John Sarju v Michael Anthony Sarju
| Jurisdiction | Jamaica |
| Judge | Dale Staple J |
| Judgment Date | 20 July 2022 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. SU2021CV04709 |
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[2022] JMSC Civ 126
CLAIM NO. SU2021CV04709
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
Civil Procedure — Application to Strike out Case — Application Made in Claim Started by Fixed Date Claim Form — Whether or Not Permissible.
Land Law — Adverse Possession — Whether or not Claimant as Licensee can establish adverse possession — Whether granting of license by one joint tenant binds all joint tenants — Whether license created was revoked by death of one joint tenant — Whether Claimant's pleadings disclose no reasonable grounds for bringing the Claim.
Mr. Brian Forsythe and Claudia Forysthe Attorney-at-Law, instructed by Forsythe & Forsythe for the Claimant/Respondent
Mr. Stuart Stimpson Attorney-at-Law instructed by Hart, Muirhead Fatta for the 1 st–3 rd Defendants/Applicants
Mr. Neco Pagon, Attorney-at-Law for the 4 th Defendant.
Dale Staple J (AG)
To paraphrase a local Jamaican saying, is this a case of rooster mouth killing rooster? Or does the Claimant have a case worthy of going to trial for determination?
The 1 st to 3 rd Defendants (for the purpose of this ruling referred to hereafter as “the Defendants”) have filed an application to strike out the Fixed Date Claim Form filed by the Claimant. It is significant that they have not filed an application for summary judgment as the rules prohibit the granting of summary judgment in cases commenced by Fixed Date Claim Form 1.
The basis of the 1 st – 3 rd Defendants' application is that:
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(a) The Claim is an abuse of process (for various reasons);
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(b) The statement of claim discloses no reasonable grounds for bringing the claim.
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(c) The Court can strike out a statement of claim (regardless of method of commencement) pursuant to its powers under CPR Rule 26.1
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(d) It would further the overriding objective.
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(e) Non-compliance with rule 8.9 of the Civil Procedure rules.
The essence of the Defendants' position is that the Claimant, when he had filed the claim, failed to disclose that he had admitted, in his application to the Registrar of Titles when lodging the caveat to the title, that he was put into occupation of the premises by his brother the now deceased Arthur Sarju, one of four joint tenants
along with the 1 st three Defendants/Applicants. As such, he is a licensee and by virtue of that, cannot claim adverse possessionRealising his dilemma, the Claimant/Respondent filed an affidavit in response where at paragraph 4 he said as follows:
“The assertions made out in paragraph numbered 26 is denied, and I assert that I was only ever granted permission to occupy the premise [sic] by the said Arthur Sarju, who died on the 30 th March 1988, and I have been [sic] possession adverse to the title [sic] owners since then.”
So he concedes he was given a license to occupy by Arthur Sarju, but said that it was only Arthur that had granted him the license and that when Arthur died, he was in possession adverse to the Defendants (who were joint tenants with Arthur at the time the license was given) as at the date of Arthur's death.
So the question now is, whether there are reasonable grounds for maintaining the claim against the Defendants. For certainly, on the face of the original claim, he may have had a leg to stand on to at least go to trial. But now that he has conceded that he was a licensee at the start of his occupation, does his argument give him reasonable grounds for maintaining the claim?
The Court's power to strike out a statement of case that discloses no reasonable ground for bringing an action are found under rule 26.3 (c). The Court may also strike out a case for failure to comply with a rule, order or practice direction in accordance with rule 26.3(a).
Now striking out is one of the most draconian actions a court may take in relation to the statement of case of a party to a claim. It should therefore be used sparingly and only in the most obvious of cases.
Borrowing from the dicta of my sister judge Jackson-Haisley J in the case of Lozane v Beckford, 2
“[30] … in S & T Distributors Limited and S & T Limited v. CIBC Jamaica Limited and Royal & Sun Alliance SCCA 112/04 delivered 31st July, 2007, in which Harris, J.A. stated at page 29:- “The striking out of a claim is a severe measure. The discretionary power to strike must be exercised with extreme caution. A court when considering an application to strike out, is obliged to take into consideration the probable implication of striking out and balance them carefully against the principles as prescribed by the particular cause of action which sought to be struck out. Judicial authorities have shown that the striking out of an action should only be done in plain and obvious cases.”
[31] Similarly, in the case of Drummond Jackson v British Medical Association and Others [1970] 1 WLR 688, Lord Pearson opined at page 695 that:- “Over a long period of years it has been firmly established by many authorities that the power to strike out a statement of claim as disclosing no reasonable cause of action is a summary power which should be exercised only in plain and obvious cases.” [ my emphasis]”
In deciding whether to strike out a statement of case on the basis that it discloses no reasonable ground for bringing a claim, the court must consider whether or not the Claimant has pleaded facts supportive of the cause of action he seeks to establish. So it is not enough for the Claimant to plead the cause of action, there must be a factual basis established on the face of the pleaded case to support the cause of action. There must be a factual basis for going to trial.
I agree with the authority submitted by the Defendants/Applicants of City Properties Limited v New Era Finance Limited 3 and the statement of the principle of Batts J at paragraphs 9–11 of the judgment.
As Batts J said, what is required is an examination of the statements of case to ensure that the facts as alleged support the cause of action the Claimant seeks to establish.
In the context of the Fixed Date Claim Form, the statements of case means the Affidavits in support of and in response to the Fixed Date Claim Form as well as any affidavits filed in support of or in response to the Application to strike out.
The Claimant is seeking certain declarations in his Fixed Date Claim Form. He asks the court for a declaration that he has an equitable interest ( emphasis mine) in the property at Volume 1059 Folio 56 of the Register Book of Titles and a declaration that the title of the Defendants was extinguished under the provisions of ss. 3 and 30 of the Limitations of Actions Act.
The Claimant would not receive an equitable interest if the Court finds that he has successfully established that the Defendants' title to the property has been extinguished by his occupation adverse to their interest. He would be entitled to the legal title not just an equitable estate.
When the Claim began, the Claimant's affidavit stated that he entered into possession of the disputed property at Volume 1059 Folio 56 since 1986 and has since then been conducting his business in open, quiet, undisputed, continuous and undisturbed manner to the exclusion of all others. He further said that when
he entered into possession in 1986, he constructed a two room self-contained concrete house used as office units. This was also the position he took when he filed an Amended Affidavit in support on the 15 th December 2021However, what has been revealed is that, by his own affidavit evidence, the Claimant actually took possession of the property as a licensee. What is more, the construction of the building was done with the agreement of Arthur. This was the Claimant's own evidence. This is material as it goes to one of the grounds raised by the 1 st – 3 rd Defendants in their application to strike out – that the Claimant failed to identify or annex any document they consider necessary to their case contrary to rule 8.9(3). The Defendants' position is that the statutory declaration made to the Registrar of Titles in support of the Claimant's Application for Title...
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