of Titles. The claimant had made an application for court order to this end but the application was set for hearing in December, 2008- a date after the date set for trial. According to her, they have always been in possession of the uncertified copies of the documents but were of the view that no issue was being taken with the authenticity of the documents until a week or so before the trial after a Notice of Intention to Adduce Hearsay had been served on the defence and the defence stated their objection to the documents. She argued that the claimant would be prejudiced in the presentation of his case if time was not granted for him to obtain the required documents.

9 Ms. Wolfe further advanced as a second basis for the grant of the adjournment the argument that the claimant needed time to allow Thelma Blake, a daughter of Elga Isaacs, to obtain a grant of letters of administration in her mother's estate, the application for which is pending in the St. Elizabeth Resident Magistrate's Court. This is necessary for an application to be made for Thelma Blake to be joined as a party to these proceedings.

10 The application for adjournment was strongly opposed by counsel for the defence who maintained, inter alia, that the claimant has had more than ample time to obtain the certified copies of the documents. She argued that as far back as 1986, the claimants had lodged a caveat against the application and they had known from then that documents in support of the application for title had been submitted to the titles' office. She submitted that the granting of an adjournment in light of the fact that the matter has been before the court for over fifteen years would cause considerable hardship on the defendant who has always been ready to defend the claim against her.

11 The Civil Procedure Rules (2002) (CPR), r. 39.7 gives a judge a general power to grant an adjournment of a trial. It reads: 'The judge may adjourn a trial onsuch terms as the judge thinks fit'. The power to grant an adjournment is thus discretionary. The learned authors of Blackstone's Civil Practice, 2004 (para. 59.9) noted that this discretion should, however, be exercised in accordance with the overriding objective and that where an adjournment is sought for reasons outside the control of the party applying, it should usually be granted.

12 In examining the first reason put forward for the need for an adjournment, I considered the length of time that it has taken for the matter to reach the stage for trial. The records reveal that the matter has been before the court since March, 1993 making it at time of trial over fifteen years. But even before that, the claimants had known about the...