Garnett Dennis v Newton Barnes

• Jurisdiction: Jamaica
• Judge: Fraser JA
• Judgment Date: 16 July 2021
• Neutral Citation: [2021] JMCA App 21
• Docket Number: SUPREME COURT CIVIL APPEAL NO COA2021CV00042
• Court: Court of Appeal (Jamaica)

IN THE COURT OF APPEAL

SUPREME COURT CIVIL APPEAL NO COA2021CV00042

APPLICATION NO COA2021APP00090

Between

Garnett Dennis

Applicant

and

Newton Barnes

1 ^st Respondent

Sonia Barnes

2 ^nd Respondent

Joseph Jarrett instructed by Joseph Jarrett & Co for the applicant

Mrs Camille R Wignall-Davis instructed by Nunes Scholefield Deleon & Co for the respondents

IN CHAMBERS

Fraser JA

Introduction

1 This is an application for a stay of execution of the judgment of Pettigrew-Collins J, the learned trial judge (‘LTJ’) in the matter of Garnett Dennis v Newton Barnes and Sonia Barnes [2021] JMSC Civ 89, and that there be no order for security for costs.

2 The application initially sought a “stay of proceedings” but was amended at the hearing to read “stay of execution of the judgment”. The stay is sought pending the outcome of the appeal. The application also requested an order that costs be awarded to the applicant to be agreed or taxed. On 29 June 2021, a single judge of appeal granted an “interim stay of execution of proceedings, until the inter partes hearing of the application on 13 July 2021”.

3 The terms of the judgment being appealed against are as follows:

“a. A declaration that the [respondents] are legally and beneficially entitled to possession of the parcels of land registered at Volume 953 Folio 595 and Volume 868 Folio 76 of the Register Book of Titles as well as the unregistered parcel of land consisting of 0.220 acres or 0.089 hectares which is situated between the two registered parcels.

b. An injunction restraining the [applicant] whether by himself, his servants and/or agents or otherwise howsoever from remaining on or continuing occupation of the said lands.

c. An injunction restraining the [applicant] whether by himself, his servants and/or agents or otherwise howsoever from entering or using the said lands.

d. Nominal damages awarded in the sum of $5,000.00.

e. Costs to the [respondents] to be taxed if not agreed.”

The relevant law

4 Before proceeding to address the relevant law, it is important to point out that, in September 2015, amendments were made to the Court of Appeal Rules (‘the CAR’), which included the deletion of rule 2.8, as it then existed, due to its inconsistency with sections 256 and 258 of the Judicature (Parish Court) Act. The numbering of the subsequent rules was impacted by that change, resulting in rules 2.9 through to 2.20 being amended to become rules 2.8 through to 2.19, respectively. Counsel in their submissions referred to the rules as they were prior to the 2015 amendments. As the current application was filed this year, the 2015 amendments to the CAR apply. The references to the CAR in this judgment are therefore to the rules as they currently stand, following the 2015 amendment.

5 An appeal does not operate as a stay of execution or proceedings (see rule 2.13(a) of the CAR. That position is in keeping with the well settled principle “that there must be a good reason for depriving a claimant of the fruits of his judgment” (see Winchester Cigarette Machinery Ltd v Payne and Another (No 2) Times Law Reports, 5 December 1993). However, pursuant to rule 2.10(1)(b) of the CAR, a single judge of the court has the power to grant a stay of execution. This was confirmed by Phillips JA in the case of Joycelin Bailey v Durval Bailey [2016] JMCA App 8 at paragraph [39].

6 The principles to which a court should have regard in determining whether to grant a stay of execution are themselves now well established. In seeking to achieve a fair and just result, the first consideration is whether there is merit in the appeal. If there is no merit in the appeal no further investigation is necessary, the stay should be refused (see Combi (Singapore) Pte Ltd v Siriam and another [1997] EWCA 2162 and James Wyllie & Others v David West & Others [2012] JMCA App 41). The logic of that approach is self-evident, as it would not be fair or just to deny a respondent the fruits of his judgment, where the applicant has no real prospect of success on appeal.

7 If, however, the court determines that there is merit in the appeal, the court should then embark on a balancing exercise to determine, as a matter of discretion, which approach adopted will carry a greater risk of injustice, or on the other hand, would be less likely to result in injustice (see United General Insurance Company Limited v Marilyn Hamilton [2018] JMCA App 5; Caribbean Cement Company Limited v Freight Management Ltd [2013] JMCA App 29; and Effie Mignott v Nehemiah Rose & Yvette Rose [2019] JMCA App 19).

8 The balancing exercise is particularly critical where there is a risk of harm to one party or another, whichever order is made. In such circumstance, the balancing of alternatives by the court is aimed at deciding which of them is less likely to produce injustice (see Phillips JA in Joycelin Bailey v Durval Bailey at paragraph [40] quoting Phillips LJ in Combi (Singapore) Pte Ltd v Sriram and another. There is no longer any need to show as in Linotype-Hell Finance Limited v Baker [1992] 4 All ER 887 that, without a stay of execution the applicant would be ruined. In essence, all relevant factors having been considered, the court should make the order that “best accords with the interest of justice” (see Myrna Douglas & Jacqueline Brown v Easton Douglas [2017] JMCA App 5).

Does the appeal have a real prospect of success?

The claim below

9 The basis of the applicant's claim in the court below was, that, prior to the respondents' purchase of the parcels of land registered at Volume 953 Folio 595 and Volume 868 Folio 76 of the Register Book of Titles, as well as the unregistered parcel consisting of 0.220 acres or 0.089 hectares, situated between the two registered parcels, (together ‘the property’), he had acquired the property by adverse possession.

10 The LTJ however rejected the testimony of the claimant and his civilian witnesses, and stated at paragraph [107] of her judgment that:

“In light of my rejection of the claimant's evidence as to the duration and extent of his activities upon the disputed land, there is no reliable evidence from which this court can conclude that the necessary elements, that is the factual possession and the animus possessendi [sic] which would be necessary to establish that he has acquired the right to a possessory title existed for the necessary period. It is the responsibility of the person who claims that he has acquired the right to a possessory title to demonstrate that he has been in undisturbed and exclusive possession for the relevant limitation period. The claimant has not done so to the required standard.”

The submissions

Counsel for the applicant

11 Counsel for the applicant submitted that the LTJ erred in not accepting that the applicant had proved his case on a balance of probabilities. Counsel argued that the LTJ's explanation of the law governing adverse possession cannot be faulted, but she erred in failing to apply the law to the true facts, from the evidence presented to her. Counsel indicated that some of the LTJ's findings of fact reflect the extent to which she had prejudiced her mind to the evidence of the applicant and his witnesses. Counsel essentially took issue with all the LTJ's findings of fact and acceptance of evidence that were adverse to the applicant's case.

12 Counsel quoted and highlighted large portions of the witness statements of the applicant and his witnesses and postulated that they should have been accepted by the LTJ. In relation to the sale price of the property, counsel advanced that it was clear that the bargain price for which the land was sold, took into account the applicant's interest in the property of which the 1 ^st respondent as an experienced property developer must have been aware, when he agreed to purchase the property for that price.

13 Counsel summarised his position by contending that the LTJ “ erred in failing to carefully examine the evidence presented to her showing that the Appellant Mr. Garnett Dennis is entitled to the subject lands by way of adverse possession”. Counsel maintained that there was real merit in the appeal and the applicant would be faced with real financial hardship and ruin if the stay was not granted as, “[h]is entire livelihood is tied up in the subject lands including his homes” (see Linotype-Hell Finance Ltd v Baker).

14 In relation to the issue of security for costs, counsel pointed the court to rules 2.10(1)(a), and 2.11(3) of the CAR as well as the case of Speedways Jamaica Limited v Shell Company (WI) Ltd v Anor (unreported), Court of Appeal, Jamaica, Supreme Court Civil Appeal No 66/2001, judgment delivered 20 December 2004. Counsel advanced that the applicant was not impecunious and he had spent the majority of his case making improvements to the property since 2008 to the benefit of the respondents as well as himself. He contended that in the circumstances awarding security for costs would amount to a denial of justice to the applicant.

Counsel for the respondents

15 Counsel for the respondents submitted that the applicant's appeal has absolutely no merit or real prospect of success and hence there was no risk of injustice to the applicant if the stay was refused. Counsel noted that though the grounds of appeal were not set out concisely in keeping with rule 2.2(5) of the CAR, the main complaint of the applicant related to her findings of fact that he had failed to establish to the requisite standard, the elements of his claim of adverse possession. Counsel cited a number of authorities in which it has been emphasised that an appellate court will not lightly disturb the findings of fact of a trial court (see Effie Mignott v Nehemiah Rose & Yvette Rose [2019] JMCA App 19; Alan Deans v...