Manfas Hay v Clover Thompson and Jonathon Prendergast

• Jurisdiction: Jamaica
• Judge: Master N. Hart-Hines
• Judgment Date: 22 February 2018
• Neutral Citation: [2018] JMSC Civ 26
• Docket Number: CLAIM NO. 2017HCV01342
• Court: Supreme Court (Jamaica)
• Date: 22 February 2018

[2018] JMSC Civ 26

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

Master N. Hart-Hines (Ag)

CLAIM NO. 2017HCV01342

Between

Manfas Hay

Claimant

and

Clover Thompson

1 ^st Defendant

and

Jonathon Prendergast

2 ^nd Defendant

Ms. Christine Chung instructed by Charmaine Patterson and Associates for the claimant.

Mr. Kevin Williams and Ms. Regina Wong instructed by Grant, Stewart, Phillips and Company for the defendants.

Claim for Recovery of Possession and for damages for Trespass - Proceedings brought by Fixed Date Claim Form — Defence of Adverse Possession — Procedural objection — Whether proceedings ought to have been commenced by means of Claim Form — Whether conversion of proceedings appropriate.

1 This claim concerns a dispute over land located at 12 Dillon Avenue, Kingston 5, St. Andrew and comprised in Certificate of Title registered at Volume 1491 Folio 85 of the Register Book of Titles (hereinafter “the land”). The claimant and his wife are the registered owners of the land, having purchased it in 2015. The 1 ^st and 2 ^nd defendants have been in occupation of the land prior to its acquisition by the claimant.

BACKGROUND

2 On October 20, 2017 the claimant initiated proceedings against the 1 ^st and 2 ^nd defendants by way of a Fixed Date Claim Form (hereinafter “FDCF”) and also filed an Affidavit in support. The claimant is seeking, inter alia, an order to recover possession of the land and declarations that, as the registered proprietor, he has a legal interest in the land and is entitled to possession by virtue of section 68 at the Registration of Titles Act, and also that the defendants have no legal or equitable interest in the said land. The issues for me to consider are whether the proceedings ought to have been brought by way of FDCF, and whether it is appropriate for me to order that the claim proceed as if begun commenced by Claim Form.

3 The claimant initially commenced proceedings in the Corporate Area Parish Court (formerly Resident Magistrates Court) in June 2015 against the same defendants, for an order for the recovery of possession of the same land. The matter was transferred from the Corporate Area Parish Court to the Supreme Court pursuant to section 131 of the Judicature (Parish Court) Act for want of jurisdiction. After the matter was transferred to the Supreme Court, a claim number was assigned by the Registrar and a notice produced and served on the claimant and the defendants regarding the date set for Case Management Conference (hereinafter “CMC”). When the matter came before Master Mason on September 27, 2017, she issued directions including that proceedings be filed on or before October 20, 2017. Master Mason also set the matter for trial in open court before a judge for two days, on May 13 and May 14 2020. The CMC was adjourned to January 15, 2018. In the interim, on January 2, 2018, the claimant's counsel filed a Notice of Application for Court orders pursuant to Rule 17.10 of the Civil Procedure Rules (hereinafter “the CPR”), seeking an expedited trial in 2018 due to the claimant's physical disability and ill-health.

THE SUBMISSIONS

4 The matter came before me on January 15, 2018 for a CMC hearing and for the Notice of Application filed on January 2, 2018 to be heard. It was at that hearing that the defendants' counsel Mr. Kevin Williams, made a procedural objection that the proceedings had been improperly commenced by FDCF and ought to have been commenced by claim form as it would have been apparent to the claimant's counsel that the matter involved substantial disputes of fact, since the claimant and 1 ^st Defendant had given evidence indicating the issues joined and for determination in the Parish Court before the matter was transferred to the Supreme Court. Counsel currently representing the parties also represented them when the matter was before the Parish Court. Mr. Williams relied on the Privy Council decision of Eldemire v Eldemire [1990] 38 WIR 234 in support of his submission that the claim form was the most appropriate machinery in a case such as the instant case where there are substantial disputes of fact. Mr. Williams submitted that the nature of the dispute necessitated that there be a trial in open court, and he further submitted that the fact that Master Mason set the matter for trial in open court in May 2020, indicates that Master Mason had not intended that the matter commence by way of FDCF when she gave directions on September 27, 2017. In addition, Mr. Williams submitted that the claim has not been properly brought as the claimant's wife Maisene Hay ought to be added as the 2 ^nd claimant, as she is a registered proprietor.

5 In response to those submissions, the claimant's counsel Ms. Chung indicated that Rule 8.1(4) of the CPR prescribes that claims for possession of land ought to be brought by way of FDCF, and that the matter could be properly heard in chambers and a direction be given for the cross-examination of the parties. Further, Ms. Chung referred to the application for earlier trial dates, made on the basis of the claimant's ill-health. One effect of the matter proceeding by way of FDCF, is that the claimant is likely to get an earlier date for a trial in chambers.

6 I invited counsel to make written submissions and adjourned the CMC to January 30, 2018. However on that date I did not have the benefit of seeing both submissions filed and the hearing was therefore adjourned to February 22, 2018. I have now considered the submissions filed by counsel for the parties and I am grateful for these.

7 In her written submissions, Ms. Chung indicated that the use of the FDCF was in full compliance with Rule 8.1(4)(b) of the CPR and she relied on the decisions of Div Deep Limited, Mahesh Mahtani and Haresh Mahtani v Tewani Limited [2010] JMCA Civ 10 and James Brown v Karl Rodney and Maureen Rodney [2017] JMSC Civ. 32. Ms. Chung also submitted that Eldemire v Eldemire is distinguishable from the instant case as it involved a trust estate. I have addressed these and other cases below.

8 In their written submissions, Mr. Williams and Ms. Wong indicated that this was not an appropriate claim to be commenced by FDCF and having regard to the nature of this claim and defence, contemplation should have been given to commencing it by way of claim form. The defence also relied on the decision of Georgia Pinnock v Lloyd Property Development Ltd and others [2011] JMCA Civ 9.

THE LAW

9 The scope of Rule 8.1(4)(b) and intent of the drafters of the Rule might be determined by looking at the other words that surround it and the purpose of Rule 8.1(4) itself. I have considered Rule 8.1(4) cumulatively, and, in particular, I have noted the wording of Rule 8.1(4)(d). Rule 8.1(3) and (4) of the CPR state:

“8.1 …

(3) A claim form must be in Form 1 except in the circumstances set out in paragraph (4).

(4) Form 2 (fixed date claim form) must be used

• (a) in mortgage claims;

• (b) in claims for possession of land;

• (c) in hire purchase claims;

• (d) where the claimant seeks the court's decision on a question which is unlikely to involve a substantial dispute of fact;

• (e) whenever its use is required by a rule or practice direction; and

• (f) where by any enactment proceedings are required to be commenced by petition, originating summons or motion.” (My emphasis)

10 It seems to me that it would be an anomaly if Rule 8.1(4)(b) would have wider application than Rule 8.1(4)(d), so that, under the latter rule, only claims which were “unlikely to involve a substantial dispute of fact” could be brought by FDCF, but under the former rule it would not matter that a claim was likely to involve a substantial dispute of fact. In light of the wording of Rule 8.1(4)(d), it must have been envisaged by the drafters that for all claims brought pursuant to Rule 8.1(4), consideration would be given to the nature of the claim to be brought and the likely defence to such a claim, so that it would be permissible for proceedings to be brought by claim form instead of FDCF, or, for the proceedings brought by FDCF to be treated as if begun by claim form. In many of the cases I have considered, the courts have adopted the latter approach. I will first address the cases referred to me by counsel and then refer to other cases considered.

11 In Eldemire v Eldemire, Dr. Arthur Eldemire commenced proceedings by writ against his brother Dr. Herbert Eldemire, seeking that the latter, as personal representative of their late mother's estate, give an account in respect of the estate. Dr. Herbert Eldemire in turn commenced proceedings against his brother by originating summons seeking, inter alia, a declaration that he was entitled to lands remaining in their parents' estate, and in response to his brother's action, he filed a defence and counterclaim, seeking the same relief in the writ action. The Privy Council considered both suits. In delivering the judgment, Lord Templeman stated at...