Green (Vincent) v Attorney General, National Works Agency, Commissioner of Lands Neville Rattray and Michael Douse

• Jurisdiction: Jamaica
• Court: Supreme Court (Jamaica)
• Judge: Straw J
• Judgment Date: 27 November 2006
• Judgment citation (vLex): [2006] 11 JJC 2701
• Docket Number: CLAIM NO. HCV 2156/2005
• Date: 27 November 2006

BETWEEN

VINCENT GREEN

CLAIMANT

AND

THE ATTORNEY GENERAL

1 ^ST DEFENDANT

AND

NATIONAL WORKS AGENCY

2 ^ND DEFENDANT

AND

THE COMMISSIONER OF LANDS

3 ^RD DEFENDANT

AND

NEVILLE RATTRAY

4 ^TH DEFENDANT

AND

MICHAEL DOUSE

5 ^TH DEFENDANT

CLAIM NO. HCV 2156/2005

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL PROCEDURE - Judgment - Leave to enter

CIVIL PROCEDURE - Defence - Filing of - Application for extension of time

^{st nd rd}

Straw J

1 APPLICATION TO EXTEND TIME TO FILE DEFENCE; APPLICATION FOR LEAVE TO ENTER JUDGMENT; APPLICATION TO SET ASIDE

2 Mr. Vincent Green, the claimant injured himself while working along a portion of the Warsop Road in Trelawny. He was severely injured when the existing road collapsed on him whilst he was working on the site. The road improvement was a project of the National Works Agency, the 2 ^nd defendant. The road is part of lands vested in the Commissioner of Lands, the 3 ^rd defendant on behalf of the Government.

3 A Claim Form and Particulars of Claim dated and filed on July 28, 2005 were served on the 1 ^st , 2 ^nd and 3 ^rd defendants on August 17, 2005. The Director of State Proceedings acknowledged service on behalf of the 1 ^st , 2 ^nd and 3 ^rd defendants by way of an Acknowledgement of Service filed in August 30, 2005. Since that date no defence has been filed.

4 Correspondence passed between both parties in August 2005 to February 2006 concerning the filing of a Defence. A request for information on behalf of the 3 ^rd defendant was also filed.

5 On February 27, 2006, the claimant made an application to the court for leave to enter judgement against the 1 ^st and 2 ^nd defendants.

6 Request was also made for judgment to be entered against the 3 ^rd defendant. This was entered on September 28, 2006.

7 On March 21, 2006, the 1 ^st defendant filed a Not ice of Application for permission to file their Defence within 14 days of the application being heard.

8 On September 28, 2006, a second Notice of Application was filed by the 1 ^st defendant on behalf of the 3 ^rd defendant that the Default Judgment entered by the claimant against the 3 ^rd defendant be set aside and secondly that the 3 ^rd defendant be removed as a Defendant to the Claim.

9 All three applications are now before the court for consideration.

10 In the interest of expediency, I will deal firstly with the Application to set aside Default Judgment against the 3 ^rd defendant and to remove the 3 ^rd defendant as a party to the action.

11 Submission by Counsel on behalf of the third defendant

12 Mr. Stimpson, on behalf of the 3 ^rd defendant, has sought to argue that the Default Judgment should be set aside as the defendant has a real prospect of success (per Rule 13.3(1) of the Civil Procedure Rules ( CPR) 2002.

13 He submits that the Commissioner of Lands is not a party to be sued by virtue of Sections 3(1) and 4 (2) of the Crown Property (Vesting) Act, 1960 and Section 3(1) (c) and Section 13 of the Crown Proceedings Act.

14 Section 3 (1) and 2 of the Crown Property (Vesting) Act, 1960 states as follows:

3

• (1) "The Governor General may from time to time appoint a fit and proper person to be Commissioner of Lands.

• (2) The Commissioner for the time being shall be a corporation sole by the name of the Commissioner of Lands and shall have power to acquire, hold and dispose of land and other property of whatever kind."

15 Section 4 (1) of the Crown Property (Vesting) Act states that all lands acquired on or after the commencement of this Act for the use of the Government are to be vested in the Commissioner and held by him and his successors in the said office in trust for her Majesty, her heirs and successors.

16 Mr. Stimpson argues that the Commissioner of Lands holds land for the benefit of the Government and he is therefore an officer of the Crown and although he is described as a corporation sole, he is not empowered to sue or to be sued; that he is therefore entitled to the protection of the Crown Proceedings Act.

17 Section 3 (1) (c) of said Act reads as follows:

3 (1) "Subject to the provisions of this Act, the Crown shall be subject to all these liabilities in tort to which if it were a private person of full age and capacity, it would be subject:

• a. in respect of torts committed by its servants or agents,

• b. in respect of any breach of these duties which a person owes to his servants or agents at common-law by reason of being their employer; and

• c. in respect of any breach of the duties attaching at common-law to the ownership, occupation, possession or control of property.

18 Section 13 (2) of the said Act provides that civil proceedings against the Crown are to be instituted against the Attorney General.

19 Mr. Stimpson argues that the Commissioner of Lands is entitled to the protection of the said Act and ought not to be sued in his own capacity. He cited two authorities in support of his interpretation of the Commissioner as an officer of the Crown. These are L.C. McKenzie Construction Ltd v The Ministry of Housing and the Commissioner of Lands (unreported) E200/72, 13 ^th November 1972 and Linton Thomas v The Minister of Housing; Ivanhoe Jackson v The Minister of Housing (1948) JLR 240.

20 In the case of L.C. McKenzie Construction Ltd (supra), the plaintiff had applied for an injunction against the Minister of Housing and The Commissioner of Lands in circumstances where the Minister of Housing had made an order under Section 4 (1) of the Housing Act, 1968 declaring a particular piece of real estate to be a housing area. This action was a prelude to compulsory acquirement of the property.

21 The Commissioner of Lands, acting under the direction of the Minister of Agriculture had published a notice in the Jamaican Gazette to the effect that he had taken proceedings for the acquisition of the lands and on the directions of the Minister of Agriculture had taken possession on October 4, 1972 and that the said land now vested in the Ministry of Housing in trust for her Majesty.

22 The issue in the case was whether or not both defendants, the Commissioner of Lands and the Minister of Housing were entitled to the protection of the Crown Proceedings Law 1958, and in particular Section 17 (1) which provides that the court cannot grant an injunction in any court proceedings against an officer of the Crown if the effect of granting the injunction or making the order would be to give relief against the Crown which could not have been obtained...