Re Fong Yee, Roderick

• Jurisdiction: Jamaica
• Judge: Patterson, J.A.,Rattray, P.,Wolfe, J.A.
• Judgment Date: 26 June 1995
• Neutral Citation: JM 1995 CA 31
• Docket Number: Nos. 9 & 10 of 1994
• Date: 26 June 1995
• Court: Court of Appeal (Jamaica)

Court of Appeal

Rattray, P.; Wolfe, J.A.; Patterson, J.A.

Nos. 9 & 10 of 1994

Re: Fong Yee, Roderick

Appearances:

Enos Grant and Miss Allison Chunq, instructed by Clough, Long & Co., for the appellants

Trust - Appointment of personal representative — Appellants applied for the appointment by the court of a person to represent the estate of the deceased and relied on s. 124 of the Judicature (Civil Procedure Code) Law — Trial judge dismissed the summons — Appellants appealed — Court found that the appellants sought the appointment of a personal representative in an estate where no proceeding was before the court — Appointment was not within the scope of s. 124 of the Judicature (Civil Procedure Code) Law — Trial judge was correct in dismissing both summonses — Appeal was dismissed.

Patterson, J.A.

1 Both Samuel Mitchell and Noel McIntosh, the appellants, applied by exparte originating summonses, couched in identical terms, for leave to file writs of summons against the estate of Roderick Fong Yee, deceased. Alternatively, each sought an order that Anita Fong Yee of 17 Dillsbury Avenue, Kingston 6 in the parish of St. Andrew, the widow of the said Roderick Fong Yee, deceased, be appointed to represent the estate for all purposes of the intended actions. Each deposed that he had worked with George Fong Yee, deceased, the father of Roderick Fong Yee, for a number of years up to the time of his death in or about 1977. Thereafter, Roderick Fong Yee took over the business of his deceased father, and each appellant continued working for him up to the time of his death in or about October 1993. Since then, they have been turning up for work, but they have not had any work to do, nor have they been paid. Consequently, each is seeking to recover from the estate of Roderick Fong Yee vast sums which they say are owing for redundancy, vacation leave pay, and for pay in lieu of notice. They say they have been unable to discover the appointment of personal representatives of the deceased and their applications are aimed at the appointment by the Court of a person to represent the estate or for an order that they proceed in the absence of any such representation.

2 The summonses came on for hearing before Cooke, J. on the 22nd June, 1994. Counsel for the appellants relied then, as he did before us, on the provision of section 124 of The Judicature (Civil Procedure Code) Law (“the Code”) which reads:

“124. If in any cause, matter or other proceeding, it shall appear to the Court or a judge that any deceased person who was interested in the matter in question has no legal...