Ilene Kelly and Errol Milford v Registrar of Titles

• Jurisdiction: Jamaica
• Judge: MORRISON JA , PHILLIPS JA , McINTOSH JA
• Judgment Date: 02 December 2011
• Neutral Citation: JM 2011 CA 118,[2011] JMCA Civ 42
• Docket Number: SUPREME COURT CIVIL APPEAL NO. 102/2005
• Court: Court of Appeal (Jamaica)
• Date: 02 December 2011

[2011] JMCA Civ 42

JAMAICA

IN THE COURT OF APPEAL

BEFORE:

THE HON MR JUSTICE MORRISON JA

THE HON MISS JUSTICE PHILLIPS JA

THE HON MRS JUSTICE McINTOSH JA (Ag)

SUPREME COURT CIVIL APPEAL NO. 102/2005

BETWEEN

ILENE KELLY AND ERROL MILFORD (EXECUTORS OF ESTATE OF EVELYN FRANCIS, DEC'D)

APPELLANTS

AND

THE REGISTRAR OF TITLES

RESPONDENT

Mrs Melrose Reid instructed by Norman Samuels for the appellants

Mrs Trudy-Ann Dixon-Frith and Harrington A. McDermott instructed by the Director of State Proceedings for the respondent

CIVIL PROCEDURE - Real property - Whether claim struck out was abuse of process of law - Civil Procedure Rules 2002, r. 1.1

MORRISON JA

1 I have read in draft the reasons for judgment of my sister Phillips JA and agree with her reasoning and conclusion. I have nothing further to add.

PHILLIPS JA

2 This appeal arises from the order of Brooks J made on 14 September 2005 striking out claim no. HCV 2308 of 2003 on the basis, inter alia, that it was an abuse of the process of the court. The claim related to property comprised in certificate of title registered at volume 1059 folio 245, of the Register Book of Titles (the property), the ownership of which has been the subject of much litigation.

3 On 22 June 2010, after hearing argument in the appeal, the court made the following orders:

‘1. Leave granted to file application for leave to appeal out of time.

2. Leave to appeal granted.

3. The hearing of the application for leave to appeal is treated as the hearing of the appeal itself.

4. Appeal dismissed, with costs to the respondent, to be agreed, if not sooner taxed.’

These are the long promised reasons for this decision, with apologies for the delay.

4 The appellants are the executors of the estate of Mrs Evelyn Francis, who is deceased (Mrs Francis). During her lifetime, Mrs Francis held the property in joint tenancy with her son, Fenton Downer (Mr Downer). On 25 August 1988, an instrument transferring all of Mr Downer's interest in the said property to Mrs Francis was registered on the certificate of title for the property and, on 13 April 1995, Mrs Francis entered into an agreement for sale of the property to purchasers, Percival and Polly Gager (the Gagers). Mrs Francis died on 23 July 1995.

5 Mr Downer lodged a caveat against any dealings with the property and on 7 October 1997 filed suit no. E 357 of 1997 against the respondent (the Registrar), seeking to have the interest in the land determined. In this action, Mr Downer alleged fraud, in that he claimed he had at no time transferred his interest in the property to his mother. In default of the Registrar's defence to this action, on 4 December 1997 Panton J (as he then was) made an order in favour of Mr Downer, cancelling the purported transfer to Mrs Francis and declaring Mr Downer to be the registered proprietor in fee simple of the property, Mrs Francis having by this time died.

6 The appellants and the Gagers filed suit no. E 299 of 1998 against Mr Downer, seeking, among other things, a determination of the rights of the Gagers, in the property as purchasers from Mrs Francis. This matter was heard in chambers by Courtenay Orr J on 29 June 1999, when a preliminary point of res judicata was raised on Mr Downer's behalf. However, no ruling was made on the merits of this objection at this time (the judge considering that, on both procedural and substantive grounds, the application was not then in order). The suit was subsequently discontinued by order of Reckord J made on 5 July 2000, on the application of the appellants and the Gagers, with no order as to costs.

7 By a summons dated 4 October 1999 and filed in suit no. E 357 of 1997, the appellants and the Gagers then sought leave to set aside Panton J's judgment in default, as well as to intervene and to defend the action. This application was heard by Beswick J on 31 July 2000, when it was dismissed, with costs to Mr Downer, on the bases, among others, that it was too late and that no merit had been disclosed. On 21 September 2000, the appellants and the Gagers sought leave to appeal Beswick J's order and on 31 May 2001 this application was heard and refused by K. Harrison J (as he then was), with costs to Mr Downer. The learned judge appears to have considered that there would be no purpose in setting aside a regularly obtained judgment in the absence of any evidence to meet Mr Downer's contention that he had not transferred his interest in the property to his mother. On 22 September 2003 (the appellants and the Gagers having in the interim filed a notice of appeal which was ineffective for want of leave), a motion for leave to appeal was heard and refused by this court.

8 It is against this background that, on 26 November 2003, the appellants, acting in their capacity as Mrs Francis” executors, next filed action (claim no. HCV - 2308 of 2003) against the Registrar, pursuant to and by virtue of sections 164 and 166 of the Registration of Titles Act (the Act), for the loss of the property. In the claim form, the appellants stated that Mr Downer had obtained the order from Panton J cancelling the purported transfer to Mrs Francis, by default and that in those circumstances the Registrar was the proper party to be sued by virtue of the said provisions of the Act. The Registrar having failed to file a defence to the claim, judgment was entered in default. The Registrar later filed an application for an order striking out the claim, on the basis that it constituted an abuse of the process of the court and/or it disclosed no reasonable cause of action; or, in the alternative, setting aside the default judgment and granting leave to file a defence. It is the success of the first limb of this application before Brooks J that has given rise to this appeal.

9 Due to the fact that three actions and a multiplicity of applications were filed, I have set out below, separately and for clarity, the said suits under different headings, with their respective applications and the affidavits filed therein.

SUIT NO. E 357 OF 1997

10 In this suit, as previously indicated, Mr Downer asked the court to order that transfer no. 474057 was null and void and should be cancelled. In an affidavit in support of the originating summons he testified that he and his mother responded to an advertisement in the late 1960s and decided to purchase together lot 262 in a housing development at Willowdene, Spanish Town in the parish of Saint Catherine. They signed an agreement to purchase the lot, contributed equally to the purchase price of £500.00, and the certificate of title registered at volume 1059 folio 245 of the Register Book of Titles was transferred into their joint names. Thereafter, he said, he initially constructed a board house and subsequently built a block and steel structure on the lot where he went to reside and was so residing when the matter went before Panton J.

11 Mr Downer deposed that at first the title for the said property remained in his possession, as his mother was returning to England where she resided. Later on, she requested it of him through her daughter on the pretext of wishing to have it for safekeeping. He complied and had not had sight of it since then, save and except with reference to the suit. He further testified that he heard that his mother wished to sell the property and he had indicated to her that she could not do so, as he was a joint owner. He also tried to purchase her interest. His mother, it seemed, wished to sell the property as she said that she could not ‘agree’ with his wife. As a consequence, he instructed lawyers to lodge a caveat on the title. He stated that he was later informed about the transfer of his interest, that he was supposed to have effected, to his mother, for the amount of J$10,000.00. He denied ever having done so. He said he would not have sold his interest for that paltry sum when the house erected on the said property, in the main by him, was worth hundreds of thousands of dollars. Additionally, he had lived on the property continuously and uninterruptedly since 1972 with his wife and family, and he would not therefore sign away his interest in the said property as he had no other place to live with his family. His mother, he said, had lived on the property, on occasion, with him and his family. He indicated that despite several searches at the Office of Titles, the transfer allegedly signed by him had not been produced and he had been told that it could not be located.

12 He attached to his affidavit the certificate of title for the said property with the transfer of his interest to his mother duly noted thereon. He also attached the certified copy of his mother's death certificate showing that she had died on 23 July 1995, which made him the sole owner of the said property, he said, as they had been joint owners. He maintained that as he had never signed away his interest, any purported transfer of the same would have been obtained by fraud, and the court should therefore make the orders prayed for in the originating summons filed on his behalf. Panton J duly made the orders as prayed.

SUIT NO. E 299 OF 1998

13 As indicated, the appellants and the Gagers filed suit no. E 299 of 1998 to obtain orders as to who was entitled to the said property, but very little documentation was placed before the court pertaining to that suit, perhaps because having filed suit in 1998, they had by 4 October 1999 filed a summons seeking the leave of the court to withdraw the same, which was granted on 5 July 2000. The contents of the affidavit filed by Mr Downer in this suit were similar to his affidavits filed in suit no. E 357 of 1997, thus no useful purpose would be served by repetition of their contents here. Suffice it to say that Mr Downer challenged the efficacy of the ‘Sales Agreement’ between his mother and the Gagers stating...