Edwards (Hubert) v Milton Kelly & Wilhelmina Kelly

• Jurisdiction: Jamaica
• Judge: SYKES J.
• Judgment Date: 02 November 2009
• Judgment citation (vLex): [2009] 11 JJC 0201
• Court: Supreme Court (Jamaica)
• Date: 02 November 2009

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2008 HCV 00303

BETWEEN

HUBERT EDWARDS

CLAIMANT

AND

MILTON IVANHOE KELLY

FIRST DEFENDANT

AND

WILHELMINA KELLY

SECOND DEFENDANT

IN CHAMBERS

Catherine Minto instructed by Nunes Scholefield Deleon and Company Lawrence Haynes for he defendants

CIVIL PROCEDURE - Defence - Application to extend time to file - Whether defence has any real prospect of success - Extinction of title to land - Civil Procedure Rules 2002, Rule 25.1(b)(c) and (i), 26.1(2)(k) and 26(8) - Whether Rule 26.8 applicable to extend time to file defence

APPLICATION TO EXTEND TIME TO FILE DEFENCE - WHETHER DEFENCE HAS ANY REAL PROSPECT OF SUCCESS - EXTINCTION OF TITLE TO LAND - CIVIL PROCEDURE RULES - RULE 25.1 (b), (c), (i), 26.1 (2) (k), 26.8 - WHETHER RULE 26.8 APPLICABLE TO APPLICATION TO EXTEND TIME TO FILE DEFENCE

SYKES J

1 There are two applications before the court. One is an application by Mr. Edwards, the claimant, for judgment against both defendants, Mr. and Mrs. Kelly, ("the Kellys"), and consequential orders. The other is an application by the Kellys for extension of time within which to file a defence. I heard the application for extension of time within which to file defence first.

The history before and after the filing of the claim

2 Much of what is stated is not in dispute and indeed the Kellys in their affidavit have provided much of the information that the claimant did not have.

3 Mr. Hubert Edwards, a retired cabinet maker, is the registered proprietor of lot 224 South Haven in the parish of St. Thomas, the home of National Hero, Paul Bogle. Mr. Edwards spent 47 long years in England and purchased the disputed land in 1971. The land is registered at volume 999 folio 465 of the Register Book of Titles.

4 The Kellys, in March of 1972, became fee simple owners of the adjoining land, lot 223, registered at volume 999 folio 964 of the Register Book of Titles. They chose to make their retirement home there after many years of hard work and toil in England as a hospital porter and a hospital attendant respectively. The Kellys, like Mr. Edwards, are well on their way to becoming octogenarians.

5 When the Kellys purchased the land, they say that the boundaries were pointed out to them by the vendor's agent. Thereafter they gave instructions to a builder to erect a house on the land. This was done. The Kellys moved into their new abode in 1975 when the construction was completed.

6 Unknown to them, the builder had erected the house in such a manner that part of it was on the adjoining property owed by Mr. Edwards. It was in 2004, nineteen years later, that the error was discovered. The discovery came about because Mr. Edwards tried to sell the land and actually entered into a written agreement for sale with a third party. It was when the purchaser engaged the services of a surveyor that it was discovered that the Kellys's home had encroached on Mr. Edwards's land. The result was that the contract was cancelled because Mr. Edwards was not able to deliver a vacant lot as required by the sale agreement.

7 Mr. Edwards and the Kellys tried to resolve the matter without litigation but that has failed primarily because the Kellys have not been able to come up with the money to purchase the land on which they have encroached.

8 Mrs. Kathleen Betton-Small represented the Kellys. Mr. Edwards, at one point, was represented by the firm of Myers, Fletcher and Gordon and later by the firm of Nunes, Scholefield, Deleon and Company.

9 The correspondence indicates that the Kellys accepted that they had trespassed on Mr. Edwards' land. There is a letter dated March 29, 2005, from Mrs. Betton-Small to Mrs. Natalie Farrell-Ross of Myers, Fletcher and Gordon, asking, rather politely, whether Mr. Edwards "is willing to sell the land and the terms thereof" because the Kellys "would be willing to consider purchasing" the land. Mrs. Farrell-Ross responded by letter and facsimile dated April 5 and September 7, 2005, respectively. To these two communications, Mrs. Betton-Small stated that "our clients are interested in purchasing the land but have informed us that they are waiting on their son who has promised to assist them with the required funds."

10 On January 22, 2008, Mr. Edwards launched a claim against the Kellys in which he is asking for an order requiring the Kellys to pull down and remove that part of the concrete structure that has encroached on his land. He is also seeking an injunction restraining them from any further encroachment on the land. Finally, he is seeking damages for trespass, and interest.

11 The claim form and particulars of claim as well as the necessary accompanying documents, prescribed by the rules, were served on the Kellys on February 16, 2008.

12 The Kellys did not file a defence. Miss Minto writes to Mrs. Betton-Small indicating that her client would be prepared to sell the land for JA$1.9m. Mrs. Betton-Small responds by saying that her clients, the Kellys, were offering JA$1.9m for the land.

13 Miss Minto wrote again on August 27, 2008. Mrs. Betton-Small revealed, in a letter dated September 2, 2008, that she has been unable to get instructions from her client. This information then moved Mr. Edwards to seek final judgment since there was no prospect of settling the matter.

14 By notice of application for court orders, filed on December 19, 2008, Mrs. Betton-Small applied to have her name removed from the record on the grounds that (a) the Kellys have ceased communicating with her and (b) she could not continue to represent the Kellys without instructions.

15 The Kellys are now represented by Mr. Haynes. On June 1, 2009, he filed an application to extend time within which to file a defence. The grounds of this application are (a) the Kellys were relying on their former attorneys to indicate to when the defence should be filed and (b) they have a real prospect of successfully defending the claim.

16 Mrs. Wilhelmina Kelly swore an affidavit in support of the application. The fact of the encroachment is not in issue. She admits that she was told about the encroachment in 2004. She also agrees that there were discussions between the parties. Mrs. Kelly confirms that her children (not just a son) promised to help but to date, "nothing is forthcoming from them" (see para. 8 of affidavit dated May 27, 2009).

17 Crucially, she says in paragraph 9, that "throughout the time we were waiting to hear from our children we did not think about filing a defence nor were we aware that we had a Defence (sic) to this action."

The proposed defence

18 It goes without saying that unless there is a real prospect of success then the extension of time within which to file a defence should not be granted because it would a waste of the court's resources to entertain a hopeless case.

19 Miss Minto has sought to resist the application by submitting that the law does not indicate that the Kellys have any prospect let alone a real prospect of successfully defending the claim. I wish to say that, in my view, Miss Minto's propositions on the law, have not truly embraced the significant change in the law of Jamaica that has occurred since the Privy Council decision of Wills v Wills (2003) 64 W.I.R. 176. The Board applied the House of Lords case of Pye (J.A.) Oxford Ltd v Graham [2003] A.C. 419 and approved the English Court of Appeal's decision of Buckinghamshire County Council v Moran [1990] Ch 623. Miss Minto seems horrified by the possibility that the holder of the legal title ("the paper owner") may have his title extinguished by his inactivity. Counsel still seems to think that some kind of forceful exclusionary act is required from the trespasser before the paper owner can be held to be excluded from his property. As Lord Browne-Wilkinson puts it in Pye, any notion that there has to be some kind of "confrontation" between the squatter and the paper owner is wrong (see para. 38).

20 It cannot be overstated that any case that has a contrary statement of law to that found in Wills v Wills must now be accepted as incorrect as far as Jamaica is concerned. This applies to the Jamaican Court of Appeal's decision in Archer v Georgianna Holdings Ltd. (1974) 21 W.I.R. 431.

21 Lord Walker in Wills v Wills pointed out, after tracing the legislative history relevant to this area of law, that the Jamaican Limitation Act of 1881 closely followed the English Limitation Act of 1833, as amended by the Real Property Limitations Act of 1874. The effect of the English Act and the Jamaican legislation was to abolish the "highly technical doctrine of adverse possession (and the converse notion of non-adverse possession)" (see para. 14).

22 His Lordship indicated that despite the abolition of the technical doctrine, the expression "adverse possession" continued to be used by lawyers but the meaning had changed. What it now means is that "sort of possession which can with the passage of years mature into a valid title, that is possession which is not by licence and is not referable to some other title or right" (see para. 17)

23 Lord Walker noted that despite the legislation, English and Jamaican courts were stubbornly resistant to the new idea introduced by the legislature. Both courts sought "to give the expression a more technical meaning and to require proof that the squatter used the land in a manner inconsistent with the owner's intentions" (see para. 18).

24 Lord Walker concluded at paragraph 19, in relation to all the important decisions of the English and Jamaican Courts of Appeal, including Archers case.

All those decisions may have been correct on their special facts. All of them rightly stressed the importance, in cases of this sort, of the Court carefully considering the extent and character of the land in question, the use to which it has been put, and...