Sarah Brown v Alfred Chambers

• Jurisdiction: Jamaica
• Judge: HARRIS JA
• Judgment Date: 29 July 2011
• Neutral Citation: JM 2011 CA 77
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CIVIL APPEAL NO 49/2009 APPLICATION NO 68/2011
• Date: 29 July 2011

[2011] JMCA App 16

JAMAICA

IN THE COURT OF APPEAL

BEFORE:

THE HON MRS JUSTICE HARRIS JA

THE HON MR JUSTICE MORRISON JA

THE HON MISS JUSTICE PHILLIPS JA

SUPREME COURT CIVIL APPEAL NO 49/2009

APPLICATION NO 68/2011

BETWEEN

SARAH BROWN

APPLICANT

AND

ALFRED CHAMBERS

RESPONDENT

Lawrence Haynes instructed by Miss Saverna Chambers for the applicant

Miss Audré Reynolds instructed by Bailey Terrelonge Allen for the respondent

REAL PROPERTY - Recovery of possession - Application to extend time to quit and deliver up possession - Judicature (Appellate Jurisdiction) Act, s. 10 - Whether the court is empowered to extend after a final judgment order is enforced

HARRIS JA

1 On 20 December 2010 this court made the following order:

‘Appeal dismissed

• a) The respondent Mrs. Sarah Brown shall quit and deliver up possession of all that parcel of land known as number 22 Cedar Valley Road, Kingston 6 in the parish of St. Andrew to the appellant Mr. Alfred Chambers on or before the 31 ^st March 2011;

• b) Judgment for the respondent in the sum $3,500.00 together with interest thereon as follows:

  • i. At the rate of 6% per annum from 9 April 1984 to 30 June 1999;

  • ii At the rate of 12% per annum from 1 July 1999 to 22 June 2006; and

  • iii At the rate of 6% per annum from 23 June 2006 to date;

• c) Costs to the respondent both here and below, to be taxed if not agreed.’

2 On 30 March 2011, Mrs Brown made an application for the time within which to quit and deliver up possession of the property to be extended to four months. In paragraphs 7 to 14 of her affidavit in support of her application she states:

• ‘7. That I have been living at this address since 1984 with my family. Presently, there are 11 family members living with me including some of my children and grandchildren.

• 8. I have been seeking alternate accommodation so as to honour the court order however I have been experiencing hardship in finding a suitable and affordable place to live.

• 9. That I am now aged 72 years old and I am unemployed.

• 10. That all the money I have worked and saved through the years have gone into this property.

• 11. That I was awarded cost in this court and the court below and I have been advised by my Attorney-At-Law and verily believe that these costs are expected to be substantial and that she has made an application for Taxation of the cost.

• 12. That I was also awarded Judgment in the sum of $3,500.00 with interest and that I have not yet received this money.

• 13. In light of the fact that I have to leave my house behind I am relying on the cost awarded by the court to assist me in finding suitable accommodation.

• 14. That in the circumstances I am requesting an extension of four (4) months within which to vacate the property. I verily believe that this is not unreasonable as at paragraph [45] of the Judgment His Lordship Mr. Justice Brooks stated that –“I also find that the learned trial Judge was correct in finding that damages and not specific performance, was the appropriate remedy to which Mrs. Brown was entitled. In terms of a time for delivery up of possession, I do not consider six (6) months to be excessive”.’

On 24 June, 2011 we refused the application and made no order as to costs.

3 Mr Haynes submitted that on a natural reading of section 10 of the Judicature (Appellate Jurisdiction) Act, it appears to be wide enough in scope to embrace the application, as the application sought, does not require the alteration or interference with the substantive judgment. On a proper construction of the section, he argued, there is nothing on the face of it, which delimits the power of the court to extend time. The application, he contended, falls within the purview of an enforcement as an application for extension of time and in the circumstances of this case it is incidental to the enforcement of the judgment. The cases of Gamser v The Nominal Defendant 136 C.L.R 145 at 147and Bailey v Marinoff 125 C.L.R. were cited by Mr Haynes in support of his submissions.

4 Miss Reynolds argued that the power to amend, enforce and execute as stated in the section is with reference to an order of the Supreme Court and in relation to application, this court only has the power to amend these orders. This court, however, could amend where the words ‘liberty to apply’ are expressed in an order or judgment, or in circumstances where a material change in circumstances occurs, she argued.

5 The fundamental issue in this application is whether the court is empowered to extend time after a final judgment or order has been made. It is common ground that the pronouncement of the court on 20 December is a final order. As a general rule, once a judgment or order is perfected it brings litigation to an end. It follows therefore that a court cannot revisit an order which it has previously made. The extent of the court's jurisdiction does not go beyond that which is pronounced in its final order. Despite this, certain exceptional circumstances may arise which may cause the court to revisit a prior order. In the Australian case of Bailey v Marinoff, Barwick CJ, speaking to the foregoing principles, at page 530 said:

‘Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed. In my opinion, none of the decided cases lend support to the view that the Supreme Court in this case had any inherent power or jurisdiction to make the order it did make, its earlier order dismissing the appeal having been perfected by the processes of the Court.’

6 At page 539 Gibbs J said:

‘It is a well-settled rule that once an order of a court has been passed and entered or otherwise perfected in a form which correctly expresses the intention with which it was made the court has no jurisdiction to alter it … The rule rests on the obvious principle that it is desirable that there be an end to litigation and on the view that it would be mischievous if there were jurisdiction to rehear a matter decided after a full hearing. However, the rule is not inflexible and there are a number of exceptions to it in addition to those that depend on statutory provisions such as the slip rule found in most rules of court.’

In Gamser v The Nominal Defendant, in addressing the principle, Barwick C. J. said:

‘I regard it as unfortunate that the inherent power of an appellate court does not extend to varying its own orders when the interests of justice require it. It is of course a most important principle, based on sound grounds of policy, that there should be finality in litigation. However, exceptional cases may arise in which it clearly appears from further evidence that has become available that a judgment which has been given rested on assumptions that were false and that it would be manifestly unjust if the judgment were allowed to stand. In my opinion it is desirable that the Court of Appeal should have a discretion – however guardedly it might have to be...