Sommerville v Coke et Al
| Jurisdiction | Jamaica |
| Judge | Forte, J.A.,Downer, J.A.,Morgan, J.A. |
| Judgment Date | 18 December 1989 |
| Neutral Citation | JM 1989 CA 173 |
| Docket Number | Civil Appeal Nos. 73 and 80 of 1989 |
| Court | Court of Appeal (Jamaica) |
| Date | 18 December 1989 |
Court of Appeal
Forte, J.A.; Downer, J.A.; Morgan, J.A.
Civil Appeal Nos. 73 and 80 of 1989
R. Manderson-Jones for the defendant.
Gordon Robinson and David Henry instructed by Nunes, Scholefield DeLeon & Co for respondents.
Practice and procedure - Application to stay proceedings — Appellant entered into a written agreement with the respondents for the lease of premises — Lease provided for abatement of the rental in the event of damage to the premises by an Act of God — In 1988 Hurricane Gilbert caused extensive damage to the property — Respondents had not secured any payments in respect of rental for the period since the hurricane — Trial judge refused an application by the appellant to stay proceedings — Whether an appearance could be entered after judgment without leave of the Court — If so, whether it could be entered for the purpose of an application to stay proceedings under s.5 of the Arbitration Act — Finding of the Court that the provisions of s.5 of the Arbitration Act could not be applicable to the circumstances of the case, and could only have become applicable if the judgment was set aside — Appeal was dismissed.
Practice and procedure - Judgment — Setting aside — Appellant filed an application to set aside the judgment in default of appearance — Trial judge refused the application — Finding of the court that there were triable issues disclosed in the draft defence and affidavit of the appellant — Ordered that a conditional setting aside of the judgment be granted and the appellant pay 50% of the rental agreed in the lease into court within 14 days.
These are appeals from two orders made by learned judges in chambers which are as follows:
- An order made by Reckford, J., on 10th August, 1989 refusing a stay of proceedings, and 2. An order made by Langrin, J., on the 2nd October, 1989 refusing an application by the appellant to set aside a judgment against the appellant entered in default of appearance.
By consent of counsel for the parties, these appeals were heard together on the 7th and 8th day of November, 1989 on which date we reserved our decision. This we now deliver. To set the issues involved in the appeal in their proper prospective, some brief reference to the factual bases is necessary. The appellant on the 14th July, 1988 entered into a written agreement with the respondents for the lease of premises 21 Jacks Hill Road for a period of two years.
The lease provided for abatement of the rental in certain circumstances which will be detailed later in this judgment, in the event of damage to the premises by virtue of an Act of God. It provided also the method by which the amount of abatement would be determined. In September 1988, Hurricane Gilbert swept over the island of Jamaica, leaving behind extensive damage to properties, among them the house at 21 Jacks Hill Road. Notwithstanding this, up to the time that this appeal was heard no steps had been taken by either party to put in motion, the procedure provided for in the lease which would determine the amount by which the rent should be abated. Repairs were however done to the house, by the respondents g and it appears that all has been done except for some relatively minor repair. The respondents, not having secured any payments in respect of rental for the period since the hurricane, filed a specially indorsed writ of summons in the Supreme Court on the 27th April, 1989 claiming as follows:
“The plaintiffs' claim is against the defendant to recover the sum of Eighty One Thousand Seven Hundred and Seventy Five Dollars and Twenty Seven Cents ($81,775.27) due and owing by the defendant to the plaintiff under a Lease of Agreement dated the 14th day of July, 1988 for the Lease of premises 21 Jacks Hill Road, Kingston 6 in the parish of Saint Andrew by the defendant from the plaintiff and in particular being the amount due for rent, interest on overdue rent, water rates and telephone bills particulars of which are as follows;
“Six (6) months rent due for period 11th November, 1988 to 10th May, 1989 inclusive at $8,500.00 per month — $51,000.00
Interest on overdue rent at 12 1/2% per annum to the 10th of May, 1989 (rent due 11th November, 1988 to 11th March, 1989) — $1,328.13
Water rates — $7,331.00
Telephone Bills — $22,116.14
TOTAL — $81,775.27
And the plaintiff's claim further interest on the sum of Fifty One Thousand Dollars ($51,000.00) at the rate of 12 1/2% per annum from the 10th day of May, 1989 to the date of judgment or payment.”
On the 6th June, 1989 no appearance having been entered by the appellant, judgment was entered in default of appearance for the total sum claimed i.e. $81,775.27 and costs. On the 28th July, 1989, the appellant purported to enter appearance, and at the same time filed application by summons to stay the proceedings by virtue of section 5 of the Arbitration Act. On the 19th September, 1989 this application was heard and refused by Reckord, J. On the 15th September, 1989 the appellant filed application by summons, to set aside the judgment in default of appearance and on the 2nd October, 1989 the application was heard and refused by Langrin, J.
The appellant through his counsel filed and argued nine grounds of appeal all of which complained of the learned judges reasons for refusing the application. In coming to his conclusion, the learned judge as revealed in the note of his judgment, stated as follows:
“On the preliminary point that the filing of the appearance has come too late, rule that the appearance has come too late. I therefore uphold the preliminary point. All discretionary judgments must be judicially exercised and I rely on Section 61 of the Judicature (Civil Procedure Code) Law. Although I am quite aware that appearances have been entered after judgments in the cases of applications to set them aside, I do not think that the filing of an appearance after judgment in this case is a basis for granting an application for a stay under the Arbitration Act.”
The preliminary point referred to the fact that the appearance had been entered after judgment, and consequently it would not be valid for the purposes of staying the proceedings in pursuance of section 5 of the Arbitration Act. As the submissions unfolded before us, the issues to be decided, developed into the following:
- Can appearance be entered after judgment, without leave of the Court. 2. If so, can it be entered for the purpose of an application to stay proceedings under section 5 of the Arbitration Act. Question 1: In determining this question, reference to section 61 of the Judicature (Civil Procedure Code) Act is necessary.
It states:
“A defendant may appear at any time before judgment. If he appears at any time after the time limited by writ for appearance he shall not unless the Court or a judge shall otherwise order, be entitled to any further time for filing his defence, or for any other purpose, than if he had appeared according to the writ.”
There is no provision in the Civil Procedure Code which expressly permits the entering of appearance after judgment has been entered. It appears, then, (in my view) that an appearance entered after judgment would require, leave of the Court. In the case of Stern v. Friedmann [1953] 2 All E.R. 565 which was cited and relied on by counsel on both sides, Danckwerts, J., examined the practice in England where at that time R.S.C. Order 12, r.22 was in the exact terms of section 61 of the Civil Procedure Code. He referred to the Annual Practice 1953 page 141 and the note appearing under the rule:– “Appearance after judgment. In Chancery Division leave to enter appearance after judgment is obtained on special motion or summons Daniels Chancery Practice page 295.”
He refereed also to order, Seton's Decree and Orders page 23:– “In Queens Bench Division appearance tendered after judgment signed will be accepted if the defendant desires to enter it. Such appearance would stand in the event of the judgment being set aside.”
In another reference to Daniels Chancery Practice 8th Edition volume 1 page 295 it is stated in this way:
“After judgment an appearance cannot be entered by a defendant except by leave of the Court which may be granted, either with discharge of the judgment, leaving the defendant free to defend on payment of costs thrown away, or without setting aside the judgment on defendants submitting to be bound by it.”
Mr. Manderson-Jones, distinguishes these references from the present case and contends that whereas in the Chancery Division it is necessary to apply for leave to enter appearance after judgment, in the Queens Bench Division, no leave was necessary, and the appearance will stand until an order to strike it out has been made. He contended that there are no Divisions in Jamaica, but in any event, the present action was not in Chancery, and consequently no leave is required.
Mr. Gordon Robinson in reply, contended that even allowing for the distribution advanced by counsel for the appellant, appearance after judgment can only be entered for the purpose of setting aside the judgment, or the defendant's submission to it.
In my view, after final judgment has been entered, the filing of an appearance, though accepted by the registrar, cannot be of any effect unless and until the judgment is set aside, or in cases where the defendant enters appearance for the purpose of submitting to it. An example of this would be in a matrimonial case where the judgment orders that the matrimonial home be sold and the proceeds shared.
The party not appearing at the time of judgment may wish, subsequently to submit to the judgment but wish to make an application that he/she be allowed to purchase the home. The effect is therefore, that filing of an appearance per se cannot allow...
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