Demetri Jobson v Administrator General of Jamaica (Administrator for the Estate of Gilbert Baron Jobson, deceased)

 
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[2015] JMSC CIV 253

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO. 2004 HCV02245

In the Matter of the Estate of Gilbert Baron Jobson, late of Nineteen Miles, Coopers Hill in the parish of Saint Andrew, Businessman, deceased, intestate.

and

In the Matter of All that parcel of land known as Orange Grove in the parish of Trelawny, comprised in Certificate of Title registered at Volume 29 Folio 7 of the Register Book of Titles.

and

In the Matter of an Application for the opinion and direction of the Court under Section 39 of the Administrator-General's Act.

and

In the Matter of the Administrator General's Act, the Trustee Act, Trustee Attorneys and Executors (Accounts and General) Act, the Real Property Representative Act regarding the management of the estate of Gilbert Baron Jobson

Between
Demetri Jobson
First Claimant

and

Max Gilbert Jobson
Second Claimant
and
Administrator General of Jamaica (Administrator for the Estate of Gilbert Baron Jobson, deceased)
First Defendant

and

New Falmouth Resorts Limited
Second Defendant

Mrs. Denise Senior-Smith instructed by Oswest Senior-Smith & company for the claimants

Mr. Ransford Braham Q.C instructed by Miss Jaqueline Wilcot for the first defendant

Mr. Keith Bishop and Julliet Mair Rose instructed by Riam Esor & Company for the second defendant.

Civil Procedure — Application to set aside order — Fraud

Simmons, J
1

This is an application by the claimants who are the children and beneficiaries in the estate of Gilbert Baron Jobson to set aside the order of Rattray J which was made on the 25 th April 2005. By virtue of that order, the first defendant was authorized to “ratify” the sale of a parcel of land which was owned by Gilbert Baron Jobson (the deceased) who died on the 23 rd day of May 1980. The deceased had twenty one (21) children who with the exception of the second claimant were all minors at the date of his death.

2

The land which is registered at volume 29 folio 7 of the Register Book of Titles is situated at Orange Grove in the parish of Trelawny (the land).

3

The order was made pursuant to an application by the first defendant under section 39 of the Administrator General's Act (the Act). The application was brought by way of a Notice of Application, the grounds of which were stated as follows:-

  • i) All attempts by the applicant to acquire the requisite receipts evidencing payment of the full purchase price pursuant to the sale have been unsuccessful;

  • ii) It has been thirty-seven years since the date of the purchase agreement, as a result, it is highly improbable that the required evidence will ever be obtained;

  • iii) The best available evidence of payment of the purchase price consists of photocopied documents.

4

The application was supported by the affidavit of the Administrator General, Lona Millicent Brown which was dated and filed on the 22 nd September 2004.

5

In that affidavit, the Administrator General stated that the land was the subject of an Option to Purchase between the deceased and J. Cecil Abrahams who was the second defendant's agent. She also stated that the second defendant which had been in occupation since 1973 had been “insistently demanding” that the land be transferred in completion of the sale.

6

She also indicated that in order to satisfy herself that the second defendant had paid for the land in full, she had requested information from the deceased's Attorneys-at-law, Messrs. Livingston, Alexander and Levy. However, that information was not forthcoming. The Administrator General deponed that she had received a letter from Mr. Raymond Chisholm, a director of the second defendant which stated that the option had been exercised and payment sent to Messrs. Livingston, Alexander and Levy. Mr. Chisholm also provided a copy of a Bill of Costs dated the 5 th September 1969 which indicated that the second defendant's Attorneys-at-Law Messrs. Clinton, Hart and Company had paid the sum of twenty six thousand nine hundred pounds (£26,900.00) to the deceased's Attorneys.

7

The Administrator General ended by indicating that since she did not have “cogent” evidence of the payment of the purchase price she was seeking the authorization from the court to ratify and complete the sale.

8

On the 3 rd day of May 2012 the claimants filed a Fixed Date Claim Form in which they have applied to set aside the order in addition to seeking other relief. A Notice of Application was filed by the claimants on the 21 st May 2012 in which the claimants applied to be added as parties and to set aside the order of Rattray, J. They were successful in their bid to be added as parties leaving this matter to be determined. The grounds on which the claimants rely are as follows:-

9

The application is based on the following grounds:-

  • i) That the applicants were not parties to the matter; ii) That the applicants were not served with the application by the first defendant to ratify the sale of the land;

  • iii) The applicants were not present at the hearing of the matter;

  • iv) That there was a good reason why they did not attend;

  • v) That the Notice of Application and the order have not been served on them; vi) That they had a right to be served;

  • vii) It is likely that had they attended some other order would have been made; viii) That the section under which the application was made did not entitle the Administrator General to ratify an option which she could not conclude had been exercised; ix) That the land was transferred to the second defendant in the absence of any proof that it had paid the purchase price.

Issues
10

The issue which arise are:-

  • i) Whether the Court has the jurisdiction to set aside the order; and if so,

  • ii) Whether there is any basis on which the jurisdiction of the Court should be so exercised.

Claimants Submissions
11

Mrs. Senior-Smith submitted that had the claimants been parties to the proceedings before Rattray, J a different order would have been made. She stated that as beneficiaries in their father's estate they ought to have been served with the Notice of Application filed by the Administrator General, which sought the court's directions regarding the transfer of the land. She also stated that they were never served with the order and only learnt of its existence through Mr. Roosevelt Thompson and as a result sought the Court's permission to intervene in the matter and were added as parties on the 28 th May 2014.

12

Counsel also stated that the application has been made in a timely manner as time has not begun to run against them as up to this time the claimants have not been served with the order. She referred to the affidavit of Demetri Jobson dated the 21 st September 2015 in which he states that in light of the fact that they had no notice of the application, he and his brother Max had a good reason for not attending the hearing.

13

It was submitted that if they had been present the order would not have been made. Counsel stated that when the matter was heard by Rattray J, the applicants failed to disclose that at the time when the option was signed New Falmouth Resorts Limited was not in existence. She relied on the case of Harold Morrison et al v. Hatfiled Developers Limited [2012] JMCA Civ. 122 to state that in order for a contract which was entered into by an agent to be valid, his principal must be in existence at the time.

14

Mrs. Senior – Smith also made the point that the fact that the Option was not exercised by Cecil Abrahams but by New Falmouth Resorts Limited had not been disclosed to the Court. She stated that no receipt was presented to the court as evidence of payment to exercise the option and no documents indicating that Mr. Gilbert Jobson received the money which was itemized in the Bill of Costs. Counsel also indicated that the Option excludes a particular part of the land which is still registered in the name of the second defendant. She stated that that land was still being treated by the deceased as his own after the date of the option. This being, she said, is evidenced by the fact that he granted an easement in 1966 and 1970. It was also submitted that in the circumstances there was actual fraud on the part of the second defendant.

15

She argued that had the claimants been present they could have challenged the documents that were presented to the court.

16

It was also argued that section 39 of the Administrator Generals Act does not permit the making of an application to ratify the option which the Administrator General could not on her own, conclude had been exercised. Counsel submitted that in such circumstances the beneficiaries ought to have been advised. It was also argued that the Administrator General failed to act in their best interest.

17

Counsel also submitted that the wrong procedure was used by the Administrator General who brought the matter to the court on a Notice of Application instead of a Fixed Date Claim form. She said that where the former method was used a Judge could not insist on service of the documents.

First defendant's submissions
18

Mr. Braham Q.C submitted that in light of the fact that the Administrator...

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