Ronald Paragh v George Paragh
| Jurisdiction | Jamaica |
| Judge | T. Hutchinson, J (AG.) |
| Judgment Date | 19 July 2019 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2017 HCV 01546 |
| Date | 19 July 2019 |
[2019] JMSC Civ 152
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. 2017 HCV 01546
Phyllis Dyer and Raymond Samuels for the Applicant/Claimant
Fabian Campbell instructed by Kingston Legal Aid Clinic for the Defendant/Respondent
Civil practice and procedure — Parties — Application for order for substitution of claimant — Addition of defendant — Amendment to statement of case — Whether claimant had standing to bring an original claim in the matter — Whether claim was an administration claim.
This is a matter in which Lisa Paragh, Administrator of the Estate of Ruby Paragh, by way of Notice of Application for Court Orders which were filed on the 5 th of July 2018, is seeking the following orders from the Court;
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1. An order that as Administrator of the Estate of Ruby Paragh, late of Rosewell in the Parish of Clarendon by virtue of Grant of Administration granted out of the Supreme Court of Judicature of Jamaica on the 16th day of May 2018, Lisa Paragh be substituted as the Claimant herein.
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2. An order permitting the New Claimant to file a Claim Form alleging Fraud against the Claimant (sic) and the Registrar of Titles based on the Defendant's Application for Title Application No. 2011344.
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3. An Order permitting the Claimant to file Particulars of Claim.
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4. An order that Anika Paragh of 237 Spanish Town Road be added as a Defendant to the Claim.
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5. Costs of this Application to be costs in the Claim.
In support of this application, the Applicant has filed a joint consent of both herself and Ronald Paragh, the original Claimant in this matter, agreeing for her to be substituted as the Claimant. She has also sworn to an affidavit in support of this application which makes reference to the following;
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a. The original claim which was brought,
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b. The grant of administration given to her on the 16th of May 2018,
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c. The documents submitted by the Defendant in support of his application for first registration which she says contains false representations amounting to fraud.
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d. An explanation as to the reason why Anika Paragh was not added as a Defendant in the original application.
The claim files its genesis in the fact that on the 31 st of May 1992, Ruby Paragh died intestate possessed of a parcel of land in Rosewell, Clarendon. She was the mother of Ronald Paragh the Claimant herein, George Paragh, the Defendant and a number of other children to include Lisa Paragh, the Applicant.
According to the Claimant, on the 23 rd of February 2017 and 2 nd of March 2017, an advertisement was placed by the Defendant in the Daily Observer pursuant to his efforts to bring the land in question under the Registration of Titles Act. This application was made by the Defendant without the knowledge of the other beneficiaries and it only came to their attention after the 9 th of March 2017. An attempt was made to lodge a caveat against this registration but it was out of time and title was issued to the Defendant and his daughter Anika Paragh as joint tenants.
In order to challenge this grant, the Claimant filed a fixed date claim form on the 10 th of May 2017 with an affidavit in support. The Fixed Date claim form sought;
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(i) A declaration that the estate of Ruby Paragh is the legal owner of the said parcel of land,
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(ii) That the Registrar of Titles be restrained from registering the land; or
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(iii) In the alternative that the Registrar be directed to cancel any Tile issued upon the Defendant's application and to issue a new title in the names of the Claimant and Defendant as tenants-in-common; or
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(iv) Direct the Registrar of Titles to treat the Application by George Paragh as an application on behalf of the Estate of Ruby Paragh late of Rosewell District in the parish of Clarendon and to issue Title in the names of George B. Paragh, Everald Paragh, Ronald Paragh, John C. Paragh, Blossom P. Hamilton and Lisa Paragh as tenants-in-common,
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(v) Further or other relief as may be just; and
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(vi) Costs.
On the 18th of July 2017, an application was filed by the Claimant against the Defendant seeking an injunction to restrain the Defendant or anyone on his behalf from selling, leasing or mortgaging the land. The application also sought an injunction against the Registrar of Titles from registering any change in proprietorship of the said land.
An undertaking in damages was given by the Claimant as well as by his niece who
resides on the property and on the 30th day of January 2018 the injunction was granted by Justice J. Pusey. Contained in the same application was a request for Anika Paragh to be added as a Defendant but it appears that no ruling was made on this part of the application.
On the 22nd of January 2018, Justice D. Batts made an order for Lisa Paragh to see and take copies of the Defendant's application for title application no. A2011344 and the declarations of the Defendant are attached to the list of documents which fall for the Court's consideration in the matter herein.
The Defendant has filed a defence and in same he asserts the fact that contrary to the contention of the Claimant he was in fact residing at the property and doing actions consistent with ownership including the payment of property taxes for the past fifteen years. He also averred that the issue of having the land registered had previously been discussed with his siblings, the majority of whom resided overseas. He states that they showed no interest so he went ahead with the knowledge and approval of Blossom Hamilton and had this done at his own expense. He also questions the standing of the Claimant to bring this claim in light of the fact that fact that he had no grant of administration in respect of the estate of Ruby Paragh.
In written submissions filed on behalf of the Applicant, it is noted that Ms. Paragh has applied to the Court for permission to be substituted and to that end on the 24th of October 2017 she filed the necessary consent jointly with the Claimant who cannot continue as a result of illness. It is also submitted that as a result of having obtained the grant of administration the Applicant is in fact the proper Claimant to the proceedings.
Under the heading allegations of fraud against the Defendant and the Registrar, Counsel for the Applicant submits that the Court has jurisdiction to amend statements of case at any time up to trial in order to bring forward and determine the real questions and issues in controversy between the parties. To this end Counsel referred to and relied on Cropper v Smith (1884) 26 Ch. D 700. Reference has also been made in this regard to the decision of Gloria Moo Young and Eric Moo Young v Geoffrey Chong, Dorothy Chong and Family Food Limited (in Liquidation) SCCA 117 of 1999 on late amendments.
It was also submitted that the amendment that is being sought is in order to plead fraud based on the information gleaned from the Defendant's application for title. It is said that the Claimant was unable to do so at the time the original claim was filed as that information was obtained much later. Additionally, it would mean that the Fixed Date Claim Form would have to be converted to a Claim Form given that there are substantial disputes as to fact including fraud and to this end reliance is placed on Manfas Hay v Clover Thompson and Jonathon Prendergast [2018] JMSC Civ 26 a decision by Master N. Hart-Hines.
In respect of the application to add Anika Paragh, Counsel submits that this application is necessary as at the time that the Fixed Date Claim Form was filed the Title had not yet been issued and as such the Claimant was not aware that Ms. Paragh was a joint proprietor. Counsel submits that it is necessary to have her added to the Claim to ensure that all relevant parties are before the Court.
In the course of her submissions, Counsel for the Claimant has referred to and relied on paragraph 9 of the Affidavit of the Applicant in which she stated that the property in question is occupied by her children and not the Defendant as he asserts. She also highlights the fact that he has sought an order for recovery of possession against them.
On the point of the application to add the Registrar of Titles as a Defendant, it is submitted that this is necessary as the Registrar is the ‘person’ against whom the fraud has been committed along with the estate of Ruby Paragh.
In his submissions in response, Counsel for the Defendant has highlighted that while the submissions made on behalf of the Applicant ask for the Fixed Date Claim Form to be converted to a Claim Form, there is no such order sought in the Notice of Application for Court Orders which was filed on the 5 th of July 2018. The same is true it is submitted in respect of the addition of the Registrar of Titles as a Defendant as no request is made for same in the notice as filed.
In continuing his response, Mr. Campbell took issue with the affidavit in support of the court orders sought. He submitted that parts 30.1 and 30.2 of the CPR require that an application must be supported by an affidavit and these particular rules speak to what should be contained in same. He submitted that Rule 30.4(2) makes it clear that the jurat must follow the information being sworn to and should not appear on a separate page. In respect of the affidavit of Ms. Paragh, it is submitted that this affidavit does not comply with the rules. He pointed out that the jurat should state when, where and before whom the affidavit was sworn and that latter information appears on a separate page and as such the affidavit is irregular.
In respect of the consent document Counsel also takes issue with whether it complies with 19.3(4) of the rules as not only is it done...
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