Hubert Samuels v Pauline Karenga
| Jurisdiction | Jamaica |
| Judge | Phillips JA,Sinclair-Haynes JA,F Williams JA |
| Judgment Date | 17 May 2019 |
| Neutral Citation | JM 2019 CA 33 |
| Date | 17 May 2019 |
| Year | 2019 |
| Court | Court of Appeal (Jamaica) |
[2019] JMCA App 10
PARISH COURT CIVIL APPEAL NO 10/2018
APPLICATION NO 262/2018
The Hon Miss Justice Phillips JA
The Hon Mrs Justice Sinclair-Haynes JA
The Hon Mr Justice F Williams JA
Norman Godfrey instructed by Brown, Godfrey & Morgan for the applicant
Mrs Emily Shields instructed by Gifford, Thompson & Shields for the respondent
Civil practice and procedure - Appeal — Application for extension of time within which to file grounds of appeal — Procedure to initiate a civil appeal from the Parish Court — Delay — Consideration of reason for delay — Whether there was chance of success on appeal.
I have read in draft the reasons for judgment of my sister Sinclair-Haynes JA. I agree with her reasoning and conclusion. There is nothing I wish to add.
Mr Hubert Samuels (the applicant) had applied to this court by way of a notice of application for an extension of time within which to file grounds of appeal against the decision of the Senior Parish Court Judge for the parish of Manchester, Her Honour Ms. Desiree Alleyne, ordering him to quit and deliver up possession of property situated at Bloomfield District, in the parish of Manchester.
Mr Samuels, dissatisfied with the Senior Parish Court Judge's decision, on 24 January 2017, filed a Notice of Appeal and paid the requisite costs and security for the due prosecution of the appeal. He, however, failed to file the grounds of appeal within the time stipulated.
The appeal was listed to be heard during the week of 14 November 2018. On 14 November 2018, Mr Canute Brown held for Mr Godfrey on the applicant's behalf and sought permission to apply for an extension of time within which to file the grounds of appeal. We acceded to his request, adjourned the matter to 3 December, 2018 and made the following case management orders:
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“1. Preliminary objection to be heard on 3 December 2018;
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2. Applicant to file and serve application seeking permission to file grounds of appeal by 21 November 2018; and
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3. Respondent to respond by 26 November 2018.
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4. Costs of today to the respondent in the amount of $15,000.00.”
On 3 December 2018, counsel for the respondent, Mrs Emily Shields, objected to Mr Samuels' application for an extension of time within which to file the grounds of appeal. She submitted that the application was filed in breach of the order of this court. Consequently, Mr Godfrey verbally applied for the application filed on 27 November 2018 to stand.
Mr Godfrey explained to the court that counsel who had held for him on 14 November 2018, had mistakenly advised him that the application was to be filed by 26 November 2018. Accordingly, he believed he was only one day out of the time stipulated.
Notwithstanding the applicant's failure to file and serve the application within the time specified, we allowed his application filed on 27 November 2018 to stand as being properly filed.
The following proposed grounds of appeal were exhibited to Mr Samuels’
application for extension of time within which to file grounds of appeal:
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“1. The Learned Parish Judge erred in law when she found that the plaintiff/respondent had standing in law to initiate and maintain the action for recovery of possession, she claiming through the unadministered assets of the estate of the deceased.
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2. The Learned Parish Judge erred in law when she admitted in evidence a document purporting to be a will, which had not been admitted to probate, as evidence of the truth of its contents that the respondent was named as a beneficiary and therefore is the owner of the legal or equitable estate in the land.
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3. The Learned Parish Judge failed to recognise that a beneficiary under a will or intestacy has no legal or equitable interest in the unadministered assets of the deceased's estate.
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4. The Learned Parish Judge gave judgement for the respondent/plaintiff on an action which she did not bring and which the appellant/defendant was not required to answer to.
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5. The Judgement is against the weight of the evidence which favours the appellant/defendant by any standard of proof, is unreasonable and unlawful.”
It was counsel's argument in support of the application that:
“(a) The grounds of appeal were not filed within the time allowed because of the inadvertence of counsel who had conduct of the matter.
(b) The provisions of section 266 of the Judicature (Parish Court) Act enable the court to admit the applicant to impeach the judgment appealed from.
(c) The appeal has a real prospect of success, because the respondent, who sued the applicant for recovery of possession of land, had no standing in law to maintain the action.
(d) The parish judge wrongly admitted into evidence a document purporting to be a Will, that had not been admitted to probate, as evidence of the truth of its contents, that the respondent was named as a beneficiary and therefore is the owner of the legal or equitable estate in the land.”
On 19 December 2018, we refused his application for an extension of time within which to file grounds of appeal and ordered the applicant to pay costs to the respondent to be agreed or taxed, which effectively directed him to quit and deliver up possession of the premises. We promised to provide our reasons and this is a fulfilment of that promise.
Mrs Pauline Karenga (the respondent) instituted proceedings against Mr Samuels for recovery of possession of premises situated at Bloomfield District, in the parish of Manchester. He was described in the plaint as a tenant-at-will whose tenancy had terminated on 26 February 2015 by way of a notice to quit which was served on 26 January 2015. The plaint note stated “Recovery of Possession” as the reason.
The action was instituted in Mrs Karenga's personal capacity. She sought at the trial to claim locus standi by virtue of being the sole beneficiary under her mother, Miss Ivy Morris' will, as well as being the person in possession of the property.
Miss Ivy Morris was the only child of the owner of the property, Mr Hubert Morris. In 2012, she obtained letters of administration for her father's estate. The property was however, not transferred.
It was Mrs Karenga's contention that, Miss Ivy Morris had, by her will, gifted the property to her, she being her only child. Of importance is that Miss Ivy Morris' will was not probated at the time Mrs Karenga instituted proceedings for recovery of possession.
At the commencement of the trial, counsel for the applicant, Mr Godfrey raised the following points in limine:
For those reasons, counsel submitted, the action was ill-conceived and could not be maintained.
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“1) There was no relationship of landlord and tenant between Mr Samuels and Mrs Karenga although the particulars of claim referred to him as a tenant-at-will.
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2) The respondent's claim of having a right to the property by virtue of her mother's will is unsustainable because the Executrices named in the will are alive.
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3) Mrs Karenga, as a beneficiary and not one of the Executrices, has only an equitable interest and therefore no locus standi to bring the action.
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4) The proper parties to bring this action would be the Executrices in the Estate of Ivy Morris and they could only have commenced the action if they obtained Probate of her Will.”
Miss West, counsel for Mrs Karenga during the trial, asserted that there was in existence a lease agreement between the persons on the property and Mrs Karenga. She however conceded that there was no relationship between Mrs Karenga and Mr Samuels. Counsel nevertheless contended that by virtue of the letters of administration granted to Miss Ivy Morris, the will naming Mrs Karenga as the sole beneficiary, and Mrs Karenga being a person in possession of the property, she was the proper person to bring the action.
Having heard the preliminary points raised, the learned Senior Parish Judge ruled that the matter should proceed to trial because she was unable to decide the matter solely on the preliminary points.
Mrs Karenga sought to prove her claim against Mr Samuels by providing evidence that she and her mother had continuously been in possession of the property since her grandfather's death in 1977. She testified that, her grandfather died without a will, but her mother obtained letters of administration for his estate in 2012. It was Mrs Karenga's evidence that her mother was the only child for her grandfather. Prior to her mother's death in 2013, Mrs Karenga was her agent by virtue of a power of attorney, however subsequent to her death, she became the beneficiary under her will, which was executed in her presence in 2012.
After the execution of the will, she visited the property later in 2012 and noticed several squatters. She consequently gave them notices to quit and deliver up the possession, in 2013. Her evidence is hereunder stated:
“I paid property tax after my mother died. I visited the property real often from Kingston. I knew Mr Knight was there. In 2013 I spoke to Delano Knight. The son of Mr. Leroy Knight who is alive. I saw Hubert Samuels on the property. I know Hubert Samuels and Delano Knight came on property in 2011 also Ucal Sinclair. They are all still on the property. I gave Delano Knight a lease which was formalized. He did not come on the property with permission by me. Delano Knight is here in court. Delano Knight's girlfriend Priscilla Reid is here in court today. I see Mr Samuels here in court today. (Mr. Samuels identified). I wanted to survey the property to know the property. He stopped my surveyor. This was 2014/2015. It was April I remember. I was there when Mr Samuels refused to sign the document. (Objection to survey marked ‘A’ for...
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