Shawn Marie Smith v Winston Pinnock

JurisdictionJamaica
JudgeBrooks JA,F Williams JA,Edwards JA
Judgment Date01 July 2016
Neutral CitationJM 2016 CA 69
Docket NumberCIVIL APPEAL NO 36/2014
CourtCourt of Appeal (Jamaica)
Date01 July 2016
Between:
Shawn Marie Smith
Appellant
and
Winston Pinnock
Respondent

[2016] JMCA Civ 37

Before:

The Hon Mr Justice Brooks JA

The Hon Mr Justice F Williams JA

The Hon Miss Justice Edwards JA (AG)

CIVIL APPEAL NO 36/2014

JAMAICA

IN THE COURT OF APPEAL

RESIDENT MAGISTRATES'

Tamara A Greene instructed by Cecil R July, attorney-at-law for the applicant

Don Foote for the respondent

Brooks JA
1

I have read in draft the reasons for judgment written by Edwards JA (Ag), I agree that the time in which to appeal ought to be extended and that the appeal ought to be allowed, given the learned Resident Magistrate's errors in exercising his discretion concerning the transfer of the plaint for trial with the claim filed in the Supreme Court.

F Williams JA
2

I too have read in draft the judgment of my sister Edwards JA (Ag) and agree with her reasoning and conclusion. I have nothing to add.

Edwards JA (AG)

3

This is an appeal against the decision of the learned Resident Magistrate for the parish of Manchester exercising jurisdiction in the parish of St Elizabeth, given on 5 September 2014. On that date after hearing an oral application by the appellant, he refused to make an order to transfer the counterclaim in Plaint No 192/2013 filed by the respondent in that court, to the Supreme Court where the respondent had also filed similar claims in relation to the said property against both the appellant and her husband.

A brief history of the matter
4

By Plaint No 163/2013, the respondent had filed an application in the Resident Magistrate's Court for an ex parte interim injunction with supporting affidavit against the husband of the appellant. He was granted an interim ex parte injunction by Her Honour Mrs Sonia Wint-Blair on 27 March 2013, restraining him, his servant and/or his agent or principal from entering upon the property situated at Lower Works Pen, Black River in the parish of St Elizabeth and from continuing to trespass on the said property. The interim ex parte injunction granted on 27 March 2013 expired on 10 April 2013 and an oral application was made for an interim injunction and/or an extension of the interim ex parte injunction granted on 27 March 2013. Both applications were struck out on 11 April 2013 and costs were awarded to the husband of the appellant.

5

On 9 April 2013 the appellant filed an action against the respondent in Plaint No 192/2013 to recover damages in the sum of $1,584,800.00 for trespass and also sought an injunction restraining the respondent from continuing to build a wooden structure on the said land and from continuing to trespass thereon. The appellant claimed to be the owner of the property which was registered at Volume 1466 Folio 410 of the Register Book of Titles. The respondent subsequently filed a special defence and counterclaim on the 16 April 2013. In his special defence he averred that the summons was barred by the statute of limitations and that the applicant's right and title were extinguished. He claimed in particular to be the owner of the property entitled to possession having been living there for 18 years unmolested. In his counterclaim he claimed the following:

  • (1) Damages of $250,000.00 for Trespass and/or Damage to Property.

  • (2) To be entitled as of right to possession of the said premises and the plaintiff's title (if any) is thereby barred/extinguished by adverse possession on the part of the Defendant.

  • (3) An injunction to restrain the plaintiff by himself, his servants or agents or otherwise however from continuing to trespass on my said property.

  • (4) Costs.

6

The particulars of damages claimed were that on 22 day of March 2013 the appellant and others unknown broke his fence, entered his property and uprooted and destroyed and damaged his cultivation, valuable logwood trees, fruit trees and vegetation.

7

On 25 April 2013 whilst Plaint No 192/2013 was still before the Resident Magistrate's Court the respondent filed a fixed date claim form bearing Claim No 2013 HCV 02562 in the Supreme Court against the appellant claiming:

  • a. An injunction

  • b. A declaration that he is entitled as of right to possession of the subject property.

  • c. That the appellant's title is barred by virtue of the Statue of Limitation.

  • d. Rectification.

8

Subsequent to filing the claim in the Supreme Court the respondent sought and obtained an interim ex parte injunction against the appellant before McIntosh J on 26 April 2013. On the 7 June 2013 Batts J granted an interlocutory injunction to the respondent. The matter was subsequently set for hearing on 18 October 2013.

9

On 1 July 2013 the respondent also filed a claim against the husband of the appellant in the Supreme Court in Claim No 2013 HCV 03855 for:

  • a. Damages for Trespass;

  • b. Injunction;

  • c. Declaration that the Claimant is entitled as of right to possession;

  • d. Cost and Attorney's cost.

On 3 July 2013 an interim ex parte injunction was granted by Daye J in that Claim.

10

On 18 October 2013, Claim No 2013 HCV 03855 was consolidated with Claim No 2013 HCV 02562 and on 9 April 2014 the consolidated claims were set for trial for eight days from 29 June to 8 July 2015. On 29 June 2015 both claims were adjourned until 11 July 2016 for trial for five days.

11

The result of all these actions is that proceedings involving a dispute over the same property were being taken in two different courts. On 16 July 2014 Plaint No 192/2013 filed in the Resident Magistrate's Court was withdrawn by the appellant's attorney-at-law in the court below in the absence of the respondent's attorney-at-law. Subsequently a notice of hearing dated 22 August 2014 was served on the appellant indicating that the respondent's counterclaim to Plaint No 192/2013 was set for trial on 5 September 2014.

12

According to the learned Resident Magistrate's account of what took place in his reasons for ruling, when the matter came on for hearing in the Resident Magistrate's Court on 5 September 2014 enquiries were made by the court from counsel for the appellant as to why he had withdrawn the claim. The court was advised that since the respondent had filed a new claim in the Supreme Court, there would have been no point in continuing the claim before the Resident Magistrate's Court. Counsel for the appellant also submitted that the counterclaim ought properly to be transferred to the Supreme Court to join the claim subsisting there as it was for the same cause of action.

13

The learned magistrate pointed out to counsel that although the claim had been withdrawn the counterclaim still subsisted. He also noted that the claim in the Supreme Court was for a continuing trespass and as long as it continued it gave rise to a new cause of action and was therefore a different claim from that brought in the Supreme Court. He was then also concerned with whether he had jurisdiction based on section 96 of the Judicature (Resident Magistrates) Act (the Act) as it seemed to him to be a dispute as to title, in which case there would have to be evidence of the annual value of the property. He made the relevant enquiries of counsel in that regard. Counsel for the appellant made no verbal response and counsel for the respondent took the view that section 96 did not arise as it only applied to recovery of possession claims and this was a claim in trespass. The learned magistrate eventually ruled that section 96 of the Act was not applicable.

14

He then went on to consider whether he should exercise his discretion to transfer under section 130 of the Act and determined ultimately that, he not only had jurisdiction but also that the Supreme Court was not the more suitable forum for the trial of the counterclaim. As a result he refused the appellant's application for the matter to be transferred to the Supreme Court and a trial date was set in the Resident Magistrate's Court for the counterclaim to be heard.

The late filing of the notice and grounds of appeal.
15

Following upon the learned Resident Magistrate's refusal to transfer the counterclaim to the Supreme Court the appellant filed a notice of appeal on 25 September 2014, and security for costs was paid on 29 September 2014. The appellant filed three grounds of appeal challenging the learned resident magistrate's decision viz:

  • ‘1. The parties in Plaint # 192/2013 are the same as the parties in Claim #2013HCV/02562, the cause of action in Plaint # 192/2013 and Claim#2013HCV/02562 is essentially the same and the subject matter in Plaint #192/2013 and Claim # 2013HCV/02562 is the same, the Resident Magistrate should therefore adjourn the hearing in Plaint # 192/2013 or transfer the plaint to the High Court, for it to be consolidated with Claim # 2013HCV/02562 rather than have two hearings between the parties in two different courts which could lead to different outcomes in both courts, thereby bringing the justice system into ridicule.

  • 2. The Supreme Court being a Court of Pleadings, is a Superior Court to the Resident Magistrate's Court, therefore Claim #2013HCV/02562 which is being heard in the Supreme Court should take precedent [sic] over Plaint #192/2013 which is being heard in the Resident Magistrate's Court.

  • 3. Litigation should be kept to a minimum, and as far as possible, the courts should strive to prevent multiplicity of court actions concerning the same subject matter between the same parties.’

16

The appeal came on for hearing in this court and the court began to hear submissions from counsel for the appellant. At the end of counsel for the appellant's submissions counsel for the respondent asked for time to respond. This was granted and the hearing of the appeal was adjourned to 15 April 2016. On that date, counsel for the respondent sought and obtained permission to raise a point, which he admitted he should have taken as a point ...

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