Yvette Downes Logan v Waldron Garraway
| Jurisdiction | Grenada |
| Judge | Glasgow, J. |
| Judgment Date | 13 December 2023 |
| Judgment citation (vLex) | [2023] ECSC J0614-1 |
| Docket Number | CLAIM NO. GDAHCV2020/0530 |
| Court | High Court (Grenada) |
In the Matter of the Possessory Titles Act No. 22 of 2016
and
In the Matter of an Application for a Declaration of Possessory Title for the Lot of Land Situate at Grand Bay in the Island of Carriacou in the State of Grenada
and
Waldron Garraway as Administrator for the Estate of Mary Nellis John (Also known as Nellis John) Deceased
The Hon. Mr. Justice Raulston L.A. Glasgow High Court Judge
CLAIM NO. GDAHCV2020/0530
IN THE SUPREME COURT OF GRENADA
AND WEST INDIES ASSOCIATED STATES
HIGH COURT OF JUSTICE
(CIVIL)
Ms. Hazel Hopkin for the Applicant
Ms. Yurana Phillip for the Respondent
This is a ruling in respect of an application filed by the applicant (“Ms. Logan”) pursuant to the Civil Procedure Rules 2000 (“CPR”) 13.4, 26.1(2)(k) and 39.5 for an extension of time to file an application to set aside a declaration of possessory title granted by this court to the respondent, (“Mr. Garraway”). Ms. Logan wishes the court to set aside the grant of possessory title pursuant to the provisions of sections 21, 30 and 31 of the Possessory Titles Act 1 (“the Act”).
On 29 th September 2021, this court granted a declaration of possessory title in Mr. Garraway's favour further to an application 2 filed by him under the Act with respect to property situate at Grand Bay, Mt. Pleasant in the island of Carriacou. The declaration was subsequently published in the Government Gazette on 8 th October 2021 in accordance with section 23 of the Act.
On 3 rd May 2022, Ms. Logan filed the present application which seeks an extension of time to file an application to set aside the declaration of possessory title. Mr. Garraway objects to the extension of time. The parties were ordered to file written submissions on or before 13 th December 2022 and thereafter the court will issue its ruling.
Ms. Logan seeks the following relief:
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1) That time be extended pursuant to the CPR Rule 26.1(k) for Ms. Logan to make an application under CPR 39.5 and/or section 21 of the Possessory Titles Act No. 22 of 2016 to set aside the declaration of possessory title made ex parte in favour of Mr. Garraway on 29 th September 2021.
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2) That Ms. Logan's application dated 3 rd May 2022 is deemed properly filed.
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3) That the declaration of possessory title made on 29 th September 2021 be set aside pursuant to sections 30 and/or 31 of the Act.
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4) That the declaration of possessory title be set aside pursuant to CPR 13.4.
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5) That leave be and is hereby granted to the applicant to file evidence in opposition to Mr. Garraway's claim in accordance with section 9 of the Act.
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6) Costs.
The grounds of the set aside application can be subsumed under two broad heads, that is, request for declaration of (1) fraud, and (2) material mistake. Much of the grounds recite allegations that Mr. Garraway misrepresented certain facts in his application for possessory title and that he was not in possession of the property as claimed.
The sole issue for determination is whether Ms. Logan ought to be granted an extension of time to file the application to set aside the declaration of possessory title in accordance with CPR 26.1, CPR 13.4 or CPR 39.5 and/ or further to the court's inherent jurisdiction.
Ms. Logan's set aside application cites section 21 of the Act which prescribes:
“(1) Where a declaration of possessory title is voidable by virtue of section 31, a person may apply for the declaration to be set aside by an order of the Court.
(2) A person who seeks to claim in opposition to an application for declaration of possessory title may, not later than sixty days after the order of the Court has been published in the Gazette pursuant to section 23, apply for the judgment to be set aside or varied, where–
(a) the judgment was obtained without trial.
(b) the person entered an appearance but failed to file a written claim within the prescribed time and the judgment was obtained in ex parte proceedings.” (My emphasis)
Ms. Logan has asked the court to extend the sixty day period stated in section 21 so as to allow her set aside application to proceed. Ms. Logan's position is that section 21 of the Act gives the court the jurisdiction to set aside an ex parte order which is voidable under section 31. She argues that section 31 indicates no prescribed time limit and that her reasons advanced for setting aside the declaration of possessory title are proper.
Conversely, Mr. Garraway argues that section 21(2) of the Act prescribes that a person who seeks to claim in opposition to an application for a declaration of possessory title in respect of which judgment has been given, may not later than sixty days after the order of the court has been published in the Gazette by the Registrar, make an application to set aside or vary the judgment. Mr. Garraway's posture is that given that the sixty day time limit is specifically stated at section 21 of the Act, CPR 26.1(2)(k) cannot apply as claimed by Ms. Logan. This is since CPR 26.1(2)(K\k) refers to an extension of time in instances where the time limit is imposed by a rule, practice direction, order or direction of the court. The time for making an application under section 21(2) of the Act is a time limit imposed by statute and is clearly not one contemplated by the items recited in CPR 26.1(2)(k). Consequently, Mr. Garraway concludes, the time period set out in section 21 of the Act is not amenable to being extended by invoking CPR 26.1(2)(k).
I agree with the applicant that section 21 states the time within which a set aside application should be brought on the grounds of mistake. In this regard, section 21 (1) and (2), set out above, must be read together. This is since the applicant is claiming the courts' intervention in a case where the grant of an order for possessory title was made “without trial” (section 21 (2)(b).
Ms. Logan's application to set aside the declaration was filed on 3 rd May 2022 some seven months after the declaration was gazetted on 8 th October 2021. The application on the grounds of mistake was not made within the sixty-day prescribed time and is therefore out of time. Section 21(2) makes no provision for the court to extend the time to file an application to set aside the declaration on the ground of mistake. Therefore, the question remains and will be examined below whether the time can be extended by invoking the provisions of the CPR and/or the court's inherent jurisdiction.
With respect to the ground of fraud, it does not seem to me that Parliament made the same provisions on time within which to file an application to set aside the grant of an order for possessory title as it did with mistake. There is no mention of fraud within section 21 while specific reference is made to mistake. Fraud is dealt with exclusively in section 30 where the section states –
“…any declaration or title obtained as a result of the making of the material false statement or representation, or the suppression or nondisclosure of the material document or information, shall be null and void.”
This provision, in my view, is a deliberate act of the lawmakers in recognition of the fact that, as stated by Lord Denning in Lazarus Estate Ltd v Beasley 3:
“No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it is obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts, and all transactions whatsoever…” (Bold emphases mine).
In Lazarus Estates the court explored the viability of an assertion that a statutory limitation period did not apply where a defence of fraud was raised in answer to a claim for arrears of rent. Statute, in that case, required the applicant to challenge a claim for arrears of rent on certain grounds, particularly that “… the repairs had not been done to the value specified…”. A challenge on the grounds set out in the statute could only be brought within a period of 28 days. Fraud was not limited as one of the grounds on which a challenge should be raised within the 28 days' limitation period. The court found that the claimant –
“… by challenging the declaration on the ground that it was fraudulent, was challenging its validity on grounds other than that repairs had not been done to the value specified therein, for fraud vitiates all transactions known to the law, and the landlords could not recover rent by reason of their fraud.” 4
As stated above, Ms. Logan's application in respect of the issue of fraud was grounded in section 30 of the Act. Ms. Logan alleges that Mr. Garraway presented false statements in his possessory title application. For instance, Ms. Logan points out that Mr. Garraway relies on Nellis John's (deceased) possession of the estate in question. Ms. Logan vociferously maintains that Ms. Nellis John was not in factual possession of the property since Ms. Nellis John lived her entire adult life in the United States of America and could not have been in possession of the property at the time of her death. Ms. Logan argues that this fact, among others, were well known to Mr. Garraway, who failed to present those facts to the court as he was obliged to do when making his application for possessory title. The foregoing exposition of law and the fact that Parliament did not prescribe the time within which to set aside the order for possessory title on grounds of fraud as it did with respect to mistake suggests that these allegations of fraud can be pursued at trial since there is no evidence that they have...
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