Beverley Harvey and Another v Gloria Smith and Another

• Jurisdiction: Jamaica
• Judge: Harris P(Ag),McINTOSH JA,Brooks JA,Harris P (Ag)
• Judgment Date: 29 June 2012
• Neutral Citation: JM 2012 CA 57
• Docket Number: SUPREME COURT CIVIL APPEAL NO 118/2011
• Court: Court of Appeal (Jamaica)
• Date: 29 June 2012

[2012] JMCA Civ 29

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mrs Justice Harris P (Ag)

The Hon Mrs Justice McIntosh JA

The Hon Mr Justice Brooks JA

SUPREME COURT CIVIL APPEAL NO 118/2011

Between

Beverley Harvey

1st Appellant

and

Elaine Harvey (In their capacity as administratrices of the estate of the late Naomi Francis, deceased)

2nd Appellant

and

and

Gloria Smith

1st Respondent

Phillip Smith

2nd Respondent

Mrs Marvalyn Taylor-Wright instructed by Taylor-Wright and Co for the appellants

Leighton Miller instructed by Lyn-Cook, Golding and Co for the respondents

REAL PROPERTY - Whether land formed part of deceased estate - Whether respondents' ocupation unlawful - Whether defence disclosed any reasonable defence

Harris P(Ag)

1 I have read, in draft, the judgment of Brooks JA and I agree with his reasoning and conclusion. I have nothing further to add.

McINTOSH JA

2 I too have read the draft judgment of Brooks JA and agree with his reasoning and conclusion.

Brooks JA

3 The appellants, Beverley Harvey and Elaine Harvey, seek to evict the respondents, Gloria Smith and Phillip Smith, from the property, which the respondents say, has been their home, since 1976. The property comprises land, which is situated at Golden Spring, in the parish of Saint Andrew, and a house, which Mrs Smith built on it.

4 The appellants are the duly appointed administratrices of the estate of the late Naomi Francis. They filed a claim in the Supreme Court seeking a declaration that the land forms part of Naomi Francis' estate and that the respondents' occupation of it is unlawful.

5 The respondents filed a defence to the claim. The defence denied any unlawful occupation and averred that the land in issue had been given to Mrs Smith by Naomi Francis' son, Reuben. Mrs Smith asserted, in the defence, that in pursuance of that gift, she had built a concrete structure on the land and had had the land surveyed.

6 The appellants applied to have the defence struck out on the basis that, among other things, it failed to disclose any reasonable defence. On 21 October 2011, George J (Ag) made the following orders:

‘(1) The Claimants' Notice of application filed on 17/2/11 dismissed.

(2) The claim proceed as if started by fixed date claim form in accordance with Rule 8.1(4)(b).

(3) No Order as to Costs.

(4) Counsel for claimant to prepare, file and serve this order.

(5) Leave to appeal granted.’

7 The appellants, being dissatisfied with that decision, have appealed to this court asking that that orders be set aside and the defence be struck out. The essence of the appeal is the question of whether George J (Ag) erred in the exercise of her discretion when she refused to strike out the defence.

8 In this judgment, I shall give a brief chronology of the relevant facts, set out the grounds of appeal and outline Mrs Taylor-Wright's submissions on behalf of the appellants. It is against that background that I shall examine the comprehensive written judgment of George J (Ag), to determine whether she erred in a manner, which would allow this court to disturb her decision.

The chronology

9 A chronology of the events, which seem to be undisputed, may assist the understanding of the analysis. I therefore outline those events below:

• 1. Mrs Smith entered into occupation of the premises in 1976 with the permission of Naomi Francis, the then proprietor of the land. It is disputed whether it was by way of licence or tenancy. There was, however, a payment for the privilege of occupation.

• 2. In January 1980, Naomi Francis directed Mrs Smith to make payments to Reuben instead of to her. Those instructions were obeyed.

• 3. Phillip Smith, who is Mrs Smith's son, was born in July 1980.

• 4. Naomi Francis died testate in December 1984. It appears, subject to the will being produced, that the land at Golden Spring was devised to Reuben. He asserted that devise in his own will.

• 5. Mrs Smith has produced a document, dated 12 June 2001, whereby Reuben purported to certify that he had given one half square of the land at Golden Spring to her. The authenticity of the document is strenuously disputed by the appellants.

• 6. Sometime during 2001 Mrs Smith ceased paying for her occupation of the land.

• 7. Sometime after June 2001, she partially converted her board house to a concrete structure.

• 8. In December 2002, she had the land, which she occupied, surveyed. The surveyor measured the land as being 507.95 square metres.

• 9. Reuben died in or about 2005.

• 10. The appellants produced a document, dated 20 January 2005, which is said to be Reuben's last will and testament.

• 11. On 4 July 2006 Letters of Administration with will annexed, in the estate of Naomi Francis, were granted to the appellants.

• 12. The present claim was filed in October 2008. At or about the same time, the appellants filed at least three other claims, against other persons, apparently seeking to secure possession of other portions of Naomi Francis' land from those persons as well.

• 13. The Smiths filed their statement of defence on 17 December 2008.

• 14. An amended claim form and particulars of claim were filed on 6 October 2009.

The grounds of appeal

10 The grounds of appeal may, conveniently, be set out in full:

‘1. The learned trial Judge erred in the exercise of her discretion when she refused to strike out the Defence for the reasons set out in her written judgment dated October 21, 2011, by

• 1) being influenced by irrelevant factors and considerations.

• 2) failing to take into account the relevant factors and considerations

2. The learned trial judge failed to correctly apply the principles of law applicable to striking out proceedings and in particular the principle of ensuring the possibility of a fair trial.’

The submissions

11 Mrs Taylor-Wright raised a number of issues, some of which were not immediately evident from a perusal of the grounds of appeal. The essence of her major submissions may be summarised as follows:

• 1. The learned judge erred in failing to recognise, that in challenging the title of Naomi Francis, the respondents were challenging Reuben's title, which title they were relying on as the basis of their own; in those circumstances they have no defence and their statement of case ought to have been struck out.

• 2. The learned judge erred in failing to recognise that the statement of defence failed to show any defence to the claim brought in trespass or in fraud and that to allow the statement of defence to stand would ‘militate against a fair trial’.

• 3. The learned judge erred in failing to recognise that the statement of defence did not raise any issue which deserved a trial and it has no reasonable prospect of success.

The analysis

12 An appellant who seeks to overturn a decision of a judge of the Supreme Court, which decision is based on an exercise of that judge's discretion, undertakes an arduous task. That is because an appellate court will not set aside such a decision on the basis that it would have come to a different conclusion in the circumstances (see The Attorney General of Jamaica v John Mackay [2012] JMCA App 2). In Mackay, Morrison JA, with whom the rest of the court agreed, reiterated the principle that an appellate court may exercise an independent discretion in limited circumstances only. He quoted from Lord Diplock's judgment in Hadmor Productions Ltd and others v Hamilton and others [1982] 1 All ER 1042 at page 1046 b:

‘[The appellate court] must defer to the judge's exercise of his discretion and must not interfere with it merely on the ground that the members of the appellate court would have exercised the discretion differently.’

13 In Jamaica Citizens Bank Ltd v Yap (1994) 31 JLR 42, at page 51C, Rattray P highlighted the portion of Lord Diplock's speech in Hadmor, which identified the limited circumstances in which this court would exercise an independent discretion. These include ‘the ground that it was based on a misunderstanding of the law or of the evidence before him or on an inference that particular facts existed or did not exist…’ (page 1046c).

14 Where the discretion exercised is in respect of an application to strike out a statement of case, an appellate court is also loath to interfere with the exercise of a judge's discretion therein, once the judge has demonstrated that she has considered all the alternatives (see Biguzzi v Rank Leisure plc [1999] 4 All ER 934). It is also an established principle that statements of case should only be struck out ‘in plain and obvious cases’ (see page 29 of S & T Distributors Ltd and another v CIBC Jamaica Ltd and another SCCA No 112/2004 (delivered 31 July 2007).

15 Mrs Taylor-Wright, in her written submissions at paragraph 12, argued that the ‘only question [to be resolved in this appeal] is whether a legitimate basis for lawful ownership in the [respondents] has been shown in the Defence on which they can reasonably defend the claim’. Learned counsel, in her oral submissions, put the issue a little differently, she said:

‘The only question is whether the defence, on its face, shows a legitimate basis for lawful occupation.’

Learned counsel, however, raised several issues in the context of that question. In light of what has been said above, the issue is whether George J (Ag) improperly exercised her discretion in addressing those issues and answering that question.

16 Few would disagree with the assessment that the statement of defence, filed in this claim, was settled with scant regard for the provisions of the Civil Procedure Rules (the CPR). Few, also, would disagree with the deprecatory terms used by George J (Ag) in describing the conduct of the case, up to the point of the hearing before her, by the attorneys-at-law representing the respondents in the court below. The learned judge...