Delkie Allen v Trevor Mesquita

• Jurisdiction: Jamaica
• Judge: HARRIS JA
• Judgment Date: 07 October 2011
• Neutral Citation: JM 2011 CA 95
• Docket Number: SUPREME COURT CIVIL APPEAL NO 8/2011
• Court: Court of Appeal (Jamaica)
• Date: 07 October 2011

BETWEEN

DELKIE ALLEN

APPELLANT

AND

TREVOR MESQUITA

RESPONDENT

[2011] JMCA Civ 36

BEFORE:

THE HON MRS JUSTICE HARRIS JA

THE HON MR JUSTICE MORRISON JA

THE HON MR JUSTICE HIBBERT JA (Ag)

SUPREME COURT CIVIL APPEAL NO 8/2011

JAMAICA

IN THE COURT OF APPEAL

MATRIMONIAL PROPERTY - Procedural appeal - Leave to bring claim for beneficial interest in property outside time prescribed - Order for sale of property - Injunction - Property (Rights of Spouses) Act

Maurice Manning and Miss Deborah Dowding instructed by Messrs Nunes Scholefield DeLeon & Co for the appellant

John Graham and Miss Peta-Gaye Mandison instructed by Messrs John G Graham & Co for the respondent

HARRIS JA

1 This is an appeal in which the appellant challenges the order of Mangatal J in which she ordered that an application made by the respondent to bring a claim outside of the time prescribed under the Property (Rights of Spouses) Act (PRSA) should stand. On 11 April 2011, we allowed the appeal, at which time costs to the appellant were agreed at $120,000.00.

2 The appellant and the respondent lived in a common law union. There is a dispute as to when the relationship commenced and when it ended. On 3 October 2008, the appellant, the registered proprietor of property known as Lot 17 Tanglewood, Priory, Saint Ann, registered at Volume 994 Folio 150, brought an action (HCV 4827 of 2008) against the respondent, for recovery of possession of the property, the recovery of rental and mesne profits. On 22 June 2009, the respondent filed a fixed date claim form (HCV 03221 of 2009) under the PRSA seeking the following:

A declaration that he is beneficially entitled to a 50% share of the property. 2. An order for the sale of the property; and 3. An injunction restraining the appellant from selling, disposing of or further encumbering the property.

1 The claim was filed outside of the time prescribed by the Act.

3 On 14 July 2009, the respondent filed an application for court orders seeking an order ‘that the Fixed Date Claim Form filed on the 22 ^nd June 2009 be permitted to stand’. After considering affidavits filed by the parties and submissions by their attorneys-at-law, the learned judge, having found that the application should be treated as one for an extension of time to regularize the late filing of the fixed date claim form, ordered that the fixed date claim form should stand. This order of the learned judge gives rise to some disquiet.

4 On 3 November 2009, pursuant to an application by the respondent, with the consent of the parties, it was ordered that the fixed date claim form be heard with claim HCV 4827 of 2008. At the pre-trial review, the following order was made:

‘The issue of whether the Claimant in Claim No. 2009 HCV 03221 is entitled to an extension of time within which to bring his claim pursuant to the [PRSA] is to be dealt with as a preliminary issue at trial.’

5 By his application, the respondent, having filed the fixed date claim form out of time, sought to invoke the court's jurisdiction under the PRSA for an extension of time. The principal object of the Act is to permit a spouse to bring a claim within a specified period. Section 2(1) of the Act defines a spouse in the following terms:

‘“spouse” includes -

• (a) a single woman who has cohabited with a single man as if she were in law his wife for a period of not less than five years;

• (b) a single man who has cohabited with a single woman as if he were in law her husband for a period of not less than five years, immediately preceding the institution of proceedings under this Act or the termination of cohabitation, as the case may be.’

6 Section 13(1) of the PRSA confers upon a spouse a right to apply to the court for division of property. It reads:

‘13 (1) A spouse shall be entitled to apply to the Court for a division of property -

• (a) on the grant of a decree of dissolution of a marriage or termination of cohabitation; or

• (b) on the grant of a decree of nullity of marriage; or

• (c) where a husband and wife have separated and there is no reasonable likelihood of reconciliation; or

• (d) where one spouse is endangering the property or seriously diminishing its value, by gross mismanagement or by wilful or reckless dissipation of property or earnings.’

7 Under section 13(2), an application must be made within a year of the dissolution of the marriage or of the termination of the cohabitation of the parties. It provides:

‘An application under subsection (1) (a), (b) or (c) shall be made within twelve months of the dissolution of a marriage, termination of cohabitation, annulment of marriage, or separation or such longer period as the Court may allow after hearing the applicant.’

8 The following grounds of appeal were filed:

‘a) The learned judge failed to give adequate regard to the fact that the evidence clearly showed that the Respondent had no reason for the delay in bringing his claim under the PRSA.

b) The learned Judge failed to attach any or any adequate weight to the fact that the Respondent was represented by Counsel from as early as January 2007, as demonstrated in the correspondence referred to in the List of Documents filed in Claim No. 2008 HCV 4827, the fact and significance of the Respondent's participation in the application for occupation and protection orders in the Resident Magistrate's Court or the fact that the Respondent lodged a caveat to protect the interest which he claims to have in the Appellant's property.

c) The learned Judge failed to make any finding of fact as to the date of separation in order to properly exercise her discretion in relation to the period of delay.

d) The learned Judge failed to attach any or any adequate weight to the fact that the Respondent's application to bring proceedings under the PRSA was at least one year outside the time limited for him to make any such application (on the Respondent's case).

e) The learned Judge fell into error by attaching too little weight to the absence of any explanation by the Respondent as to the reason for delay in bringing a claim under the PRSA.

f) By attaching more substantial weight to the relative prejudice between the parties, while suggesting that the (sic) ‘the application for an extension of time need not involve the Respondent too actively’, the learned Judge failed to give adequate regard to the fact that the application for extension of time was not merely procedural, but substantive, and involved interference with vested property rights.

g) The learned Judge failed to give any adequate regard to the Appellant's accrued right to a limitation of actions defence by treated (sic) the interaction between the parties as being an informal one, even in the face of evidence that the parties were engaged in legal actions before the Court from as far back as March 2007.

h) The learned Judge failed to give any adequate regard to the Appellant's accrued right to a limitation of actions defence by not properly applying the principles outlined in the cases of Re Kashmir and Re The James Westoll .’

9 Before the hearing of the appeal commenced, Mr Manning raised a point in limine as to the validity of the fixed date claim form. Although this is a preliminary point of law as to jurisdiction, which in this case is decisive of the appeal, in good form, it would have been preferable for the appellant to have raised it as a ground of appeal rather than as a preliminary point.

10 Mr Manning submitted that the respondent's claim was brought under section 13(2) of the PRSA and the learned judge ruled that she allowed the respondent an extension of time and ordered that his fixed date claim form should stand. The fixed date claim form, he argued, was filed outside of the time prescribed by the Act and until the court has granted leave to an applicant to bring his claim, no valid claim can be brought, and as a matter of law, the validity of the claim filed in June 2009 could not have been corrected by a subsequent order of the court.

11 Mr Graham conceded that there was nothing which he could usefully advance in respect of the jurisdictional point raised.

12 Although section 13(1) of the PRSA permits a spouse to make an application for division of property, section 13(2) dictates that the requisite application shall be made within the prescribed 12 month period. The word ‘shall’ is not mandatory in light of the concluding words of the section, namely, ‘or such longer period as the Court may allow after hearing the applicant’. This shows that the legislature, in its wisdom, empowers the court to extend the period within which an application may be made under the Act.

13 Admittedly, the Act does not outline the factors to be taken into account when considering an extension of time. This, however, would not preclude the court from giving consideration to Mr Manning's submissions, neither would the fact that there is some dispute as to the date on which the parties ceased cohabitation render the court incompetent to consider them. The respondent has acknowledged that the fixed date claim form is out of time. A party who seeks leave to bring an action in circumstances where leave is required, must satisfy the court that he is entitled to place himself under the umbrella of the court's jurisdiction.

14 Where the factors governing an extension of time are not provided for by statute or the rules of court, a court of first instance or an appellate court may, in exercising its inherent jurisdiction, give consideration to the conditions which generally support an extension of time to do an act or to comply with any rule or law. It follows that, in determining whether an extension of time should be granted, a court ought to follow the general procedure underpinning an entitlement to such grant. Thus, in seeking an extension of time to file his...