Leroy Powell and Another v Donald Brooks and Another

• Jurisdiction: Jamaica
• Judge: Morrison JA
• Judgment Date: 26 April 2013
• Neutral Citation: JM 2013 CA 49,[2013] JMCA App 7
• Docket Number: RESIDENT MAGISTRATES' CIVIL APPEAL NO 8/ 2012 APPLICATION NOS 234 AND 242/ 2012
• Court: Court of Appeal (Jamaica)
• Date: 26 April 2013

[2013] JMCA App 7

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Morrison JA

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

RESIDENT MAGISTRATES' CIVIL APPEAL NO 8/ 2012

APPLICATION NOS 234 AND 242/ 2012

Between

Leroy Powell Beverley Henry

Appellants

and

Donald Brooks Deta Brooks

Respondents

Mrs Jennifer Hobson-Hector for the appellants

Emile Leiba and Miss Gillian Pottinger instructed by DunnCox for the respondents

CIVIL PROCEDURE - Appeal - Notice of appeal - Application to strike out on ground that they had not been served - Application for extension of time to serve notice and grounds of appeal for relief from sanctions - Whether appeal properly before the court

Morrison JA

1 In this matter, the court was concerned with two applications: application no 234/2012, which was the respondents' application to strike out the notice of appeal filed on behalf of the appellants on 24 March 2011, on the ground that they had not been served with it; and application no 242/2012, which was the appellants' application for an extension of time within which to serve notice and grounds of appeal and for relief from sanctions.

2 On 27 February 2013, the court made an order (a) granting application no 234/2012, with costs of $15,000.00 to the respondents and (b) dismissing application no 242/2012. These are the promised reasons for the court's decision on both applications.

3 It is first necessary to state something of the background to these applications. On 1 December 2009, the respondents and the appellants entered into a lease agreement, by which the respondents agreed to rent premises situated at 26 Hobbs Avenue, Montego Bay, in the parish of St James to the appellants. The premises were used as a guest house and the term of the lease was for a period of five years, at an agreed rental of US$18,000.00 per month. The appellants as lessees covenanted to pay the rent reserved “without deductions or set off whatsoever” (clause 2(a)). The agreement also obliged the respondents to pay insurance and utility costs in respect of the leased premises.

4 In March 2010, the respondents gave the appellants notice to quit the premises on 31 March 2010, as a result of alleged non-payment of rent and, on 21 May 2010, plaint no 861/2010 was lodged in the Resident Magistrate's Court for the parish of St James, claiming recovery of possession of premises 26 Hobbs Avenue, Montego Bay. On 29 June 2010, the respondents purported to lock the appellants out of the leased premises and on the following day, 30 June 2010, the appellants filed notice of their counterclaim in plaint no 861/2010, claiming damages against the respondents in the sum of $250,000.00 for trespass to the leased premises. On 5 July 2010, the matter came on before a learned Resident Magistrate for the parish of St James, who granted an injunction restraining the respondents from preventing the appellants' access to the leased premises. (Plaint no 861/2010 was in due course withdrawn by the respondents on 2 October 2010, with costs of $4,500.00 to the appellants.)

5 On 1 October 2010, the respondents served notice to quit afresh on the appellants, requiring them to quit the leased premises “on or before the 1 ^st October 2010 or in the alternative at the end of the next completed month of your tenancy after service on you”. The reason for the service of the notice was stated to be “by virtue of your previous and continuing breaches of the terms of the lease agreement, including but not limited to failure to pay rent lawfully due and owing to the Landlords in excess of thirty (30) days after becoming due”.

6 The appellants having remained in possession, on 18 November 2010 plaint no 2041/2010 for recovery of possession was lodged on behalf of the respondents in the Resident Magistrate's Court for St James, claiming recovery of possession of premises 26 Hobbs Avenue, Montego Bay. On 1 February 2011, the day fixed for trial of the claim in plaint no 2041/2010, Her Honour Mrs Natalie Hart-Hines, a Resident Magistrate for the parish of St James, made an order consolidating that claim with the outstanding counterclaim in plaint no 861/2010 and the trial duly commenced before her. The appellants' stated defence to the claim for recovery of possession was a denial that they were in arrears of rent and an allegation that the respondents owed them rental for the penthouse, which they had ‘wrongly occupied’. By way of defence to the counterclaim in plaint no 861/2010, the respondents denied that the appellants had suffered any damage by reason of their having been locked out of the premises over the period 29 June to 5 July 2010.

7 The trial of the consolidated actions continued on 8, 10, 15 and 17 March 2011. The learned Resident Magistrate heard evidence from both of the appellants and the respondents, as well as Mr Trevor Reid, the first named respondent's brother. One of the major issues canvassed in the evidence was whether there had been an agreed variation of the lease agreement to allow the respondents to retain possession of a portion of the leased premises, referred to as ‘the penthouse’. The respondents contended that there was such a variation and that it had been agreed before the commencement of the lease, while the appellants insisted that, although such a variation had been discussed, it was never agreed.

8 At the conclusion of addresses from counsel on both sides on 17 March 2011, the learned Resident Magistrate gave judgment, with costs to be agreed or taxed in each case, (i) for the respondents on the claim in plaint no 2041/2010 and ordered the appellants to vacate the premises “forthwith”; and (ii) for the appellants on the counterclaim in plaint no 861/2010 and ordered that the respondents pay the sum of $150,000.00 as damages by reason of the appellants' exclusion from the premises between 29 June and 5 July 2010.

9 In detailed reasons for judgment dated 3 May 2012, the learned Resident Magistrate made a number of important findings of law and fact, as follows:

• 1. There was a variation of the lease agreement as regards possession of the penthouse, as the respondents contended.

• 2. With respect to this, the respondents were accepted as truthful, while the appellants' evidence was dismissed as untruthful.

• 3. The notice to quit dated 1 October 2010 was not vague or ambiguous and was therefore valid.

• 4. The date by which the appellants were required to vacate the premises was 1 November 2010.

• 5. It was accepted by all parties that rent for May and June 2010 was not paid and no justification had been provided by the appellants for the non-payment of rent for those months.

• 6. Receipt of a notice to quit does not cause the obligation of the tenant to pay rent to cease.

• 7. The appellants were excluded from the premises from 29 June until 5 July 2010. The appellants had ceased to reside at the premises "since at least September 2010" and, in the light of the evidence, "it does not seem that [they] have any intention to return to the property".

• 8 The respondents were entitled to recover possession of the premises pursuant to section 25(1) of the Rent Restriction Act.

• 9. The appellants were entitled to recover $150,000.00 as damages by reason of their exclusion from the premises between 29 June and 5 July 2010.

9 Dissatisfied with this outcome, on 24 March 2011 the appellants filed notice of appeal against the decision of the Resident Magistrate. The single ground of appeal was that “the Judgement of the Learned Resident Magistrate is inconsistent with the evidence adduced”.

10 The appeal was in due course set for hearing in the week of 12 November 2012. By letter dated 28 September 2012 (copied to the appellants' attorney-at-law), the respondents' attorneys-at-law, who had also acted for the respondents at the trial, advised the Registrar that neither they nor the respondents had been served with the notice of appeal in the matter. The respondents accordingly took the position that the appeal was not properly before the court.

11 On 12 November 2012, the appellants filed an application for court orders, in which they sought an extension of time in which to file skeleton arguments and relief from sanctions under the Civil Procedure Rules 2002 (“CPR”). That application was supported by an affidavit, also sworn to on 12 November 2012, by the appellants' attorney-at-law, Mrs Jennifer Hobson-Hector. The affidavit spoke to the difficulties encountered by Mrs Hobson-Hector in obtaining, first, the reasons for judgment from the court below and, second, instructions from the appellants for the purpose of completing skeleton arguments.

12 On 13 November 2012, the respondents formalised the objection taken in their letter of 28 September 2012 by filing application no 234/2012, by which they sought an order striking out the notice of appeal filed on 24 March 2011, with costs. In an affidavit sworn to on 13 November 2012 in support of the application, Miss Sabrina Cross, attorney-at-law, confirmed that the respondents had not been served with the notice of appeal. She stated that they only became aware of the appeal upon receipt of notice of hearing of the appeal dated...