Thu | Aug 17, 2017

Laws of Eve | Recovery of possession in parish courts

Published:Monday | January 2, 2017 | 1:00 AM

Proceedings in the parish courts (formerly Resident Magistrate's courts) across the island are expected to give ordinary citizens their best opportunity to represent themselves in court proceedings.

Those persons usually rely on guidance from the staff in the court's registry to ensure that there is full compliance with the Parish Court's Act and Rules.

Interestingly, little is taught in law school about the procedure in the parish courts, so new lawyers typically learn on the job, and know little more than ordinary citizens to begin with. With the archaic act and rules that govern proceedings in the parish courts, what should be simple often becomes lengthy and complicated.

Without the benefit of annual reports from the parish courts, I have relied on my experience to say that recovery of possession matters are more frequently commenced in parish courts than in the Supreme Court. In fact, given the choice between proceeding with that form of action in the parish courts versus the Supreme Court, most litigants are likely to choose the parish courts because it is expected that it will be quicker, less costly and less complicated.

I have often wondered why recovery of possession matters (with the exception of those that involve complicated legal issues concerning ownership of property) are not handled by a special tribunal. This is because in many cases, the matter is resolved in the parish court at the first hearing, with the tenant being given a deadline by which he or she must vacate the rented property. Some of the most common issues regarding outstanding rent or damage to rented property are better suited for resolution at mediation or in some other quasi-judicial setting than continuing to burden the already time-strapped courts with these types of matters.

The reality is that change occurs very slowly, and until the amended act and rules come into effect, we must utilise the process that exists, and a recent Court of Appeal decision (Clarke v Mullings-Clarke [2016] JMCA Civ 60) reminded me of some useful points to bear in mind when commencing recovery of possession matters in the parish courts:

1. Sections 89 and 96 of the Judicature (Parish Court) Act deals with actions for recovery of possession. Section 89 deals specifically with squatters.

2. The person who commences an action for recovery of possession must prove title to the property, whether the action is against a squatter or a legitimate occupier of that property.

3. Order VI rule 4 of the Rules states that, "In all actions for the recovery of land the particulars shall contain a full description of the property to be recovered, and of the annual value thereof, and of the rent, if there be any, fixed or paid in respect thereof." There must be a statement or evidence of the annual value of the property, so that the parish judge can determine whether he or she has jurisdiction to hear the matter.

4. In cases involving squatters, the question of the annual value of the land does not arise - See the Court of Appeal's decision in Danny McNamee v Shields Enterprises Ltd [2010] JMCA Civ 37.

5. In the parish courts, certain defences are called 'special defences' and, pursuant to Section 150 of the act, the defendant must give notice of a special defence. However, even if that notice is not given, Section 151 allows the parish judge to exercise his or her discretion to allow the defendant to rely on that defence.

One of my New Year's wishes is that the justice system will become one of our nation's priorities, so that adequate resources, the necessary infrastructure and systematic reform will become reality.

• Sherry Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield, Deleon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.