Glen Cobourne v Marlene Cobourne
| Jurisdiction | Jamaica |
| Judge | F Williams JA,Brooks JA,McDonald-Bishop JA |
| Judgment Date | 07 May 2021 |
| Neutral Citation | [2021] JMCA Civ 24 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 115/2018 |
| Year | 2021 |
| Court | Court of Appeal (Jamaica) |
IN THE COURT OF APPEAL
THE HON Mr Justice Brooks JA
THE HON Mrs Justice McDonald-Bishop JA
THE HON Mr Justice F Williams JA
SUPREME COURT CIVIL APPEAL NO 115/2018
Lord Anthony Gifford QC, Mrs Emily Shields and Miss Marissa Wright instructed by Gifford, Thompson & Shields for the appellant
Respondent not appearing or represented
I have read, in draft, the judgment of my learned sister, McDonald-Bishop JA. I agree with her reasoning and conclusion and have nothing to add.
This appeal challenges the decision of a judge of the Supreme Court (‘the learned judge’), made on 22 October 2018, on an application brought by Mr Glen Cobourne (‘the appellant’), for default judgment to be entered on a claim he brought against his former spouse, Mrs Marlene Cobourne (‘the respondent’). The appellant sought orders regarding the ownership of residential property situated at Oaklands in the parish of Saint Andrew and registered at Volume 1288 Folio 432 of the Register Book of Titles (‘the property’).
The order of the learned judge that is the subject of this appeal is:
“1. Judgment on this claim is entered in favour of the [respondent]; …”
Two central questions have emerged for examination from the grounds of appeal filed. The first question is whether the learned judge employed the proper procedure as stipulated by Part 12 of the Civil Procedure Rules, 2002 (‘the CPR’) for the grant of default judgment on the claim in question. The second is whether he correctly applied the substantive law regarding the acquisition of title to property by one registered co-owner from another co-owner by operation of the statute of limitations.
The appellant contends that in denying the application for default judgment and entering judgment for the respondent, the learned judge erred in procedural and substantive law.
There was no response from the respondent to the appeal. However, there was evidence before the court, which served to establish that she had notice of the hearing of the appeal.
The background to the appeal will now be briefly outlined.
The facts that gave rise to the claim in the Supreme Court are extracted from the amended particulars of claim (‘the particulars of claim’) that were filed on 6 October 2016 (pages 43–64 of the record of appeal). The most pertinent facts, for present purposes, are as follows.
The appellant and respondent were husband and wife. They got married in Jamaica in 1999. A few months later, in 2000, they bought the property, which was transferred to them as tenants in common. The parties purchased the property with the aid of a mortgage from the National Housing Trust (‘the Trust’) by using the respondent's and her brother's contributions to the Trust. The appellant contributed cash towards the purchase, which represented roughly two-thirds of the purchase price. Later, the respondent contributed $100,000.00 towards repairing the roof. They lived together at the property until 13 June 2000, shortly after which, at different times, they migrated to the United States of America (‘USA’).
On 13 June 2001, the respondent executed an irrevocable power of attorney, primarily granting the appellant the power to sell the property. The appellant was empowered to, among other things, pay rates and taxes on her behalf and to pay and recover all sums, which might be due and owing to her. On the same date, the respondent also executed a document entitled, “Authority of Marlene Cobourne” (“the written authority”), in which she directed that the sum of $100,000.00 plus interest be paid to her as the “sum representing the value of her entire interest in the property”.
In September 2001, the respondent moved from the home the parties shared in the United States of America (USA) and never returned. On 17 August 2006, a final decree of dissolution of the marriage was handed down by the Superior Court of Gwinnett County in the State of Georgia in the USA. The appellant had not seen the respondent since September 2001, when she left the matrimonial home.
On 8 January 2016, the respondent lodged a caveat at the Office of Titles (‘titles office’) against any dealing with the property. In support of the caveat, she submitted a declaration to the Registrar of Titles in which she indicated her intention to revoke the power of attorney on the basis that, among other things, she was young and inexperienced when she granted it to the appellant.
Consequent to the lodging of the caveat, the appellant commenced his claim in the Supreme Court by claim form filed on 20 September 2016 and amended on 6 October 2016 (pages 32 —42 of the record of appeal).
The core of the appellant's case, as disclosed in the particulars of claim, is that he is the sole proprietor of the property as he had acquired the respondent's interest by way of adverse possession in accordance with the provisions of the Limitation of Actions Act, which, interchangeably, will be referred to as the statute of limitations. He grounded his claim on three bases of mixed fact and law: (i) he has been dealing with the property as a sole proprietor since 2002 and has dispossessed the respondent; (iii) the respondent had discontinued possession; and (iii) the respondent's title to the property has been extinguished by operation of the statute of limitations.
Upon filing the claim, the appellant sought leave to serve the respondent with the claim form and particulars of claim outside the jurisdiction. Leave was granted and the appellant effected service in keeping with the order of the court. The respondent failed to file an acknowledgement of service or a defence to the claim within the time limited for her to do so by the CPR. As a result, on 11 April 2018, the appellant filed a without notice application for court orders, by which he sought the following orders, in so far as is relevant to the appeal:
“1. Judgment be entered against the [respondent] in default of an acknowledgment [of] service and/or defence in terms pleaded in the Amended Claim Form filed on the 6 th day of October 2016:
l. A Declaration that the [appellant] is the sole proprietor of the property known as Lot 55, part of Oaklands in the parish of Saint Andrew and registered at Volume 1258 Folio 432 in the Register Book of Titles;
ll. An order that caveat No. 1980761 which was lodged on the title to the said property at the instance of the [respondent] on 6 th January 2016, be removed; and
lll. An Order that the Registrar of Titles do rectify the said title by entering the name Glen Cobourne as the sole proprietor of the said property…”
The learned judge was satisfied that the claim form with the particulars of claim was served on the respondent. He proceeded to identify the question to be determined by him in these terms at paragraph [13]:
“… The question to be determined, therefore, is whether or not the [appellant] may obtain judgment for a declaration to be granted that he has become the sole owner of the Oaklands property by virtue of the [respondent's] alleged absence from the property…”
Considering that question he had identified, the learned judge proceeded to consider sections 3, 14, and 30 of the Limitations of Actions Act in conjunction with the relevant principles of law enunciated in several cases. He, mainly, had regard to dicta from such cases as Powell v McFarlane (1977) 38 P & CR 452; JA Pye (Oxford) Ltd and Another v Graham and Another [2002] 3 All ER 865; Wills v Wills [2003] UKPC 84; Winnifred Fullwood v Paulette Curchar [2015] JMCA Civ 37; and Tanya Ewers (Executrix of the estate of Mavis Williams) v Melrose Barton — Thelwell [2017] JMCA Civ 26.
Having applied the applicable law to the facts he considered material to the question he had to determine, the learned judge made these critical findings of fact (as summarised):
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i. The uncontradicted averment that since 2002, the appellant had directed that all rental income from the property be paid into an account in his sole name demonstrates that he intended to make it public that he was the person whom the tenants were to regard as the sole owner of the property. There was no evidence that this intention had changed. The appellant had shown the requisite intent to possess the property for his use and benefit to the exclusion of the respondent.
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ii. The appellant's act of directing that all rental income from the property be paid directly to him was not a sufficient act on his part that would constitute factual possession of the property by him. This act was insufficient to extinguish the respondent's title, especially having regard to the power of attorney that the respondent executed in 2001.
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iii. The appellant had adduced no evidence that the respondent revoked the power of attorney and that he could properly and legally direct the tenants of the property to pay the rent solely to him.
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iv. The respondent's statutory declaration to the Registrar of Titles in support of the caveat was the only document that suggested that the respondent desired to revoke the power of attorney. That declaration, “taken at its highest”, would only demonstrate that the respondent had given authority to the appellant to act as her agent while not yielding up her interest in the property. The statutory declaration was evidence that the respondent had not given up her interest.
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v. The appellant failed to rebut the presumption that the respondent retains possession of the property.
The appellant, being aggrieved by these findings, launched his appeal on 12 grounds, lettered (a) to (l). During the hearing before this court, four grounds, (e), (g), (h) and (i), were abandoned. The eight grounds that...
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