Dewdney (Albertha), Olive Knight & Marcia Dewdney v Enid Louise Brown-Parsons et Al
| Jurisdiction | Jamaica |
| Judge | BROOKS, J. |
| Judgment Date | 20 August 2009 |
| Judgment citation (vLex) | [2009] 8 JJC 2001 |
| Court | Supreme Court (Jamaica) |
| Date | 20 August 2009 |
| Docket Number | CLAIM NO. 2004 HCV 421 |
CIVIL PROCEDURE - Inheritance - Residuary estate - Failure to attend trial - Whether judgment should be set aside - Whether applicant has satisfied the requirements for relief from sanction - Whether act of fencing is sufficient to acquire possessory title
Although Florence Dewdney died testate in the year 1968 and her will was probated, Florence's grand-children and daughter-in-law have brought a claim in their own names, asserting that they are the beneficial owners of a parcel of land which formed part of Florence's estate. The claimants also seek to have rescinded, a registered title comprising the said land. The registration, they say, was secured by fraud.
The defendants to the claim are Mrs. Enid Louise Brown-Parsons and her son Mr. Give Newman. Mrs. Brown-Parsons is, however, the sole registered proprietor of the disputed land She is Florence's daughter and also a beneficiary of Florence's estate.
Despite the question-marks concerning their status as claimants and Mr. Newman's as a defendant, the Dewdney clan have secured a judgment against Mrs. Brown-Parsons and Mr. Newman. This occurred when Mrs. Brown-Parsons and her previous attorneys-at-law arrived at an impasse. That situation resulted in her failure to meet deadlines set at the Case Management Conference. The statements of defence were struck out as a consequence and judgment entered pursuant to an application to a judge of this court. An application to set aside the judgment was refused and that latter decision is the subject of an appeal to the Court of Appeal. Mrs. Brown-Parsons now seeks a stay of execution of the judgment pending the appeal being decided.
The questions to be decided are what principles govern the consideration of the application for a stay and whether the judgment should be stayed in these circumstances.
Applicants" submissions
Miss Cummings, on behalf of Mrs. Brown-Parsons, submitted that if the judgment was enforced and the defendants were successful in their appeal then the appeal would be rendered nugatory. The main reason behind that submission was that the Dewdneys have, through their attorneys-at-law, threatened to demolish Mrs. Brown-Parsons' house. Members of the Dewdney family have also entered the land and cut fruit trees growing there. It is said that they are likely to cut other trees if not restrained by the court. Miss
Cummings also submits that:
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1. The appeal has a good prospect of success.
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2. A stay will not result in any detriment or prejudice to the Dewdneys.
Respondent's Submissions
Miss Archer's submissions, on behalf of the Dewdneys, may be summarized thus:
It is rule 42.13.of the Civil Procedure Rules (CPR) which governs this application. That rule requires evidence of developments which could not have been put before the court prior to the judgment being delivered. There is no evidence of any such development supporting this application.
The court does have an inherent jurisdiction to control its process which includes the power to grant of a stay of execution of its judgments. To benefit from the court's discretion to grant a stay, however, the applicant must show a level of hardship which meets the standard required by the court. The applicant must also show that his appeal would be stifled if the stay were granted.
Mrs. Brown-Parsons has not met the required standard and therefore the application should be refused.
In support of her submissions, Miss Archer cited paragraph 71.38 of Blackstone's Civil Practice 2004 and Hammond Suddard Solicitors v Agrichem International Holdings Ltd. [2001] EWCA Civ. 2065 (delivered 18/12/2000).
Bases on which a stay may be granted
Jurisdiction to grant a stay of execution
Although Miss Archer conceded that this court has an inherent jurisdiction to stay execution of its judgments, I found, in preparing this opinion, that the matter was not as definitive as I had first assumed. It has long been the law that the mere lodging of an appeal does not operate as a stay of the order or judgment of the court. So it was., by virtue of section 21 (1) (a) of the Judicature (Court of Appeal) Rules 1962 and so it is, by virtue of rule 2.14 of the Court of Appeal Rules 2002 which replace the 1962 rules. Rule 2.14 presently gives authority to the Court of Appeal to order a stay, if it is so minded What however gives this court the power to stay execution of its orders or judgments?
By rule 42.13 of the Civil Procedure Rules 2002 (the CPR) a judgment debtor may apply to this court for it to stay execution of a judgment or order which it has made The rule states as follows:
"A judgment debtor may apply to the court to stay execution or other relief on the grounds of -
(a) matters which have occurred since the date of the judgment or order; or
(b) facts which arose too late to be put before the court at trial, and the court may grant such relief, upon such terms, as it thinks just"
The term "judgment debtor" is not defined in Part 42 of the CPR. It is, however. defined in Part 43 (for that Part) as meaning, "a person who is liable to enforcement under (a) judgment or order, even though the judgment or order is not a money judgment". (See rule 43.1.) The English Civil Procedure Rules have a similar, though not identical, provision to rule 42.13. RSC 45.11 stipulates:
"Without prejudice to Order 47, rule 1, a party against whom a judgment has...
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