Christopher Robinson v Rodney Garvey
| Jurisdiction | Jamaica |
| Judge | Brooks JA,Edwards JA,Fraser JA |
| Judgment Date | 13 November 2020 |
| Neutral Citation | JM 2020 CA 140 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | PARISH COURT CIVIL APPEAL NO COA2020PCCV00010 |
| Date | 13 November 2020 |
[2020] JMCA Civ 58
IN THE COURT OF APPEAL
THE HON Mr Justice Brooks JA
THE HON Miss Justice Edwards JA
THE HON Mr Justice Fraser JA
PARISH COURT CIVIL APPEAL NO COA2020PCCV00010
APPLICATION NO COA2020APP00173
Mrs Rita C Allen-Brown for the appellant
Mr Delroy Johnson for the respondent
In this appeal, Mr Christopher Robinson seeks to overturn a decision of the learned Judge of the Parish Court for the parishes of Kingston and Saint Andrew, in which she ordered recovery of possession against him in favour of the respondent, Mr Rodney Garvey. The property in dispute is registered land (the land) situated at Cypress Hall in that parish.
We heard the appeal on 12 and 13 October 2020, considered the submissions of counsel and made the following orders:
“1. The appeal is allowed;
2. The judgment and orders of the learned Parish Court Judge delivered on 8 August 2018 are set aside;
3. Costs to the appellant both in this court and the court below are to be agreed or taxed.”
At that time, we promised to put our reasons in writing. We now fulfil that promise.
Background
Mr Garvey and his grandmother, Laura Dalhouse, are the registered owners of the land, which they had brought under the operation of the Registration of Titles Act in May 2015. In November 2015, Mr Garvey filed a claim in the Parish Court for recovery of possession against Mr Robinson and another person. This claim was filed pursuant to section 89 of the then Judicature (Resident Magistrates) Act, which, by the time of the trial in 2018, was the Judicature (Parish Courts) Act (JPCA).
Mr Robinson resides and works on a portion of the land. He claims ownership of that portion. He states that he has been living there for over 40 years and pays property tax for it. He filed a special defence to Mr Garvey's claim. In that special defence he said:
“That the Plaintiff or his predecessor in Title has been out of possession for a period in excess of Twelve (12) years prior to the commencement of the action.”
After the learned Judge of the Parish Court had handed down her decision, Mr Robinson's then attorney-at-law filed a claim in the Supreme Court for the revocation of Mr Garvey's title, on the ground that it had been fraudulently obtained (the Supreme Court claim).
Mr Robinson also sought and obtained permission to appeal from the learned Judge of the Parish Court's decision.
In this appeal, Mrs Rita Allen-Brown, on behalf of Mr Robinson, applied for several documents to be admitted as fresh evidence. She argued that the evidence was not available to the court below, and it proves that the certificate of title was fraudulently obtained. Notably, she advanced that to receive some of the documents, an order from the Supreme Court was required. That order was only available as part of the Supreme Court claim. She further argued that these documents would have impacted the decision of the Parish Court.
Counsel for Mr Garvey, Mr Delroy Johnson, resisted the application. Mr Johnson submitted that the application should not be granted as some of the evidence counsel sought to adduce is not fresh evidence. He contended that at the trial, Mr Robinson's attorney-at-law suggested that he was in possession of some of the documents. Mr Johnson argued that in deciding whether to accept the evidence, this court should consider whether the evidence would have had any impact on the case. He argued that the evidence would not have impacted the learned Judge of the Parish Court's decision as a certificate of title can only be impeached where there is fraud, and there is no documentation proving fraud. He added that even if Mr Robinson could prove that Mr Garvey had fraudulently obtained the certificate of title, that would have to be done in, and determined by, another court. He relied, in part, on McMartin v The Queen [1964] SCR 484.
We granted, in part, the application to admit the fresh evidence. The documents which were admitted into evidence are:
Those documents featured in the hearing of the appeal.
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a. a certified copy of the death certificate of the grandmother of Ms Laura Dalhouse;
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b. copies of the defence and amended defences of Mr Garvey filed in the Supreme Court claim;
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c. copies of the court orders issued by the Supreme Court in the Supreme Court Claim;
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d. a copy of the application to bring the land under the operation of the Registration of Titles Law and its supporting documentation.
Mrs Allen-Brown advanced the following grounds of appeal:
“Ground of Appeal 1
The learned Senior Parish Judge erred in law and misdirected herself in making an order for recovery of possession under section 89 of the Judicature (Parish Court) Act (‘the Act[’) when there was a clear dispute of title which would cause the case to [evolve] to section 96 of the Act.”
“Ground of Appeal 2
The learned Senior Parish Judge fell into error in continuing the trial in the absence of [Mr Robinson's] Attorney-at-Law. Given the seriousness and complexity of the case [Mr Robinson] could not adequately [represent] himself and did not receive a fair trial which was prejudicial to him.”
“Ground of Appeal 3
The learned Senior Parish Judge erred in law and misdirected herself in holding that only the evidence given in the case can demonstrate whether there is a genuine dispute in title.”
“Ground of Appeal 4
The learned Senior Parish Judge fell into material error, misquoted the evidence and misdirected herself on her findings that:
a) [Mr Robinson] is not a witness of truth, and showed no history of his occupation of the subject land; and
b) [Mr Garvey] is a witness of truth”
The following issues arise from the above grounds:
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a. Whether the pleadings or the evidence demonstrated that there was a dispute as to title, thereby requiring the learned Judge of the Parish Court to consider the applicability of section 96 of the JPCA (grounds 1 and 3)
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b. Whether the trial should have proceeded in the absence of Mr Robinson's attorney-at-law (ground 2)
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c. Did the learned Judge of the Parish Court arrive at correct findings of fact? (ground 4)
Mrs Allen-Brown submitted that the learned Judge of the Parish Court erred when she considered the matter pursuant to section 89 of the JPCA. Learned counsel argued that, although Mr Robinson did not plead fraud in his written defence, the deficiency was not fatal to his case, as the Parish Court is not a court of record. 1 Notwithstanding the absence of that written pleading, she argued that the learned Judge of the Parish Court did recognise that Mr Robinson, in his defence, was advancing that Mr Garvey had fraudulently obtained the certificate of title. Accordingly, she submitted, the learned Judge of the Parish Court should not have heard the matter as she could not properly consider issues of fraud, as that is the remit of a judge of the Supreme Court.
Learned counsel also contended that, given that the annual value of the land exceeded the statutory limit of $500,000.00, which the learned Judge of the Parish Court was aware of from the tax receipts tendered into evidence, she should have considered the matter pursuant to section 96 of the JPCA. The learned Judge of the Parish Court, she submitted, would consequently have declined to hear the matter as it exceeded her jurisdiction.
Mrs Allen-Brown also argued that Mr Robinson has a right to legal representation, yet the trial proceeded in the absence of his counsel. She recognised that the learned Judge of the Parish Court had the jurisdiction to continue the trial in the absence of Mr Robinson's attorney-at-law. She contended however, that, in light of
the seriousness and complexity of the matter, the learned Judge of the Parish Court should have assessed that Mr Robinson was unable to properly represent himself and adjourn the matter so that he could obtain legal representation. The failure of the learned Judge of the Parish Court to allow Mr Robinson to seek counsel, she submitted, resulted in an unfair trialIn addition, Mrs Allen-Brown submitted that the learned Judge of the Parish Court erred when she ruled that she could only consider evidence when determining whether there was a genuine dispute of title. She argued that the learned Judge of the Parish Court was entitled to consider Mr Robinson's defence as well as the evidence. She relied, in part, on section 184 of the JPCA and Harold Francis and Another v Dorrett Graham [2017] JMCA Civ 39. She submitted that Mr Robinson's defence was adverse possession and fraud which raised a dispute as to title. This would provide the basis for the learned Judge of the Parish Court to consider the matter pursuant to section 96 of the JPCA.
Learned counsel argued that the learned Judge of the Parish Court erred when she found that Mr Robinson was not a credible witness as the learned Judge of the Parish Court misinterpreted and misquoted the evidence. She also took issue with the learned Judge of the Parish Court's finding that Mr Garvey was a witness of truth. She contended that Mr Garvey's evidence was riddled with false statements, which constituted fraud, and was an attempt to mislead the court. She invited this court to review the evidence and make the relevant inferences. She relied on Chin v Chin [2001] UKPC 7, in part, for this position.
Mr Johnson submitted, cumulatively, that the learned Judge of the Parish Court was correct to consider the matter pursuant to section 89 of the JPCA. He argued that the value of the portion of the land that Mr Robinson occupies is within the learned Judge of the Parish Court's jurisdiction. He contended that although Mr Robinson alleged fraud, he did not prove that allegation. If fraud was proved, he asserted, the...
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