Romans v Barrett

• Jurisdiction: Jamaica
• Judge: Carberry, J.A.,Zacca, J.A.,Melville, J.A.
• Judgment Date: 27 April 1979
• Neutral Citation: JM 1979 CA 7
• Docket Number: Civil Appeal No. 18 of 1978
• Court: Court of Appeal (Jamaica)
• Date: 27 April 1979

Court of Appeal

Zacca, J.A.; Melville, J.A.; Carberry, J.A.

Civil Appeal No. 18 of 1978

Romans

and

Barrett

Appearances:

Mr. P.C. King for plaintiff/appellant.

Dr. Lloyd Barnett for defendant respondent.

Real Property - Landlord and Tenant — Rent.

Carberry, J.A.

1 On the 22nd of August, 1977, the plaintiff/appellant filed in the Resident Magistrate's Court for St. James, holding at Montego Bay, two plaints, Numbers 1099 and 1106 of 1977: in the first he claimed from the defendant/respondent three months' rent, for the months March, April and May 1977 at the rate of $160.00 per month, i.e. a total of $480.00; while in the second he claimed from the defendant/respondent two months' rent, for the months of June and July 1977 at the rate of $160.00 per month, i. e. a total of $320.00.

2 Both claims related to the same premises, a three-bedroom house at Lot 314, Porto Bello, in the parish of St. James. The two claims together totalled $80.00, a sum in excess of the normal jurisdiction of the Resident Magistrate's Courts, which is fixed at $600.00 by section 71 of the Judicature (Resident Magistrates) Act. This was not a case in which both parties had agreed to give jurisdiction to the Resident Magistrate's Court under section 72 of the Act, nor was it a case in which the plaintiff offered to abandon the excess of his claim over $600.00 under section 73 of the Act.

3 On the two cases coming up for trial before His Honour Mr. D.O. Bingham, Resident Magistrate for St. James, sitting at Montego Bay on the 2nd. February, 1978, they were taken together, and the counsel for the defendant/tenant took the point that the plaintiff/landlord was dividing his cause of action for the purpose of bringing two suits in the said Court, and was in breach of section 73 of the Act: he argued that the magistrate had no jurisdiction. In reply counsel for the plaintiff asserted that each month's rent represented a cause of action, and that provided that the rent due for the individual month did not exceed the jurisdiction, of the Court, there was nothing wrong with what had been done, and that the plaintiff was not in breach of section 73.

4 The plaintiff's counsel also observed that the plaintiff could have brought an action for each month's rent, as it fell due and remained unpaid, and that there was no reason why the plaintiff should not have joined three month's and two months rental claims as the had done. Defendant's counsel replied that, assuming the plaintiff's claims well founded - which was denied, - at the time the plaints were filed five month's rent was due, that this was one cause of faction for arrears of rent which had been divided for the purpose of suing in the Resident Magistrate's Court, in breach of section 73.

5 The point of jurisdiction was not decided at the first days hearing: evidence was led on behalf of the plaintiff on the 2nd February, and continued on the 14th February. At the end of the plaintiff's case the defendant/tenant's counsel renewed his argument, the plaintiff's counsel replied, and without calling upon the defendant to elect whether he was standing on his submissions, or upon the plaintiff to say whether he wished to abandon the excess, the learned resident magistrate decided that he had no jurisdiction in view of section 73 of the Act, and struck out both claims, with costs to the defendant to be agreed or taxed.

6 On neither day of trial did either counsel cite authority, save that counsel for the defendant referred to Bertie Henry v. Samuel Lee [1975] 13 J.L.R. 76 a case which, though on the section, was not relevant; it decided that a claim against an Insurance Company to recover from them damages that had been assessed against a defendant in a negligence action enjoyed the extended jurisdiction given by section 71 of the Statute to Negligence actions, viz. $1,000.00 instead of the general limit of $600.00.

7 The learned resident magistrate in his reasons for judgment does not refer to any authority either. He was content to say:–

“I was of opinion that the two plaints for rental due from March to July, 1977, being one continuous period gave rise to one cause of action for arrears of rent at the time when the plaintiff elected to pursue his remedy, and not several causes of action for rental which could, as Mr. King contends, be held in abeyance until the plaintiff chose conveniently to split them up as he now has done. At the date of the filing of the plaints the amount due for arrears of rental was the sum total of $800.00 which was in excess of the jurisdiction for claims of that nature.

I came to the conclusion that to allow a plaintiff to split up what was in effect one cause of action into two or more plaints would result in a clear injustice to a defendant in that the defendant would if the claims succeeded be punished by having to pay two sets of costs. section 73 seeks in effect to prevent this sort of practice taking place.* I therefore held that I had no jurisdiction and struck out the claims on that basis and awarded costs to the defendant to be taxed or agreed.”

8 Before commencing to deal with the judgment and the arguments advanced before us on appeal, one may be pardoned for noting that the efforts to avoid “a clear injustice to a defendant” who might be “punished by having to pay two sets of costs” have resulted in: (a) the plaintiff failing to recover any rent whatever, (though it is clearly due), and (b) having himself to pay two sets of costs to the defendant, who has thus not only enjoyed a rent free period in the plaintiff's house, but has made him pay for his temerity in bringing these two plaints in respects of the same. This would I think strike the lay man as being perhaps even more unjust, especially if he were told that the Court has a discretion as to costs, to be exercised judicially it is true. It should however be said at the outset that the point at issue is a difficult one, it has caused a division of judicial opinion, there are no local authorities on the point, and only the most prolonged and careful examination of the authorities in the United Kingdom have eventually resulted in a clear view on the merits of the argument: was this a case of one cause of action or of several?

9 Before turning to the Law on that matter, something should be said of the facts that emerged from the evidence taken.

10 The plaintiff/landlord lives in Kingston. On the 15th June, he entered into a written “Tenancy Agreement” by which he rented the premises, a three-bedroom house on Lot 314 Porto Bello to the defendant/tenant. It was a monthly tenancy, to commence on the 1st July, 1976, terminable by a month's notice on either side. The rental of $160.00 per month was payable on the first day of every month in advance, and the tenancy was to commence on the 1st day of July, 1976. The landlord was to pay taxes, and rates and insurance, (tenant to pay monthly water rates bill). The tenant covenanted to keep the premises in repair, and “to pay the rent at the times and in the manner herein before provided, and should the said rent he in arrear for fourteen(14) days after the time appointed for payment… then the landlord (or) his agent shall have the right to cancel this agreement (and) to enter and retake possession without any notice or demand…”

11 Up to November, 1976, the rent was duly paid. The tenant fell into arrear, and the only other payment made was $320.00 covering two months, paid in February, 1977. That amount would have covered the rent for December 1976 and January 1977 (or January and February?: the landlord has sued for rent due from March 1977).

12 Apparently the plaintiff left the premises at the end of March 1977, but did not surrender them: he left a relative in possession. Plaintiff claimed he did not get the keys back till sometime in July 1977. When he taxed the defendant about them he was told the keys had been kept to effect repairs and repainting, and tenant promised to pay the rent. He never did pay the rent, though it seems the repainting was done. The plaintiff's agent confirmed the evidence above and denied a suggestion that the keys were handed back in May 1977, but returned later to enable the defendant to do the painting. On the basis of the cross-examination it appears that the defendant was at least admitting owing rent to May, and possibly June, as it was not suggested he gave a month's notice in May, and that as to the rest he was claiming to paint the premises in terms of his covenant on the landlord's time and not his own. As noted before the tenant gave no evidence.

13 Section 73 of The Judicature(Resident Magistrates) Act, reads thus:–

“73. It shall not be lawful for any plaintiff to divide any cause of action for the purpose of bringing two or more suits in any of the said Courts; but any plaintiff having a cause of action for more than six hundred dollars, for which a plaint might be lodged under this Act, if such cause of action had been for not more than six hundred dollars, may abandon the excess, and thereupon the plaintiff shall, on proving his case, recover to an amount not exceeding six hundred dollars, and the judgment of the Court upon such plaint shall be in full discharge of all demands in respect of such cause of action, and entry of the judgment shall be made accordingly; and the plaintiff shall in all cases be held to have abandoned any remaining portion of any debt, demand or penalty beyond, the sum actually sued for in the plaint.”

14 At first glance it does appear that the plaintiff/landlord has done exactly what the section is aimed at preventing, in that having a claim against the tenant for arrears of rent amounting to $800.00, he has divided it into two or more suits within the $600.00 limit so as to bring both actions in the Resident Magistrate's Court and so presumably to get a cheaper, quicker and easier remedy than was to be...