Wyllie et Al v West et Al
| Jurisdiction | Jamaica |
| Judge | Smith, J.A.,Harris, J.A.,Dukharan, J.A. |
| Judgment Date | 30 July 2009 |
| Neutral Citation | JM 2009 CA 85 |
| Docket Number | Civil Appeal No. 120 of 2007; Civil Appeal No. 8 of 2008 |
| Court | Court of Appeal (Jamaica) |
| Date | 30 July 2009 |
Court of Appeal
Smith, J.A.; Harris, J.A.; Dukharan, J.A.
Civil Appeal No. 120 of 2007; Civil Appeal No. 8 of 2008
Mr. Owen Crosbie instructed by Owen Crosbie and Company for the appellants.
Mr. Allan Wood and Mrs. Suzanne Risden-Foster instructed by Livingston, Alexander and Levy for the respondents.
Civil practice and procedure - Fixed date claim Form — Whether failure of the claimants or their attorney—at—law to sign the fixed date claim form invalidated it — Civil Procedure Rules, 2002, rule 22.1.
This procedural appeal concerns the validity of a Fixed Date Claim Form which the appellants claim was not signed by the claimants or their attorneys-at-law pursuant to Rule 22.1 of the Civil Procedure Rules, 2002 (CPR).
On July, 11, 2007 a Fixed Date Claim Form (FDCF) seeking injunctive relief and recovery of possession of property was filed in the Supreme Court on behalf of the respondents against the appellants.
An application for an interlocutory injunction went before Sinclair-Haynes, J. on September 27, 2007. Mr. Owen Crosbie, counsel for the appellants took a preliminary objection that the FDCF was a nullity in that it was not signed by the respondents or their attorneys-at-law in breach of Rule 22.1 of the CPR and section 149 of the Registration of Titles Act (RTA).
Mr. Seyon Hanson, counsel for the respondents applied for and obtained an adjournment to October 12, 2007. On October 3, 2007, an amended FDCF was filed by the respondents' attorneys-at-law. This amended FDCF was signed by the respondents' attorneys-at-law on their behalf.
On October 12, 2007 when the hearing resumed, Mr. Crosbie submitted that the original FDCF was fundamentally flawed. He argued that compliance with Rule 22.1 of the CPR and the proper filings of the FDCF were conditions precedent to the commencement of proceedings. A fundamental breach, he submitted, could not be cured, hence the claim is void. He further contended that the claim should be struck out as an abuse of the process of the Court because the claim was filed contrary to the law by persons without lawful authority.
Mr. Allan Wood for the respondents submitted that Rule 26.9 permits the matter to be rectified. By virtue of this rule, he contended, a failure to comply with a rule does not invalidate the proceedings unless the judge so orders. He further submitted that the Supreme Court Annual Practice of 2007 of the United Kingdom states that the failure to have a proper certificate of truth is an irregularity that can be cured. He also relied on the decision of the Caribbean Court of Justice in Gladston Watson v. Rosedale Fernandez (2007) CCJ 1 CAJ delivered on January 25, 2007.
The learned judge dismissed the preliminary objection, holding that the FDCF as originally filed was not a nullity and that the irregularity in the execution of the claim form was one which could be remedied within the Court's discretion. She held that the FDCF should stand as amended. Permission to appeal was granted.
On November 1, 2007, the appellants filed a notice of appeal. As a procedural appeal, it went before a single judge of the Court. The grounds of appeal were not set out clearly and concisely. Morrison, J.A. summarised the grounds thus:
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(i) The Fixed Date Claim Form not having been signed by the claimants in person or by their attorneys-at-law (Rules 3.6(3)(d) and 22.1), it could only properly have been signed on the claimants behalf by an agent as duly authorised pursuant to section 149 of the RTA.
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(ii) In the absence of any such signature, the Fixed Date Claim Form was void and ought accordingly to have been struck out.
The learned judge of appeal held that Sinclair-Haynes, J. was correct in treating non-compliance with Rule 22.1 as an irregularity which did not render the proceedings a nullity. He also agreed with the learned trial judge that section 149 of the RTA had no relevance to the commencement or continuation of proceedings in the Supreme Court but was applicable only to cases where the proprietor of land or other registrable interest was desirous of appointing an agent to transfer or otherwise deal with such land or interest. Accordingly, he dismissed the appeal with costs to the respondents.
The application before this Court is to discharge the order of Morrison, J.A. dismissing the appeal and to allow the appeal with costs to the appellants.
The appellants have again failed to set out clearly and concisely the grounds on which they seek to discharge the order of Morrison, J.A. It would seem that the grounds are essentially the same as before.
The first question for this Court is whether the original FDCF is a nullity or merely an irregularity. If it is a nullity, it cannot be amended or cured on the principle that ex nihilo nihil fit. On the other hand, if it is merely irregular, it may be cured.
Before this Court, Mr. Crosbie submitted that the FDCF was fundamentally flawed in that it was not signed in accordance with the relevant rules. It purports to be signed by “a stranger not knew to the law in the context of filing a suit.” This ‘stranger’ he said, was one Sheila Smith who purports to be acting as an agent of the claimants without the benefit of a Power of Attorney pursuant to section 149 of the RTA. This flaw, he contends, cannot be cured by an amendment.
Counsel for the appellants complained that the learned trial judge Sinclair-Haynes, J. after correctly setting out the appellants' preliminary objection, incorrectly identified the issue when she said at p.3 of her judgment:
“The pertinent question is, whether the signing of the certificate of truth by Miss Sheila Smith rendered the proceedings a nullity, as submitted by Mr. Crosbie or whether it is an irregularity which is curable.”
He stated that his preliminary objection had nothing to do with the certificate of truth. His objection, he said, concerns the improper signing of the FDCF, the filing of which marks the commencement of proceedings and gives the Court jurisdiction. He cited Vinos Ltd. v. Marks and Spencer [2002] 3 All E.R. 784.
Mr. Crosbie further contended that the respondents had no power to amend a FDCF without the permission of the Court. He emphasised that the amended FDCF is not an amendment but a new claim form and should be served afresh and the relevant rules complied with. In any event, he concluded, the FDCF was a nullity and could not be amended.
Mr. Alan Wood for the respondents in supporting the decision of Sinclair-Haynes, J. pointed to the fact that the FDCF was not filed by the claimants in person; it was filed by their attorneys-at-law. The form, he said, is also signed by the claimants' attorneys-at-law. The only irregularity, he conceded, in this matter concerns the certificate of truth which was signed by Sheila Smith and not by the claimants in person. This, he contended, does not render the FDCF a nullity. Such an irregularity, he submitted, is curable by amendment. In this regard he referred to Rule 26.9 and submitted that Sinclair-Haynes, J. properly exercised her discretion when she ordered that the FDCF should stand as amended and dismissed the preliminary objection. Among the authorities cited by Mr. Wood are Watson v. Fernandez (supra) and General Legal Council ex parte Basil Whitter v. Barrington Frankson P.C. Appeal No. 8 of 2008 delivered 27th July, 2006.
Mr. Wood further contended that even if the claimants had no right to amend the FDCF without leave of the Court, the learned trial judge did authorise it by allowing the amendment to stand.
The following rules are relevant:
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(a) Rule 8.1 which makes provisions as to how to start proceedings. It reads:
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8.1 (1) A claimant who wishes to start proceedings must file in the registry of the Court at the Supreme Court, King Street, Kingston (or at such other place as the Rules Committee may determine) the original and not less than one copy for each defendant (for sealing) of -
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(a) the claim form; and
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(b) unless either rule 8.2(1)(b) or 8.2(2) applies;
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(i) the particulars of claim; or
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(ii) where any rule or practice direction so requires or allows, an affidavit or other document, giving details of the claim required under this Part.
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(2) Proceedings are started when the claim form is filed.
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(3)…
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(4)… (This subsection states when Form 2 (FDCF) must be used).
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(b) Rule 3.6 (3) (d) which reads:
“Every document to be filed at the Court must -
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(d) (except in the case of an affidavit) be signed by the person filing it”.
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(c) Rule 22.1 which provides for the right to act in person. It states:
“22.1 Subject to the provisions of this Part and Part 23 (minors and patients) any person may begin, defend or carry on proceedings in person or by an attorney-at-law”.
In sum:
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(i) proceedings are begun by filing a claim form -Rule 8.1(2);
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(ii) proceedings may be begun by the claimant in person or by his attorney-at-law (Rule 22.1);
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(iii) the person who files the claim must sign it - Rule 3.6 (3) (d).
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The combined effect of Rules 8.1(1) and (2), 3.6(3)(d) and 22.1 is that a claimant may begin proceedings in the Supreme Court, by filing in the registry, in person or by an attorney-at-law, a claim form signed by the claimant or his attorney-at-law.
It seems tolerably clear to me that a claim form must be signed by the claimant himself or by his attorney-at-law. The principle qui facit per alium tacit per se does not apply where the enactment requires a personal signature. Thus the effect of Rule 22.1 is to exclude an agent other than, of course, an attorney-at-law from beginning, defending or carrying on proceedings on behalf of the claimant. Accordingly, in my view, Miss Sheila Smith, the alleged agent of the claimants, had...
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