Rosetta Scale v Autley Dennis Bahadoosingh

• Jurisdiction: Jamaica
• Judge: Wiltshire J.
• Judgment Date: 13 December 2019
• Docket Number: CLAIM NO. 2016 HCV03442
• Court: Supreme Court (Jamaica)
• Date: 13 December 2019

[2019] JMSC Civ 241

In the Supreme Court of Judicature of Jamaica

CLAIM NO. 2016 HCV03442

Between

Rosetta Scale

Claimant

and

Autley Dennis Bahadoosingh Otherwise Called Dennis Autley Bahadoosingh

Defendant

IN CHAMBERS

Miss Tavia Dunn and Miss Deborah Dowding instructed by Miss Stephanie Gritton for the Claimant.

Mr. Canute Brown instructed by Brown, Godfrey and Morgan for the Defendant

Property (Rights of Spouses) Act 2004 — Parties names on title as tenant-in- common- Amendment to Fixed Date Claim Form- Interest in property-Equity

Wiltshire J.

1 By Fixed Date Claim Form the Claimant has sought a declaration that she and the Defendant are each entitled to fifty percent share (50%) in property located at Lot 77 Woodlawn in the parish of Manchester, registered at Volume 1270 Folio 118 of the Register Book of Titles (hereafter referred to as the Woodlawn property). The claimant sought this declaration on the basis that she was the defendant's spouse and pursuant to sections 6,11,13,14,20,21and 23 of the Property (Rights of Spouses Act).

Claimant's Case

2 The claimant stated that she was the ex-spouse of the defendant. They began living together as man and wife in 1978 and their union produced a child in September, 1988. She said that in November 1993 the Defendant alone purchased the Woodlawn property through the National Housing Trust (NHT) and they moved into same in 1993. They both commenced improvements to the property in 1994 and in 1999 the duplicate certificate of title for same was issued in both their names as tenants-in-common. She asserted that the property was intended for both of them. The parties lived together at the property until 2007.

Defendant's case

3 The defendant has responded that he did acquire the Woodlawn property in 1993, and he and the claimant, with whom he shared a common law relationship, moved in immediately. He asserted that he alone carried out improvements to the property and paid the property taxes. He agreed under cross examination that prior to 1993, they had lived together and that through their joint efforts improvements were done on the property. The defendant has not stated the percentage interest that he believes the claimant should receive. It can however be implied from his evidence that he doesn't believe that she is entitled to fifty percent (50%). It was in response to questions posed by the court, that the defendant revealed that he was already married when he commenced cohabiting with the claimant and although he had filed for divorce, he was not sure if same had been granted.

Submissions on the amendment to the claim

4 Searches conducted at the Registry confirmed that the defendant had filed a Petition for divorce but no decree absolute was found. As a consequence, Counsel for the claimant conceded that in light of the defendant's status, PROSA could not apply. After the close of the defendant's case, Counsel for the claimant applied for an amendment to the claim for the court to apply equitable principles.

5 Counsel submitted that the declaration being sought was not subject to PROSA and an amendment at this stage before judgment would not be prejudicial to the Defendant as he sought to rely on equitable principles in his submissions to the court. Reliance was placed on the judgment of Fraser J, in Forbes v Baker & Ors. who considered the issue of prejudice as a critical determining factor.

6 The learned judge also considered the following at paragraph 46 of the judgment:

Counsel also relied on the ruling of the Court of Appeal in Topaz Jewellers & Anor v National Commercial Bank Limited [2011] JMCA Civ. 20 where on the issue of the amendment of a statement of case, the court considered the overriding objective as well as Part 20 of the Civil Procedure Code.

• (i) Whether the application was made in good faith;

• (ii) Whether allowing the amendment would not affect the issues for determination before the court; and

• (iii) Whether the amendments would not yield to the claimant an unexpected advantage nor would they in any way affect the defence being advanced.

7 It was further submitted that the application to amend was made in good faith as it only followed the discovery that the defendant was a married man. Counsel argued that allowing the amendment would not affect the issues for determination as, but for the recitals, the declaration sought does not ask the court to find that the Woodlawn property was the family home, but that the Claimant has an equal share which can fall for determination within the scope of equitable remedies. For those same reasons Counsel also submitted that the amendments would not yield an unexpected advantage to the Claimant or affect the defence being advanced.

8 It was finally submitted that the court was empowered to grant remedies that a party may appear to be entitled to. Counsel referred to section 48(g) of the Judicature (Supreme Court) Act which states;

“The Supreme Court in the exercise of the jurisdiction vested in it by this Act in every cause or matter pending before it shall grant either absolutely or on such reasonable terms and conditions as to it seems just, all such remedies as any of the parties thereto appear to be entitled to in respect of any legal or equitable claim properly brought forward by them respectively in such cause or matter, so that as far as possible, all matters so in controversy between the said parties respectively may be completely and finally determined and multiplicity of proceedings avoided.”

9 Counsel for the Defendant referred to the absence of an application to amend the claim but took the view that the absence of a formal application had never been a barrier to the court resolving disputes consistent with the overriding objective of doing justice between the parties. It is therefore evident to this court that there is no resistance to the court permitting the amendment to the claim. In any...