The issue of Fraud has surfaced in a dispute over Property under the Possessory Title act In Grenada.
THE NEW TODAY has obtained the copy of a ruling handed down by high court judge Justice Raulston Glasgow in a court matter arising out of a case on the sister isle of Carriacou.
The warring parties are Waldron Garraway as Administrator for the Estate of the late Marry Nellis John and Yvette Downes Logan for the lands located at Grand Bay on the sister isle.
Listed as Claim NO. GDAHCV2020/0530, the two attorneys in the court battle are Hazel Hopkin for the Applicant (Yvette Downes Logan) and Yurana Phillip for the Respondent (Waldron Garraway).
As a public service, THE NEW TODAY reproduces in full the ruling of Justice Glasgow on the issue:
Discussion on extension of time
[20] As stated above, section 21(2) of the Act does not provide a mechanism for the court to extend the time for filing an application to set aside a declaration on the ground of either mistake or fraud. The rest of the provisions of the Act are equally silent on the matter. Dealing with the court’s inherent jurisdiction firstly, I am constrained by authority which instructs that in view of the statutory schema, there is no authority in this court to extend the time limit therein contained by reverting to the court’s inherent jurisdiction. Our Court of Appeal addressed this issue frontally in the case of Fairfield Sentry Limited v Migani et al. In that case the court dealt with a request for an extension of time to file leave to appeal to the Privy Council in circumstances where a statutory time limit of 21 days was exceeded. The applicant asked the court to utilize its inherent jurisdiction to extend the time limited by Article 4 of the Virgin Islands (Appeals to Privy Council) Order 1967. In refusing the extension application, our Court of Appeal relied on the following dictum from Texan Management Limited et al v Pacific Electric Wire & Cable Company Limited where it was observed that –
“… the modern tendency is to treat the inherent jurisdiction as inapplicable where it is inconsistent with the CPR, on the basis that it would be wrong to exercise the inherent jurisdiction to adopt a different approach and arrive at a different outcome from that which would result from an application of the rules: Raja v Van Hoogstraten (No 9) [2008] EWCA Civ 1444, [2009] 1 WLR 1143. That decision concerned the court’s power under the inherent jurisdiction to set aside an order made without notice ex debito justitiae. It was held that although the inherent jurisdiction may supplement rules of court, it cannot be used to lay down procedure which is contrary to or inconsistent with them, and therefore where the subject matter of an application is governed by the CPR it should be dealt with in accordance with them and not by exercising the court’s inherent jurisdiction.”
[21] The Court of Appeal in Fairfield therefore concluded that –
“We adopt this approach. Article 4 is clear. It lays down a time line of 21 days for the making of an application and gives no power to this Court to extend that time, and we do not consider that it would be correct to invoke the inherent jurisdiction of this Court so as to arrogate to itself a power to extend the time as limited in Article 4, where neither in Article 4 nor in any other provision contained in the 1967 Order is such a power (save where specifically permitted) given, and thereby engage a procedure to arrive at a different outcome to that contemplated by Article 4. This power appears to be reserved to the JCPC under the 2009 Rules. This Court has no power to extend the time under Article 4 of the 1967 Order.”
[22] I come to the same conclusion with respect to CPR 26.1(2)(k) and 39.5 Section 21 of the Act is unambiguous and clear as to its intendment with respect to time limits for opposing claims for possessory title and for setting aside orders granting the same. There is no lacuna or obfuscation in section 21. Parliamentary intention is always to be presumed to be deliberate and plain except where to form that view would lead to ambiguity, obscurity or patent absurdity in the meaning of the legislation. As was said in Fairfield, if it was intended that the mandatory time limit could be extended, then Parliament would have said so pellucidly. Parliament enacted no such provisions on extensions of time in the Act and as such, it cannot be the case that the CPR, which contains subordinate legislative pronouncements can be utilized to supplant, augment or adjust the clear provisions of the Act which are substantive legislation.
[23] This reasoning is even more graphic in the situation appertaining to the time limit in Rule 39.5.That rule prescribes that an application to vary a judgment given where a party was absent at a trial must be made within 14 days of the service of the order or judgment. It is clear that this time limit stated in CPR 39.5 conflicts with the 60 day time limit in section 21 of the Act. In view of the fact that section 21 of the Act appears to enact a complete code on setting aside orders in the circumstances and manner envisioned therein, there is no authority (and indeed none has been produced by Ms. Logan) for a resort to CPR 39.5.
[24] All in all, I find that Ms. Logan has not shown that there is any basis in the CPR and/or under the court’s inherent for the grant of an extension of time to file an application under section 21 of the Act to set aside an order for possessory title.
The CPR 13.4 argument
[25] Sections 11 and12 of Act provide that:
“11.—(1) The Court shall hear every application for declaration of possessory title in open Court.
(2) Every affidavit and written claim filed with respect to an application for declaration of possessory title shall stand as pleadings, and no further pleadings shall be filed without the leave of the Court.
(3) Where at the hearing of an application for declaration of possessory title the Court requires further evidence, the Court may take such evidence orally or by affidavit as it sees fit.
- (1) An applicant may obtain judgment without trial, where in respect of the application for declaration of possessory title–
(a) no person enters an appearance within the prescribed time; or
(b) no person files a written claim within the prescribed time.
(2) Where a person who has entered an appearance pursuant to section 9 fails to file a written claim within the prescribed time, the Court may proceed ex parte and the Court may make an order or give a decision as it sees fit.” (My emphases)
[26] CPR 12.4 and 12.5 set out the conditions that must be satisfied in order to obtain default judgment on a claim form and statement of claim:
“CPR 12.4 prescribes:
Conditions to be satisfied – judgment for failure to file acknowledgment of service.
12.4 The court office at the request of the claimant must enter judgment for failure to file an acknowledgment of service if –
(a) the claimant proves service of the claim form and statement of claim;
(b) the defendant has not filed –
(i) an acknowledgment of service; or
(ii) a defence to the claim or any part of it;
(c) the defendant has not satisfied in full the claim on which the claimant seeks judgment;
(d) the only claim is for a specified sum of money, apart from costs and interest, and the defendant has not filed an admission of liability to pay all of the money claimed together with a request for time to pay it;
(e) the period for filing an acknowledgment of service under rule 9.3 has expired; and
(f) (if necessary) the claimant has the permission of the court to enter judgment.
And CPR 12. 5 prescribes:
Conditions to be satisfied – judgment for failure to defend.
12.5 The court office at the request of the claimant must enter judgment for failure to defend if –
(a) (i) the claimant proves service of the claim form and statement of claim; or
(ii) an acknowledgment of service has been filed by the defendant against whom judgment is sought;
(b) the period for filing a defence and any extension agreed by the parties or ordered by the court has expired.” (My emphases)
[27] The language used in CPR 12.4 and 12.5 are mandatory. Both rule 12.4 and 12.5 state that the court “must enter” judgment where the requisite conditions have been satisfied. The court has no discretion to refuse entry of the default judgment once those conditions as set out have been met.
[28] On the other hand, a whole different set of factors are engaged in relation to disposing of applications for possessory title. Section mandates that the court must hear every application in open court. The court must also consider all affidavit and other material placed before it. The court can also take evidence orally or by affidavit. All in all, under section 11, a hearing must be conducted before granting an order for possessory title. Section 12 then says that the applicant may obtain judgment, properly after a section 11 hearing, even where there is either no appearance or where there is an appearance, but no written claim has been filed within the time set out in the Act by the person who has filed the appearance.
[29] Accordingly, I agree with Ms. Phillip’s submission that while a default judgment as envisaged by the CPR is entered as an administrative Act, an application for possessory title pursuant to section 12 of the Act is determined by the court based on evidence and pleadings contained in the application CPR 13.4 does not apply to such circumstances. Rather, I would say that the statutory regime under section 12 of the Act is more analogous to CPR 27 which contains provisions on hearings in cases where a fixed date claim has been served and no defence has been filed. In those cases, the court is still required to examine whether the claimant has made out a case on the fixed date claim and statement of claim. The claimant is not perfunctorily or administratively granted a judgment by default as is the case in claims falling within the CPR 12 process.
Conclusion
[30] I have therefore found that the prescribed time for filing an application to set aside the declaration of possessory title pursuant to sections 21 and 31 of the Act cannot be extended by way of the court’s case management powers under CPR 26.1(2)k or 39.5 or its inherent jurisdiction. Section 21 of the Act is determinative of the time limit within which to bring such a set aside application. Ms. Logan’s application filed pursuant to section 31 of the Act on the grounds of mistake, having been filed on 3rd May 2022, is out of time and is refused.
[31] Where fraud is concerned, however, the Act does not set out a period within such an application may be filed and served. Even if the Limitation Act is said to apply, the application to set aside on grounds of fraud is not out of time. Therefore, the section 30 application is not time barred and will proceed to trial on the assertions of fraud subject to the following directions –
(1) The trial will take place on 19th September 2023;
(2) The parties may file and serve further evidence by way of affidavits at least 21 days before the trial date;
(3) The parties are to comply with CPR 39.1 in preparation for trial; and
(4) The costs of this application will be costs in the cause.
Raulston L.A. Glasgow
High Court Judge
By the Court
Registrar