West (David), Christopher West, Douglas West, Marshaleen Forsyth (nee Henriques, Jerome Smith and Richard Smith v James Wylie, Lorna Wylie and Richard Smith

JurisdictionJamaica
Judge Sinclair-Haynes J
Judgment Date12 October 2007
Judgment citation (vLex)[2007] 10 JJC 1901
CourtSupreme Court (Jamaica)
Date12 October 2007
Docket NumberCLAIM NO. HCV 2762/2007
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. HCV 2762/2007
BETWEEN
DAVID WEST
1 st CLAIMANT
CHRISTOPHER WEST
2 nd CLAIMANT
DOUGLAS WEST
3 rd CLAIMANT
MARSHALEEN FORSYTHE (NEE HENRIQUES)
4 th CLAIMANT
JEROME SMITH
5 th CLAIMANT
RICHARD SMITH
6 th CLAIMANT
AND
JAMES WYLIE
1 st DEFENDANT
LORNA WYLIE
2 nd DEFENDANT
RICHARD SMITH
3 rd DEFENDANT

CIVIL PROCEDURE - Certificate of truth - Signing - Procedural irreglarity

Sinclair-Haynes J
1

On the 11 th day of July 2007, an application was made by way of Fixed Date Claim Form (FDCF) in which the claimants sought, inter alia , injunctive relief and recovery of possession of property against the defendants. The certificate of truth was signed by Miss Sheila Smith as the agent of the claimants.

2

Mr. Owen Crosbie, attorney-at-law for the defendants, raised an objection in limine . He submitted that the Fixed Date Claim Form (FDCF) should be struck out for the following reasons:

  • 1) It breached rule 22.1 of the Civil Procedure Rules ( CPR) 2002.

  • 2) It breached the law of agency with special reference to section 149 of the Registration of Titles Act which requires the grant of a power of attorney in the circumstances.

3

An adjournment was granted to Mr. Seyon Hanson, the attorney-at-law for the claimants. On the 3 rd day of October 2007, the claimants filed an amended Fixed Date Claim Form in which the certificate of truth was signed by Mr. Hanson.

Submissions by Mr. Owen Crosbie
4

Mr. Owen Crosbie submits that the claim form is fundamentally flawed. He submits that compliance with rule 22.1 of the CPR is one of the conditions precedent to the commencement of proceedings, the other being the filing of the FDCF. A fundamental breach, he submits, cannot be cured. Consequently, the claim is void. He submits that the claim may also be struck out as an abuse of the process of the courts because the claim was filed contrary to the law by persons without lawful authority. He relied on( Nixon v. Loundes ), [1909] 2Ir.R.1.

Submissions by Mr. Allan Wood
5

Mr. Allan Wood submits that rule 26.9 permits the matter to be rectified. The rule, he submits, expressly provides that a failure to comply with a rule does not invalidate the proceedings unless the court so orders. Further, he submits, rule 26.9 allows the matter to be regularized without an application. Non-compliance with procedural rules will not betreated as nullifying proceedings. The court has discretion to have the matter rectified, where no prejudice is caused to the other party. He relies on Halsbury's Laws of England , (vol. 37 para. 36). It is his submission that rule 8.1 (4) (b)...

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