Enda Watson v Trevor Officer & Joslyn Laing

• Jurisdiction: Jamaica
• Judge: ANDERSON J.
• Judgment Date: 08 October 2003
• Judgment citation (vLex): [2003] 10 JJC 0802
• Court: Supreme Court (Jamaica)
• Date: 08 October 2003
• Docket Number: SUIT NO. C.L. W-016/2002

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

SUIT NO. C.L. W-016/2002

BETWEEN

EDNA WATSON

PLAINTIFF

AND

TREVOR OFFICER

FIRST DEFENDANT

JOSLYN LAING

SECOND DEFENDANT

CIVIL PROCEDURE - Interlocutory relief - Leave to file defence out of time - Whether admissions by second defendant are clear - Whether leave to defend should be granted - Judicatue (Civil Procedure Code) Law, s. 307

ANDERSON J

1 In this matter, both the Plaintiff and the second defendant have filed summonses seeking interlocutory relief. During the course of the hearing, which extended over several days over a period of months, and evoked the citation of scores of authorities, the first defendant also applied for and was granted permission to file his defence out of time.

2 The Plaintiff, Ms. Edna Watson, had previously been the registered proprietor of certain lands in Portland, registered at Volume 1140 Folio 126 in the Register Book of Titles. The said land is now registered in the name of the second defendant, Laing, who claims he purchased it from or through the first defendant, he, the first defendant having at the relevant time of that agreement, been the beneficial, if not the legal, owner thereof. I state these, not as findings of fact, as the court is not in any position, nor indeed is it at this stage required, to make any such finding, but merely to contextualize the nature of the applications with which the court must now deal.

3 The Plaintiff's summons seeks, pursuant to Section 307 of the Judicature (Civil Procedure Code) Law, judgment for the Plaintiff based upon admissions purportedly made by the said defendant in his pleadings and/or affidavits filed herein. Section 307 of the Judicature (Civil Procedure Code) Law provides as follows:-

"Any party may, at any stage of a cause or matter where admissions of facts have been made, either on the pleadings or otherwise, apply to the Court or a Judge for such judgement or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the Court or a Judge may, upon such application, make such order or give such judgement as the Court or a Judge may think just".

4 In particular, the Plaintiff seeks relief in terms of the following Orders:

• 1. Judgment be entered for the plaintiff against the second defendant in terms of the statement of claim filed herein pursuant to the provisions of section 307 of the Judicature (Civil Procedure Code) Law on the basis of admissions of facts made by the second defendant herein on the pleadings and/or otherwise including in his defence dated 14 March, 2002 and filed 15 March, 2002 and in his affidavit sworn 8 May, 2002 and filed 9 May, 2002.

• 2. Alternatively to Order 1 hereof, that such order or judgment as this Honourable Court may think just be made or given in favour of the plaintiff against the second defendant pursuant to the provisions of section 307 of the Judicature (Civil Procedure Code) Law upon the basis of admissions of facts made by the second defendant on the pleadings and/or otherwise including in his said defence and in his said affidavit.

• 3. Further to order 1 or order 2 hereof, that the plaintiff be granted leave to amend her statement of claim herein in accordance with the draft amended statement of claim exhibited to the plaintiffs affidavit in support of this application for the purposes of incorporating in her statement of claim admissions of fact made herein by the second defendant in his said defence and in his said affidavit and of making such further amendments as are rendered necessary thereby.

• 4. Alternatively, that the second defendant's defence and counter-claim dated 14 March, 2002 be struck out on the grounds that the defence discloses no reasonable grounds of defence and/or is frivolous, vexatious and/or oppressive and/or otherwise amounts to an abuse of process and that the counter-claim discloses no reasonable cause of action and/or is frivolous, vexatious and/or oppressive and/or otherwise amounts to an abuse of process.

• 5. That in the event that this application is not heard and determined on the date upon which it is initially set down for hearing, an order that the second defendant forthwith deliver up possession of the property comprised in Volume 1140 Folio 126 of the Register Book of Titles to the plaintiff.

• 6. Alternatively to order 5 hereof, in the event that this application is not heard and determined on the date upon which it is initially set down for hearing, an order that the second defendant, by himself, his servants and/or agents be restrained, pending the hearing and determination of this application, from selling, disposing of, mortgaging, charging, encumbering or dealing in any manner with the property comprised in Volume 1140 Folio 126 of the Register Book of Titles.

• 7. That the second defendant pay the costs of this summons and the proceedings on a trustee basis.

• 8. Such further or other order or orders as this Honourable Court shall think fit.

5 The terms of Section 307 are very similar to Order 27, Rule 3 of the Rules of the Supreme Court, ("The Supreme Court Practice 1995") which is in the following terms: -

"Where admissions of fact or of part of a case are made by a party to a cause or matter either by his pleadings or otherwise, any other party to the cause or matter may apply to the Court for such judgement or order as upon those admissions he may be entiltled to, without waiting for the determination of any other question between the parties and the Court may give such judgement, or make such order, on the application as it thinks just".

6 The Second Defendant, on the other hand, has filed a summons seeking leave to amend his defence. The Defendant applies to the Court for the following

• 1. For an order that the Second Defendant be granted leave to amend his Defence and Counterclaim dated the 14 ^th March 2002, in accordance with the draft Defence and Counterclaim filed herein and in accordance with the prior stated intention of the Second Defendant in his affidavits dated the 19 ^th day of June 2002 and the 18 ^th day of September 2002 to apply for the said amendments, for purposes of incorporating the said amendments at the hearing of this matter.

• 2. For an order to make such further amendments as are rendered necessary.

• 3. Such further or other orders as this Honourable Court shall deem fit.

7 I would wish, firstly, at the outset, to apologize to counsel on all sides for having taken this long to deliver this judgment. I had hoped to deliver this within a few weeks of the end of submissions but I was overtaken by events. Secondly, I wish to compliment counsel for the obvious industry which they demonstrated in the prosecution of the claims of their respective clients. I state that at the outset because I would not wish that any apparent failure to analyze (in the course of this written judgment), each and every of the several dozen authorities cited to me, to be construed as indicating any disrespect of their industry, or lack of appreciation for the efforts: Finally, it should be noted that the applications were heard together and the submissions often overlapped as indeed is to be expected in light of the law on the issues being canvassed, resiling from admissions and amendment of pleadings which may lead thereto.

8 Having said that, I believe that it is important to try to reduce the issues in the instant claims to their simplest terms in order to deal with them, as the CPR 2002 says, justly. Indeed, after the disposal of the preliminary points on the objection raised by the Second Defendant's attorney to the plaintiff's application, it was agreed that in substance what was before me were:

• a) The Plaintiff's application for judgment on the admissions;

• b) The Second Defendant's application to amend his defence; and

• c) The First Defendant's application to be granted leave to file his defence out of time.

9 The issues which I must decide therefore, consistent with the summonses and the manner in which I have articulated them above, are as follows:

• a) Are there admissions which have been made by the Second Defendant, which are clear and which in law entitle the plaintiff to a judgment in her favour?

• b) Ought the Second Defendant to be allowed to amend his defence, even if the effect of that amendment is the withdrawal of admissions previously made by him?

• c) Should the court grant the First Defendant leave to defend?

10 Insofar as the third question is concerned, the matter was disposed of fairly quickly and was not the subject of any contention, at the hearing on November 7, with permission being given to the first defendant to file his defence out of time and costs being awarded to the plaintiff.

11 Let me also indicate, as a preliminary matter, that insofar as the Plaintiff's prayer in paragraph 4 of the summons is concerned, (to strike out the counterclaim as disclosing no cause of action and the defence as disclosing no defence in law), the law is quite clear that where such an application is made, no evidence may be adduced in support of the application. It must be patent on the face of the pleading that it has no chance of success. It will be immediately apparent that in light of the voluminous submissions made by Plaintiffs counsel on this particular aspect of the Second Defendant's defence, its import and its implications, that this prayer must fail. Indeed, I must point out that a considerable part of Plaintiff counsel's submissions involved a detailed examination of the affidavit evidence so far available and seeking to draw conclusions from the analysis of that evidence. I have to say, with respect, that it is not the function of the court in interlocutory proceedings, to make findings of fact upon the untested affidavit evidence before it That is a matter for a...