Raffington v McIntosh

• Jurisdiction: Jamaica
• Judge: SMITH, J.A.: , HARRISON, J.A.: , G. SMITH, J.A. (Ag.):
• Judgment Date: 24 April 2009
• Neutral Citation: JM 2009 CA 30
• Judgment citation (vLex): [2009] 4 JJC 2401
• Court: Court of Appeal (Jamaica)
• Date: 24 April 2009

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE SMITH, J.A THE HON. MR. JUSTICE HARRISON, J.A THE HON. MISS JUSTICE G. SMITH, J.A. (AG.)

BETWEEN

ELSIE RAFFINGTON

APPELLANT

AND

JOSEPH McINTOSH

RESPONDENT

(Agent of Paulina Lindsay And Margaretta Anderson)

Garth McBean instructed by Carl McDonald for the Appellant.

Mrs. Jacqueline Samuels-Brown and Miss T. Maragh instructed by Miss Yvonne Ridguard for the Respondent.

REAL PROPERTY - Recovery of possession - Licence - Locus standi - Annual value of property not stated

SMITH, J.A.:

I have read in draft the judgment of Harrison, J.A. I agree with his reasoning and conclusion. I have nothing further to add.

HARRISON, J.A.:

1 This is an appeal from the judgment of Her Honour Mrs. Andrea Collins who on the 1 ^st of May, 2006 ordered Elsie Raffington (the appellant) to vacate premises known as Moore Park, Bybrook, situated at Buff Bay in the parish of Portland on or before October 31, 2006.

2 The plaint was filed by Joseph Mcintosh, agent of Margaretta Anderson and Paulina Lindsay who claimed that they were owners of the property and that at all material times, the appellant was a licensee. They further claimed that by notice to quit dated August 20, 2001 the appellant was requested to deliver up the premises to the respondent but failed to do so.

3 The appellant in her defence contended that the respondent had no locus standi to bring the claim since Anderson and Lindsay had no proof of ownership of the property and were not landlords. She agreed that the land in question had been owned by Franklyn Anderson, a brother of both the respondent Margaretta Anderson and the appellant's mother, Indiana Anderson. She contended however, that Franklyn Anderson had died intestate; no Letters of Administration were applied for so, the estate remained "unsettled". It was also said that the beneficiaries to the estate Franklyn Anderson were Margaretta Anderson, Indiana Anderson (deceased mother of the appellant) and Regina Anderson.

4 The background facts are summarized hereunder:

• (a) Franklyn Anderson, a brother of Margaretta Anderson and Indiana Anderson, was the owner of the Moore Park property. In the mid 1980s Indiana and her children lived on the land at Moore Park. Margaretta was then living in the United States of America (U.S.A).

• (b) There was an old house on the property and in 1986, Indiana had asked Margaretta to build a new house since the original structure was old and broken down. Margaretta spoke to her brother Franklyn about the request since she said that the land and house had been owned by Franklyn and herself. Franklyn had bought the land from one Matthew Shaw. A receipt (Exhibit 1) for purchase of the land was admitted in evidence.

• (c) Margaretta and Franklyn got the land surveyed and Margaretta was put in possession of the land by Franklyn in 1987. The survey documents were tendered and admitted into evidence as Exhibit 2.

• (d) Whilst Margaretta was in the USA she sent US$11,000.00 to Franklyn in order to commence construction of the new house. Her brother Consie, who was also living in the USA, had also sent money to Indiana in order to assist her. Paulina Lindsay the daughter of Margaretta had also contributed.

• (e) The plan for the house was admitted in evidence as Exhibit 3. Margaretta said she would send money to Franklyn since he was in charge of building the house.

• (f) The house that was being built was comprised of two bedrooms, a living room, kitchen, bathroom and a verandah. The room identified as Room number 3 on the plan, was designated as Margaretta's bedroom. It was agreed that Margaretta would occupy this room whenever she visited Jamaica. Room number 1 was occupied by Indiana and her children.

• (g) The basic structure of the house was built with money provided by Margaretta and Paulina.

• (h) The appellant with the help of her sister Clarice had put in certain fixtures such as kitchen cupboards and other things to make the house habitable.

• (i) The construction of the house was substantially completed at the time of Franklyn's death.

• (j) Franklyn died in 1993 and the appellant took possession of room number 3. Margaretta did not object to her staying in that room but after Indiana died in 1999, the appellant took over the entire house. The appellant was requested to deliver up possession of the premises but she failed to do so. A Notice to Quit (Exhibit 5) was therefore served on the appellant.

• (k) Margaretta continued to pay the taxes for the land after the death of Franklyn. Tax certificate dated May 8, 2003 was admitted in evidence as Exhibit 6.

5 On May 10, 2006 the appellant lodged a Notice of Appeal. The judgment of the learned Resident Magistrate was challenged under two main heads: -

Ground of Appeal 1

The Learned Resident Magistrate erred in finding as she did that the provisions of Order 6 Rule 4 of the Resident Magistrates Court Rules requiring the Particulars of Plaint to state the annual value of the land was satisfied by oral evidence given during the trial by the Plaintiffs/Respondents. The Learned Resident Magistrate so erred for the following reasons:-

• (a) That the annual value of the property was not stated in the Particulars of Claim and this omission was fatal and could not be cured by oral evidence.

• (b) That the Court had no jurisdiction to make a declaration and/or order as to the occupation and possession of the house on the basis of proprietary estoppel.

• (a) The Particulars of Plaint did not state the annual value of the property and this omission could not be legally cured by the subsequent oral evidence.

• (b) In any event, the oral evidence of the Claimant that the annual value did not exceed $75,000.00 and the unimproved annual value of the land stated in the tax receipts exhibited at the trial did not constitute sufficient evidence of the annual value of the property and could not cure the omission to state the annual value of the property in the Particulars of Plaint.

6 Mr. Garth McBean, for the appellant, has submitted that by virtue of Order 6 Rule 4 of the Resident Magistrates Court Rules (the Rules) failure to state the annual value of the property in the particulars of claim was fatal and could not be cured by oral evidence of Paulina Lindsay who had testified that the annual value did not exceed $75,000.00.

7 Order 6 Rule 4 of the Rules provides as follows:

"In all actions for the recovery of land the particulars shall contain a full description of the property sought to be recovered, and of the annual value thereof, and of the rent, if there be any, fixed or paid in respect thereof", (emphasis supplied)

Mr. McBean submitted that the word "shall" referred to in Order 6 (supra), made it mandatory for the claimant to state the annual value in the particulars of claim.

8 The word "shall" has been construed in the English case of Cooke v New River Co (1888), 38 Ch 56 and at p. 69, Bowen LJ, said:

'After all, the word 'shall' is only the future tense and colourless, but it may receive, and it does receive, in ordinary language either a compulsory colour or an optional colour from the context.'

9 In Craies on Statute Law, 4th Edn, at p 240, the following passage appears:

'As a general rule, the conditions imposed by statutes which authorise legal proceedings to be taken are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the Legislature simply for the security or benefit of the parties to the action themselves, that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the court.'

10 In Maxwell on The Interpretation of...