Primrose Cohen v Rollington Sterling and Linvel Sterling

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Morrison JA,McIntosh JA,Brooks JA
• Judgment Date: 07 March 2014
• Neutral Citation: JM 2014 CA 28
• Docket Number: APPLICATION NO 66/2013
• Date: 07 March 2014

[2014] JMCA App 6

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Morrison JA

The Hon Mrs Justice McIntosh JA

The Hon Mr Justice Brooks JA

APPLICATION NO 66/2013

Between

Primrose Cohen

Applicant

and

Rollington Sterling

1st Respondent

and

Linval Sterling

2nd Respondent

Carlton Williams instructed by Williams McKoy and Palmer for the applicant

William McCalla instructed by Robinson Phillips and Whitehorne for the respondents

CIVIL PROCEDURE - Appeal - Application for extension of time for filing appeal - Default judgment for recovery of possession - Application to set aside default judgment - Judicature (Resident Magistrates) Act, s. 266

Morrison JA

1 I have read, in draft, the judgment of my brother Brooks JA. I agree with his reasoning and conclusion and have nothing to add.

McIntosh JA

2 I have read, in draft, the judgment of Brooks JA and agree that his reasoning and conclusion form the basis for our decision to dismiss Miss Cohen's application.

Brooks JA

3 On 14 November 2013, we heard Ms Primrose Cohen's application for an extension of the time allowed for filing an appeal. On 29 November 2013 we refused the application with costs to the respondents, Messrs Rollington Sterling and Linval Sterling, and promised to put our reasons in writing at a later date. We now fulfil that promise.

4 Ms Cohen is aggrieved by an order made in her absence on 19 March 2012 by the learned Resident Magistrate for the parish of Saint Mary. It will be referred to hereafter as ‘the default judgment’. The default judgment was that Ms Cohen should quit and deliver up to the Sterlings, by 31 May 2012, possession of premises at lot 65 Tremelsworth Land Settlement in the parish of Saint Mary (the premises). Ms Cohen is also aggrieved by the learned Resident Magistrate's refusal to consider an application to set aside the default judgment. She wishes to appeal against both the default judgment and against the learned Resident Magistrate's refusal to set it aside. She however did not file a notice of appeal within the stipulated time. Before assessing her application to this court, to extend the time within which to appeal, the background facts will be outlined.

Background facts

5 Ms Cohen asserts that since she was a child she has been living at the premises with her parents and other family members. The property was apparently originally owned by Mr Arthur Douglas. Mr Arthur Douglas died and devised the property in his will to his son Mr Morris Douglas.

6 The Sterlings claim to have purchased the property from Mr Morris Douglas and filed their claim against Ms Cohen for possession of the premises. When the claim was first before the court Ms Cohen was present and stated her defence to it. She informed the learned Resident Magistrate that she disputed the Sterlings' title and claim to possession. She asserted then, that she had ‘been paying lease to Mr Morris Douglas who is the owner of the property’. The case was thereafter set for trial. It was subsequently adjourned on several occasions without the trial being commenced. Ms Cohen did not attend on 19 March 2012 and the matter proceeded in her absence.

7 Ms Cohen did not deliver up possession as ordered by the learned Resident Magistrate, and on 11 June 2012 the court's bailiff evicted her from the premises, placing her belongings outside. This was done pursuant to a warrant of possession issued by the Resident Magistrate's Court for the parish of Saint Mary. Despite that official action, Ms Cohen re-entered the premises after the bailiff had left. There is a dispute of fact as to who it was that physically replaced the items in the house, but it appears that Ms Cohen did resume occupation of the premises.

8 Ms Cohen applied to the Resident Magistrate's Court for the default judgment to be set aside. She asserted that she was ill on the day that it was handed down. The application came on for hearing on 9 July 2012. The learned Resident Magistrate refused to hear it, however, on the basis that, the warrant of possession having been executed, the court's authority was spent.

9 The Sterlings then made an application to have Ms Cohen committed to prison for her re-occupation of the premises, but up to the date of our decision that application had not been heard and Ms Cohen was still in possession thereof. The application had been adjourned on several occasions while Ms Cohen pursued a related claim in the Supreme Court. That claim was eventually withdrawn on the basis that the relief sought therein was misconceived.

10 It was after that withdrawal that Ms Cohen sought to pursue the present application before this court. She filed the application on 26 June 2013.

The submissions in outline

11 Mr Williams submitted on Ms Cohen's behalf that this court is authorised by section 266 of the Judicature (Resident Magistrates) Act and section 12 of the Judicature (Appellate Jurisdiction) Act to grant the extension of time. He argued that Ms Cohen's delay in filing the present application was not out of wilful disregard for the rules of the court but, instead, was born of impecuniosity in the first instance and, thereafter, of mistake as to the correct course to be pursued to have the judgment set aside. He pointed to the claim that Ms Cohen had pursued in the Supreme Court as evidence that she was not sleeping on her rights but was always interested in pursuing them. Learned counsel argued that the justice of the case required Ms Cohen to be granted permission to appeal the decisions of the learned Resident Magistrate.

12 Mr McCalla on behalf of the Sterlings submitted that the reliance on section 266 and section 12, mentioned above, was misplaced. Learned counsel relied heavily on section 256 of the Judicature (Resident Magistrates) Act, which addresses the payment of the security for the costs of an appeal. He submitted that previous decisions of this court had established that in the absence of the payment, within the prescribed time, of the sum stipulated for securing the costs of the appeal, this court ought not to grant permission to appeal. He further argued that the court had also established that it could not extend the time within which to pay the sum for the security for costs. He relied, for support of those submissions, on the cases of Wilbert Christopher v Attorney General of Jamaica RMCA Motion No 26/2001 (delivered 9 November 2001) and Patterson and Nicely v Lynch (1973) 12 JLR 1241. In the absence of that payment, Mr McCalla submitted, the present application must fail.

The analysis

13 The assessment of this application requires the court to examine and apply three sections of the Judicature (Resident Magistrates) Act and section 12 of the Judicature (Appellate Jurisdiction) Act. The first section from the former Act is section 186, which allows a Resident Magistrate to set aside a judgment given in the absence of a defendant. It states:

‘186. If on the day so named in the summons, or at any continuation or adjournment of the Court or cause in which the summons was issued, the defendant shall not appear or sufficiently excuse his absence, or shall neglect to answer when called in Court, the Magistrate, upon due proof of the service of the summons, may proceed to the hearing or trial of the cause on the part of the plaintiff only; and the judgment thereupon shall be as valid as if both parties had attended:

Provided always, that the Magistrate in any such cause, at the same or any subsequent Court, may set aside any judgment so given in the absence of the defendant and the execution thereupon , and may grant a new trial of the cause, upon such terms as to costs or otherwise as he may think fit, on sufficient cause shown to him for that purpose.’ (Emphasis supplied)

It will be noted that the proviso to the section allows the Resident Magistrate to set aside the judgment as well as any execution of that judgment. The effect of the proviso would support the merits of Ms Cohen's complaint against the refusal of the learned Resident Magistrate to set aside the default judgment.

14 The second section that...