Stewart v Rose
| Jurisdiction | Jamaica |
| Judge | Bingham, J.A.,Walker, J.A. |
| Judgment Date | 17 June 1997 |
| Neutral Citation | JM 1997 CA 25 |
| Docket Number | No. 15 of 1997; No. 477 of 1989 |
| Court | Court of Appeal (Jamaica) |
| Date | 17 June 1997 |
High Court/Court of Appeal
Downer, J.A.; Bingham, J.A.; Walker, J.A. (Ag.)
No. 15 of 1997; No. 477 of 1989
Anthony Pearson instructed by playfair.
Junor Pearson & Co for the applicant.
Nancy Anderson instructed by Dorrell Wilcott for respondent.
Jurisdiction - Court of Appeal — Application for leave to file an appeal out of time and grant a stay of execution in proceedings emanating from the Resident Magistrate's court — Respondent's counsel submitted that the court was incompetent to grant the prayers sought — Granted stay — Section 12 of the Judicature (Appellate Jurisdiction) Act made it clear that the court had always been empowered to grant extension of time as prayed — Section 4 of the Judicature (Supreme Court) Act and section 9 of the Judicature (Appellant Jurisdiction) Act by necessary implication and section 576 of the old Civil Procedure Code expressly accorded the court the power to extend time — Applicant was given 14 days to complete the formalities required by law so as to perfect his appeal.
Miss Nancy Anderson has raised an important jurisdictional point as to the powers of this court to grant leave to file an appeal out of time and grant a stay of execution in proceedings emanating from the resident magistrate's court in Trelawny. It arose because Mr. Anthony Pearson moved this court in respect of two specific prayers. Here is how it was stated in his Motion:
“… for an Order that:
1. Leave be granted to file appeal out of time.
2. There be a Stay of Execution pending out come of the appeal.
3. Such further and other relief as this court may deem fit.”
Miss Anderson submitted that this court was incompetent to grant the prayers while Mr. Pearson held we could. The affidavit by Mr. Pearson in support of the motion disclosed how the matter arose in the court below namely:
“4. That on or about the 9th November, 1989, Glennis Rose lodged a Plaint against the defendant Charles Stewart in the Resident Magistrate's Court for the Parish of Trelawny under Plaint #477/$9.
5. That the Particulars of Claim was in the following terms
“(1) The plaintiff's claim is to recover possession of One Room situated at 89 Falmouth Street, Trelawny, which the defendant occupies as a Tenant at Will.
(2) The defendant's ‘agency’ expired on the death of John Henry Campbell in August 1982.
(3) This action is being brought by the plaintiff in his capacity as Executor of the Estate of John Henry Campbell.”
It is well known that Resident Magistrates have heavy hearing schedules. Even so the hearings in this case seem somewhat prolonged. Here is the relevant account:
“9. That the matter first came before Her Honour Ms. Marlene Harrison Resident Magistrate for the Parish of Trelawny on the 14th March, 1995, and a trial commenced on the 12th September, 1995.
10. That the matter was part heard on the 12th September, 1995, 10th October, 1995, 12th December, 1995 and 9th January, 1996.”
Then judgment was reserved and eventually delivered on 7th January 1997. That information emerged thus:
“11. That judgment was reserved to the 12th March, 1996, and subsequently to the 14th May, 1996, 9th July, 1996, 10th December, 1996, and 7th January, 1997.
12. That on the 7th January, 1997, the judgment delivered was in the following terms-
‘Judgment for the plaintiff. Defendant to Quit and Deliver up possession on or before 30th April, 1997. Defendant further ordered to cease collecting rent from tenants at the premises with immediate effect. To cease to perform any acts in relation to premises which are not authorized by plaintiff. Formal Order to be drawn. Costs to be agreed or taxed.’”
These brief reasons do not demonstrate that the claims of the defence were considered. Nor do these brief reasons indicate if there was any evidence led by the defence and, if there was, the manner of its assessment. The defence as adumbrated in the affidavit supporting the motion ran thus:
“(1) The defendant denies that he is or was the plaintiff's agent in respect of premises #9 Falmouth Street, Trelawny.
(2) The defendant denies that he was the agent of the plaintiff's precursor in title John Henry Campbell at the time of Campbell's death in August, 1982.
(3) That defendant asserts that at the date of his death John Henry Campbell through whom the plaintiff claims as the executor of his Estate was an undischarged bankrupt incapable of holding property in his own name.
(4) The defendant asserts that prior to his death and while the land was unregistered land John Henry Campbell disposed of all his interest in the land to the defendant.
(5) The defendant asserts that he has been in quiet open undisturbed possession of the land for more than twelve years prior to the commencement of the claim and as a consequence the plaintiff's claim is barred pursuant to the provisions of the Limitations of Actions Act.
(6) The defendant asserts that both John Henry Campbell and his wife before him Ethel Maud Campbell recognized the defendant's right to undisturbed possession of the land, and gave instructions that he be not molested in his ownership, and occupation.”
Counsel admitted that he was not without fault when it came to instituting appeal proceedings. His account ran thus:
“14. That I prepared Notice of Appeal on the 20th January, 1997, but inadvertently it was not lodged with the Clerk of Courts for the Parish of Trelawny until the 30th April, 1997 when an application for a Stay of Execution was filed.
15. That the relevant fees for the lodging of the appeal was paid, and the Application for a Stay of Execution came on for hearing on the 6th May, 1997.
16. That Her Honour Ms Marlene Harrison made the following Order -
‘Application for Stay of Execution refused, Costs to the plaintiff.’
17. That I have been advised by the defendant, and do verily believe that on the 6th May, 1997, a Formal Order confirming the judgment of the 7th January, 1997 was served on him.”
Then the circumstances of the applicant were stated thus:
“18. That the defendant is a blind man aged upwards of ninety (90), and has been in occupation of the premises since 1962.
19. That the defendant is anxious to pursue his appeal, and is prepared to pursue it with diligence as a matter of expedition.”
As to the specific circumstances of the relief sought at this stage. They are as follows:
“20. That the inadvertence in not filing his Notice of Appeal on time rests squarely with his attorneys.
21. That the appeal gives rise to some important points and if the defendant were to be evicted under a Warrant of Possession issued to the plaintiff his right in pursuing the appeal would thereby be lost.
22. That having regard to the magistrate's refusal to grant a Stay of Execution, the defendant prays that this Honourable Court will grant him Leave to Appeal out of time as well as a Stay of Execution of the judgment in order that his appeal might be pursued.”
The instructing attorney-at-law for the respondent Glennis Rose, Mr. Wilcott, in response stated:
“3. That I am told by my client, Glennis Rose, and verily believe that up to today, May 14, 1997, he has not been served with the Notice of appeal referred to in paragraph 14 of the Affidavit deponed to by Mr. Anthony Pearson in support of this Motion.
4. That I have not been served with the said Notice of Appeal as required by Section 256 of the Judicature (Resident Magistrates) Act.
The gist of opposition is contained in paragraph 5 which reads:
“5. That at the hearing of this Motion I will rely on this Honourable court's decision in EDWARDS v. GAREL, RMCA, Motion No. 6/94, May 24, 1994 (unreported) to submit that this Honourable Court has no jurisdiction to (a) grant a Stay of Execution, nor (b) grant leave to file an appeal out of time.”
In considering this issue, it is important to bear in mind that this court is a superior court of record by virtue of section 103 (5) of the Constitution. Further, by legislative references in section 9 and 10 of the Judicature (Appellate Jurisdiction) Act it acquired the historic inherent, common law, equity and procedural powers of the former Appeal Court which was part of the Supreme Court prior to 1962. Further, the Supreme Court prior to 1962 and continuing to this day, has inherited all the powers of the courts which were consolidated to form one Supreme Court. See section 4 of the Judicature (Supreme Court) Act. This section reads:
“4. On the commencement of this Act, the several courts of this island hereinafter mentioned, that is to say -
The Supreme Court of Judicature,
The High Court of Chancery,
The Incumbered Estates' Court,
The Court of Ordinary,
The Court for Divorce and Matrimonial Causes,
The Chief Court of Bankruptcy, and
The Circuit Courts,
shall be consolidated together, and shall constitute one Supreme Court of Judicature in Jamaica, under the name of “the Supreme Court of Judicature of Jamaica', hereinafter called “the Supreme Court.”
Section 251 of the Judicature (Resident Magistrate's) Act (the Act) pertaining to appeals reads:
“251. Subject to the provisions of the following sections, an appeal shall lie from the judgment, decree, or order of a court in all civil proceedings, upon any point of law, or upon the admission or rejection of evidence, or upon the question of the judgment, decree, or order being founded upon legal evidence or legal presumption, or upon the question of the insufficiency of the facts found to support the judgment, decree, or order; and also upon any ground upon which an appeal may now be had to the Court of Appeal from the verdict of a jury, or from the judgment of a judge of the Supreme Court sitting without a jury.”
It should also be noted that...
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