Thomas (Merlene) v Michael Spencer, Trevor Spencer, Hope Spencer, Dave Spencer, Owen Spencer, Ludlow Spencer, Milda Spencer, William Spencer, Thelma Spencer Grant and Nelsie Stone

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: BROOKS, J.A. (Ag)
• Judgment Date: 11 June 2010
• Neutral Citation: JM 2010 CA 86
• Judgment citation (vLex): [2010] 6 JJC 1102
• Date: 11 June 2010

[2010] JMCA App 9

IN THE COURT OF APPEAL

BEFORE:

THE HON. MRS JUSTICE HARRIS, J.A THE HON. MR JUSTICE MORRISON, J.A THE HON. MR JUSTICE BROOKS, J.A. (Ag)

BETWEEN

MERLENE THOMAS

APPLICANT

AND

MICHAEL SPENCER

1 ^ST RESPONDENT

AND

TREVOR SPENCER

2 ^ND RESPONDENT

AND

HOPE SPENCER

3 ^RD RESPONDENT

AND

DAVE SPENCER

4 ^TH RESPONDENT

AND

OWEN SPENCER

5 ^TH RESPONDENT

AND

LUDLOW SPENCER

6 ^TH RESPONDENT

AND

MILDA SPENCER

7 ^TH RESPONDENT

AND

WILLIAM SPENCER

8 ^TH RESPONDENT

AND

THELMA SPENCER GRANT

9 ^TH RESPONDENT

AND

NELSIE STONE

10 ^TH RESPONDENT

Dorrell Wilcott instructed by Dorrell Wilcott & Co. for the applicant

Terrence Ballantyne Instructed by Bonner & Associates for the respondents

EVIDENCE - Fresh evidence - Leave to adduce - Fraud - Whether real likelihood of success - Judicature (Appellate Jurisdiction) Act

BROOKS, J.A. (Ag)

1 [1] Miss Merlene Thomas was unsuccessful in her claim filed against the respondents in the Supreme Court of Judicature. Anderson J handed down judgment against her on 11 June 2007. Not satisfied with the decision, Miss Thomas has filed an application for leave to appeal out of time. The application was originally filed in 2009 but was re-listed after the written reasons for the decision became available on 31 March 2010. Miss Thomas also seeks leave to adduce fresh evidence as part of her appeal.

2 [2] The subject matter of the dispute is a parcel of registered land situated at Foga Road, May Pen, in the parish of Clarendon (the land). The land is comprised in the certificate of title registered at Volume 1029 Folio 552 of the Register Book of Titles.

3 Miss Thomas' case

4 [3] In the affidavits filed in support of the applications, Miss Thomas alleges that her father Mr Alexander Thomas purchased the land from Mr R. O. Terrier in or about January 1946. She says that shortly thereafter, her father subdivided the land and "gave" two parcels therefrom to one of his daughters Eunice Peart (nee Thomas) and Ms Peart's then paramour; Mr Clifford Spencer. Although that relationship ended and Ms Peart emigrated from the island, Mr Spencer dealt with the two parcels as if they were his own. Mr Thomas dealt with the remainder of the land as he wished. On his death, in 1963, Miss Thomas assumed ownership and has dealt with her father's portion of the land as she pleased, exercising sole dominion over it.

5 [4] It seems that it eventually came to her notice that the land was comprised in a registered title and that certain transactions had taken place in respect of the title which jeopardized her status as the title-holder. An examination of the certificate of title reveals that in 1966 Mr Terrier transferred the fee simple in the land to Messrs Clifford Spencer and Alexander Thomas as joint tenants. Mr Clifford Spencer, having survived Mr Thomas, died in or about 1977. Mr Thomas' death was noted on the title on 25 January 1996 but the date of death was said to have been 29 October 1959. Also on 25 January 1996, one of Mr Clifford Spencer's sons, Michael, one of the ten respondents herein, was registered on the certificate of title as the administrator of Mr Clifford Spencer's estate. Also on that date, an instrument of transfer was registered, whereby, Michael, as administrator, transferred the fee simple in the land to his mother, his brothers and sisters and himself as tenants-in-common in equal shares. They are the respondents herein.

6 [5] Miss Thomas asserts that all those transactions in respect of the registered title are fraudulent. That prompted her, along with Ms Eunice Peart and Mr Leonard Thomas, to file and prosecute the claim against the respondents, who are all the named registered proprietors.

7 [6] The critical aspects of her complaint are firstly, that the registration of Clifford Spencer on the certificate of title as joint tenant with her father, as registered proprietors for the land, was secured by fraud. Secondly, that a fraudulent death certificate was used to register her father's death on the certificate of title, leaving Mr Clifford Spencer as the sole proprietor of the fee simple in the land.

8 The previous action

9 [7] Although the evidence is based on the heading of an affidavit which has been placed before us, it seems that eight of the ten registered proprietors had sued Miss Thomas and a Derrick Thomas in or about 1996. This was to prevent Miss Thomas and Derrick from interfering with certain crops on the land. The heading on the affidavit also asserts that the land is registered at Volume 1029 Folio 552 of the Register Book of Titles. The result of that claim has not been communicated to us. It will be again mentioned, hereafter.

10 The trial in the present claim

11 [8] At the conclusion of the trial of Miss Thomas' claim, Anderson J found that the claimants had failed to prove their allegations of fraud and he gave judgment for the defendants (the respondents herein). Although there were three claimants before Anderson J, only Miss Thomas has made the instant applications.

12 The present applications

13 [9] In order to succeed in her present applications Miss Thomas has to clear two hurdles. She must demonstrate, firstly, that the evidence which she wishes to have adduced, satisfies the criteria to be received as fresh evidence and secondly, that her appeal has a real likelihood of success.

14 The Fresh Evidence

15 [10] Section 28 of the Judicature (Appellate Jurisdiction) Act authorizes this court, in determining an appeal, to order the production of documents and the examination of witnesses which production or examination is necessary for the determination of the appeal. In addition, rule 2.15(2)(h) of the Court of Appeal Rules 2002 permits this court to "make any order or give any direction which is necessary to determine the real question in issue between the parties to the appeal". These provisions would seem to allow fresh evidence to be adduced.

16 [11] The fresh evidence may either be conclusive of the appeal or may cause the court to order a retrial of the matter. The bases for allowing the reception of fresh evidence were set out in Ladd v Marshall [1954] 3 All ER 745. In that case Lord Denning, at page 748 A?B, outlined them in the following passage:

"In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be...