Lyndel Laing and Another v Lucille Rodney and Another
| Jurisdiction | Jamaica |
| Judge | Harris JA |
| Judgment Date | 15 July 2013 |
| Neutral Citation | [2013] JMCA Civ 27 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 137/2012 |
| Court | Court of Appeal (Jamaica) |
| Date | 15 July 2013 |
and
and
[2013] JMCA Civ 27
The Hon Mrs Justice Harris JA
The Hon Mr Justice Morrison JA
The Hon Mr Justice Dukharan JA
SUPREME COURT CIVIL APPEAL NO 137/2012
JAMAICA
IN THE COURT OF APPEAL
CIVIL PROCEDURE - Judgment - Application to set aside order dismissing application to correct signed judgment - Civil Procedure Rules 2002, Rule 42.10
In this appeal, the appellants seek to set aside an order of Campbell J, in which he dismissed an application made by them to correct a judgment signed by him on 13 April 2012 and to stay execution of that judgment.
On 1 June 2011, the 1 st respondent, entered into an agreement with the appellants for the lease of a property at Norman Manley Boulevard in the parish of Westmoreland. The appellants being in breach of the covenant to pay rent, a notice to quit was duly served on them. They failed to vacate the property.
On 14 February 2012, the respondents brought an action against the appellants claiming the recovery of possession of the property as well as a sum of US$22,000.00 due and owing for rent. On the same date, the respondents, by way of a notice of application for court orders, also sought the following orders:
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‘1. That the 1 st and 2 nd respondents [the 1 st and 2 nd defendants] be removed from the property registered at Volume 1035 and Folio 296 of the Register Book of Titles known as Sandi San [sic] Beach Hotel now operating as Relax Resorts.
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2. That the respondents pay to the Applicants the sum of twenty two thousand United States dollars being the sum due and owing for rent.
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3. Costs to be cost [sic] in the Claim.’
This application was supported by an affidavit of Mr Kenric Davis, the 2 nd respondent's property manager, sworn on 12 March 2012 and filed on 14 March 2012, in which he averred at paragraphs 7 to 18 as follows:
7. That on June 1, 2011 I entered into a rental agreement with the Respondents for the sum of Eight thousand United States dollars per month for six (6) months, the period of June 1, 2011 to December 31, 2011.
Attached hereto and marked as “Exhibit KD 1” is a true copy of the lease Agreement.
8. The clause 3, Sub-section B refers to the deposit: “the Tenant will deposit with the Landlord in trust the sum of Eight Thousand United States Dollars as a security for performance of the Tenant's Obligations.”
9. The Lease Agreement, Clause 5 subsection (g) states: “If the Tenant shall hold over after the expiration of the leased period with the landlord's consent but without a new contract in writing, then the tenant shall be deemed a monthly tenant whose monthly lease shall be in the amount of Twelve Thousand United States Dollars until a formal contract is provided by the Landlord.”
10. That on or about April 21, 2011 the Respondent paid a deposit of Six Hundred and Seventy Thousand, Four Hundred Dollars as the deposit on the lease.
11. That on or about May 10, 2011 the Respondent paid J$337,000.00 plus US$500.00.
12. That on July 18, 2011 the Respondent paid J$292,000.00 in cash.
16. On January 13, 2012 the Respondent paid US$8000.00
17. That the Respondents have failed to make rental payments as stipulated by the Lease Agreement.
18. That at the date of this my affidavit (March 12, 2012) the Respondent [sic] are owing the sum of Fifty Eight Thousand, Four Hundred and Forty (US$58,440.00) United States Dollars for rent.
Attached hereto and Marked as “Exhibit KD 2” is a true copy of my statement of account to [sic] dated March 12, 2012’.
On 5 March 2012, Lawrence Beswick J ordered that an agreed statement of account be filed, failing which, each party should file a statement of account within 14 days. An agreed statement of account was not filed but the respondents filed their statement of account. The application came on for hearing before Campbell J on 11 April 2012. On that date, the minute of order was endorsed ‘file not located CAV’. It appears that submissions were made by the parties on 11 April and the learned judge took time to consider the application. On 13 April 2012, he executed two orders, namely, a minute of order and a formal order. The terms, as reflected on the minute of order, are recorded thus:
‘Order in terms of paragraphs 1 and 2 as per amended notice of application for court orders dated the [sic] 14 February 2012.
Respondent granted 14 days from the date hereof to vacate the property.
Cost to [sic] application to be agreed or taxed.’
The formal order reads as follows:
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‘1. The 1 st and 2 nd Respondents be removed from the property registered at Volume 1035 and Folio 296 of the Register book of titles known as Sandi Sand Beach Hotel now operating as Relax Resorts;
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2. The Respondents are granted fourteen (14) days to vacate the premises from the date hereof;
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3. The Respondents pay to the Applicants the sum of fifty-six thousand eight hundred and forty united states dollars (US$56,840.00) being the sum owed; and
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4. Costs to the applicant [sic] to be agreed or taxed.’
By way of an application on 14 August 2012, the following orders were sought by the appellants:
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‘i) that the Formal Order herein be corrected so that it shows a sum of US$22,000.00 instead of US$56,840.00;
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ii) that the Court recall and/or correct the Order for Possession that incorrectly shows the sum of US[sic] 56,840.00 instead of US$22,000.00 and/or stay its further execution
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iii) that the Court order that the bailiff for the Resident Magistrate's Court, Westmoreland release to us our goods seized pursuant to the said order for possession.
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iv) that the time for serving this notice be abridged.’
This application came on for hearing before Campbell J on 30 August 2012 when it was dismissed by him.
Three grounds of appeal were filed. They are:
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‘1. The learned Judge erred in law [sic] deciding that his signing a judgment/order for a sum more than two and a half times greater than that referred to in the minute of order (which was signed by him) is not a slip or error within the contemplation of the slip rule as set out in rule 42 of the Civil Procedure Rules.
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2. The learned Judge erred in law in refusing to correct his manifest clerical mistake [sic] his judgment or order or error arising in his judgment or order from an accidental slip or omission.
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3. The learned Judge erred in law in refusing to stay the further execution of the judgment/order signed by him because it was erroneous in the first instance and, in any event, on the evidence before him the Applicants had already paid to the Claimants/Respondents sums that would have satisfied the judgment debt.’
It was Mr Adedipe's submission that there is a radical difference in the factual context in which the minute of order was made a formal order, and this would have occurred as a result of a clerical error or by an omission. The orders took effect on the same date and by the minute of order, he argued, the learned judge's pronouncement signing judgment for US$22,000.00 is clear and unambiguous but the pronouncement in the formal order for a greater sum is an error devoid of any explanation. The learned judge, he submitted, awarded no more than US$22,000.00 and when he signed judgment, he had done so in error. The power of the learned judge to invoke the slip rule as contemplated by rule 42.10 of the Civil Procedure Rules (CPR) is clear, he argued. He citedSmith v Harris [1939] 3 All ER 960 [1939] 3 All ER 960 in support of his submissions. The learned judge, he contended, made a pronouncement in the minute of order then administratively signed something different in the formal order. The formal order, he argued, when perfected should have stated the limit, but this escaped the intention of the judge when he signed it for perfection. He would not have intended to award more than what was claimed and even if he had intended to do so, this, he could not have accomplished, in the absence of the consent of the parties to amend the claim, he submitted.
It was further submitted by him that the claim was for arrears of rent, which, if unpaid, constitutes a separate cause of action and the learned judge could not in February, have added rental which had not accrued.
It was Mr Earle's submission that this case does not fall within the contemplation of rule 42.10 of the CPR as there was no accidental slip or error on thepart of the learned judge when he signed judgment and perfected the order on 13 April 2012. The order, he submitted, reflected the true intention of the learned judge as he intended to order the sum of US$56,840.00. After hearing the claim and the issues presented, he argued, it was not the intention of the learned judge to award the lesser sum of US$22,000.00. Admitting the inconsistency between the minute of order and the perfected judgment, he argued that the affidavits of the respondents disclose the circumstances under which the award of the larger sum was made and...
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