Neil Shaw v Jamaica North Coast Ltd
| Jurisdiction | Jamaica |
| Judge | Palmer Hamilton, J |
| Judgment Date | 04 May 2018 |
| Neutral Citation | [2018] JMSC Civ 56 |
| Docket Number | CLAIM NO. 2016 HCV 00725 |
| Court | Supreme Court (Jamaica) |
| Date | 04 May 2018 |
[2018] JMSC Civ. 56
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
Palmer Hamilton, J (AG.)
CLAIM NO. 2016 HCV 00725
Mr. Jerome Spencer, Ms. Vanessa Young instructed by Patterson, Mair, Hamiltonfor the Applicant.
Mrs. Marjorie Shaw instructed by Brown and Shaw for the Claimant/Respondent.
Mr. Stuart Stimpson, Ms. Kimberly Williamsinstructed byHart, Muirhead and Fattafor the Defendant.
Caribbean Development Consultants v. Gibson (May 25, 2004) Supreme Court of Jamaica No. CL 323 of 1996
Administrator General v. Metropolitan Parks and Market Ltd. claim No. A 100 of 2000
Martin v. Kaisary [2005] E.W.C.A. Civ. 594
Prophecy Group L.C v. Seabreeze Company Ltd. SCB Claim No. 185 of 2001
Fritz v. Collins [2016] J.M.C.C. Comm 24
Amon v. Raphael Truck and Sons Ltd. [1956] 1 All E.R. 273
Gurtner v. Curcuit [1968] 2 Q.B. 587
Jamaica Citizens Bank Ltd. v. Dyoll Insurance Co. Ltd. [1991] 28 J.L.R. 415 .
Rules 19.3 and 19.4 of the CPR
Rule 19.4 of the Limitation Act
Addition and Substitution of Parties — Whether party by virtue of his registered interest in a property as a mortgagee has a right to be added as party to a Claim — Rules 19.3 and 19.4 of the Civil Procedure Rules considered — Significance of relevant Limitation period in the context of Rule 19.4 and the Limitation Act — Consolidation
The matter concerns an application by Pelican Securities Limited filed on November 28 th, 2016 to be added as a party to the Claim.
On June 30 1965, Jamaica North Coast Limited, hereinafter referred to as JNC Ltd, was endorsed as the Registered Proprietor of those parcels of land registered at Volume 1022 Folio 175 (hereinafter referred to as Property #1) and Volume 1022 Folio 176 of the Register Book of Titles (hereinafter referred to as Property #2).
The substantive Caim was initiated by Mr. Neil Shaw, by way of a Fixed Date Claim Form on or around February 23 rd, 2016 seeking a declaration that he has adversely possessed part of all those parcels of land registered at Volume 1022 Folio 175 and Volume 1022 Folio 176 and by so doing extinguished JNC Ltd. title to the land.
Mr. Shaw alleges that his father also lived in undisturbed possession of the land before his death and he has been so living for over twelve (12) years. On July 24 th, 1998, Mr. Shaw's father, Valentine Shaw, commenced proceedings by way of Suit No. E 326/96 against the said JNC Ltd to be declared the registered proprietor of both properties by way of adverse possession. Mr. Valentine Shaw alleged that he had disposed of JNC Ltd. from as far back as 1969.
The proceedings were never determined and it is alleged that JNC Ltd did not challenge the Claim. Notwithstanding this, an interim order was granted on July 30, 1996, restraining JNC Ltd from interfering with Mr. Valentine Shaw's quiet enjoyment of property # 1 and property # 2. Another interim order was granted on February 4 th, 1997 restraining the Registrar of Titles from registering mortgage numbered 959821 to the Applicant, Pelican Securities Limited against property # 1. The interim order was only in place for 7 days and subsequent to this, the said mortgage was registered to the Applicant against property # 1 on February 26 th, 1997.
The Applicant therefore had a registered interest in property # 1 as up to the date of the proceedings, JNC Ltd has not fully paid and discharged said mortgage. The mortgage instrument dated October 17 th, 1996 outlines at Clauses 3(l) and (p) that the Applicant has the powers to sell, foreclose and enter into possession of the mortgaged property. In essence, the Applicant is seeking to be joined as a defendant in the claim.
The primary issue before the Court is:
Whether the Applicant, by virtue of his registered interest in property # 1 as a mortgagee of JNC Ltd, has a right to be added as a party to the Claim.
Pelican Securities Limited's application is supported by an uncontested affidavit.
The Applicant contends that JNC Ltd. owes approximately US $173,000.00 arising from the loan made in October 1996 and the interest of 12% per annum that has accrued since then.
The Applicant grounds its application in Rule 19.3(1) and (2) of the Civil Procedure Rules, which empowers the Court with or without an application to add a party to a Claim.
The Applicant contends that by virtue of Section 109 of the Registration of Titles Act and Clause 3(l) and (p) of the Instrument of Mortgage, it has powers to sell, foreclose and enter into possession of the mortgaged property. The Applicant also contends that by virtue of Dagor Limited v MSB Limited and National Commercial Bank Jamaica Limited [2015] JMSC Civ. 242, the Claimant should have named it as a defendant from the outset.
The Applicant maintains that the issue of whether Mr. Shaw's claim by way of adverse possession can defeat the rights conferred on Pelican under the mortgage cannot be properly ventilated without it being added as a party. The Applicant noted that the cases of Fullwood v Curchar and Mazelie v Prescott, relied on by the Defendant, are of no assistance to the Court as neither dealt with the issue of adding parties to the claim.
The Applicant contends that the evidence before the Court is that the last payment made by JNC Ltd was in 2012 and as such its rights, by virtue of the Limitation of Actions Act, would not be extinguished until 2024. The Applicant also maintains that no letters of administration were granted to Mr. Neil Shaw in respect to his father's estate and as such he cannot claim as administrator of the estate of Valentine Shaw.
The Applicant submits that by virtue of Batts, J's pronouncements in Dagor Ltd, the mortgagee would still have remedies available to him, even if it is subsequently found that its rights have been extinguished by virtue of the Limitation of Actions Act. The Applicant also contends that JNC Ltd has not objected to the application and as such would suffer no prejudice from the joinder.
The gravamen of the Respondent's case is that the Claim for possessory title preempted the execution of the Mortgage Deed by JNC Ltd. The Respondent maintains that almost 20 years after the filing of his father's claim, Mr. Neil Shaw filed the Claim seeking in his own right, or as the Administrator of the Estate of Valentine Shaw, a declaration that he had acquired possessory title with respect to both properties. The Defendant also asserts that the affidavit evidence of Mr. Shaw has been unchallenged and that JNC Ltd has not defended the Claim.
The Respondent maintains that by virtue of Rule 19.2(3) of the Civil Procedure Rules, adding the applicant to the Claim is neither desirable to resolve the matters in dispute nor is there an issue involving the Applicant that is materially connected to the matters in dispute. The Defendant maintains that the interest of the Applicant is confined solely to Property #1 and that the issue before the Court is whether or not Mr. Shaw and/or his late father dispossessed JNC Ltd. or its legal interest in Property #1 and Property #2. The addition of the applicant cannot assist the Court or advance the Court's determination of the substantive issue.
The Respondent relied on Rule 19.4 of the CPR which state that the Court may add or substitute a party after the end of the relevant limitation period if:
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(i) The relevant limitation period was current when the proceedings were started and;
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(ii) The addition of the party is necessary.
The Defendant maintains that in the case of both claims by Valentine Shaw and Neil Shaw, the limitation period had expired and JNC Ltd.'s title had been extinguished. Pelican, by extension, has no interest in the matter at hand. Section 7 of the Limitation of Actions Act indicates that any person claiming under any mortgage has a period of twelve (12) years next after the last payment of any part of the principal money or interest secured by such mortgage.
The thrust of the Respondent's application is that JNC Ltd's title to the property had been extinguished before the registration of the mortgage, and as such, was unable to pass good title to the Applicant. The relevant limitation period had passed prior to the endorsement of the mortgage. The Defendant asserts that the case can be distinguished from the Dagor case as Dagor concerned the passage of time subsequent to the registration of the mortgage which was in issue while in the instant case the limitation period passed prior to the registration of the mortgage.
The Respondent submits that even if the consideration of the Limitation Act was disregarded, as between the parties, the Limitation period within which the Applicant could enforce the terms of the Mortgage Deed had expired in or about February 2009. The Defendant also asserts that the right to exercise power of sale runs concurrent with the right to file a claim, and given that the Applicant's right and title have been extinguished, the Power of Sale cannot survive.
Rules 19.4(1) and (2) of the CPR, which the Respondent placed much reliance on, outlines that a party can only be added or substituted after the relevant limitation period, if the Court is satisfied that—
Rule 19.4(3) states that:
The addition or substitution of a party is necessary only if the court is satisfied that—
(a) The new party is to be substituted for a party who was named in the claim form in mistake for the new party
(b) The interest or liability of the former party has passed to the new party; or
(c) The claim cannot properly be carried on by or against an existing party unless the new party is...
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