New Falmouth Resorts Ltd v Demetri Jobson and Others

• Jurisdiction: Jamaica
• Judge: Brooks JA,P Williams JA (AG),Phillips JA
• Judgment Date: 29 July 2016
• Neutral Citation: JM 2016 CA 81
• Docket Number: SUPREME COURT CIVIL APPEAL NO 97/2015
• Court: Court of Appeal (Jamaica)
• Date: 29 July 2016

[2016] JMCA Civ 43

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

The Hon Miss Justice Williams JA (AG)

SUPREME COURT CIVIL APPEAL NO 97/2015

Between

New Falmouth Resorts Ltd

Appellant

and

Demetri Jobson

1 ^st Respondent

And

Max Gilbert Jobson

2 ^nd Respondent

And

Administrator General For Jamaica (Administrator of the Estate of Gilbert Baron Jobson)

3 ^rd Respondent

Written submissions filed by Riam Esor and Company for the appellant

Written submissions filed by Oswest Senior-Smith and Company for the 1 ^st and 2 ^nd respondents

PROCEDURAL APPEAL

(Considered on paper pursuant to rule 2.4(3) of the Court of Appeal Rules 2002)

1 I have read in draft the judgment of my sister P Williams JA (Ag). I agree with her reasoning and conclusion and have nothing useful to add.

Brooks JA

2 I too have read the draft judgment of my sister P Williams JA (Ag) and agree with her reasoning and conclusion.

P Williams JA (AG)

3 On 18 September 2015, New Falmouth Resorts Limited, the appellant, filed a notice of (procedural) appeal seeking to set aside an order by Lindo J (Ag) (as she then was) made on 28 August 2015, whereby she refused its application for security for costs against Demetri Jobson, the 1 ^st respondent, and Max Gilbert Jobson, the 2 ^nd respondent.

Background

4 Gilbert Baron Jobson, who died on 23 May 1980, is the father of the 1 ^st and 2 ^nd respondents. At the time of his death, he owned over 300 acres of land situated in Orange Grove in the parish of Trelawny, comprised in certificate of title registered at Volume 29 Folio 7 of the register book of titles. These lands were purportedly subject to an option to purchase which was dated 15 September 1967 and made between Gilbert Baron Jobson and an agent for the appellant.

5 The Administrator General was appointed administrator for the estate of Gilbert Baron Jobson on 30 December 1980 and in 2004 approached the Supreme Court for an order to ratify the sale of the lands to the appellant. Upon receipt of the order sought, the Administrator General transferred the title to the lands to the appellant and it became the registered proprietor thereof.

6 The 1 ^st and 2 ^nd respondents subsequently became aware of the transfer of the lands and commenced proceeding by way of claim number 2012 HCV 02305, seeking, among other things, to have the order ratifying the sale of lands set aside and to have themselves, along with the other children of Gilbert Baron Jobson, declared beneficial owners of the lands. The Administrator General was named as the 1 ^st defendant and the appellant as the 2 ^nd defendant to the claim. Several applications have been made arising from this claim.

7 The appellant's application for security for costs of the legal proceedings, arising from claim number 2012 HCV 02305, was filed in September 2014. The application was heard and refused by Lindo J (Ag) on 28 August 2015.

The documents filed in this court

8 The notice of procedural appeal filed 18 September 2015 by the appellant referred to the decision of the learned judge ‘contained in the draft order, which is attached hereto’. However, no such order was in fact attached. The appellant gave the details of the order appealed as being:

• a. Application refused.

• b. Leave to appeal to the 2 ^nd Defendant refused.

• c. Costs to the claimant to be taxed, if not agreed.’

9 The checks which were made with the Supreme Court revealed that there was a minute of order signed by the learned judge. The order was however not drawn up and filed and is therefore not perfected. The orders which were made as seen from the minute of order are:

• ‘1. The application for security for costs is refused.

• 2. Leave to appeal is refused.

• 3. The matter is adjourned to September 3, 2015 at 9:30 am for further PTR.’

10 The next step apparently taken by the appellant was to file the notice of appeal on 18 September 2015. It is not indicated anywhere, however, that the appellant applied for and was granted permission to pursue this appeal.

Analysis

11 The first matter that therefore has to necessarily detain this court is whether the matter is properly before us. It has to be considered whether in light of the refusal of the learned judge to give permission to appeal, such permission is necessary. There can be no dispute that this is a matter which falls within the definition of ‘procedural appeal’ as set out in rule 1.1(8) of the Court of Appeal Rules (CAR), 2002, which provides:

“procedural appeal” means an appeal from a decision of the court below which does not directly decide the substantive issues in a claim but excludes —

• (a) any such decision made during the course of the trial or final hearing of the proceedings;

• (b) an order granting any relief made on an application for judicial review (including an application for leave to make the application) or under the Constitution;

• (c) the following orders under CPR Part 17 —

  • (i) an interim injunction or declaration;

  • (ii) a freezing order as there defined;

  • (iii) a search order as there defined;

  • (iv) an order to deliver up goods; and

  • (v) any order made before proceedings are commenced or against a non-party;

• (d) an order granting or refusing an application for the appointment of a receiver; and

• (e) an order for committal or confiscation of assets under CPR Part 53.

  …’

12 The application for security for costs, since it did not...