Supreme Court
Action No. 23 of 1981
23rd November, 1981
Alcantara, J.

Mr. Michael C. E. Young for the Plaintiff
Mr. H.E. Elrington for the Defendant

Practice and Procedure - Procedure - Issues relating to title to land - Summary Procedure inappropriate - Effect given to O74 R21 of the RSC in directing that the Action should be proceeded with under the extended procedure.

J U D G M E N T

On the face of it this is a simple claim for possession and mesne profits. On the day before the hearing a Defence was filed. The defence was not available to the court until the actual hearing of the action contrary to Order 74, Rule 10, of the Supreme Court Rules. The plaintiff did not raise any serious objection to this and preferred the action to proceed provided that he was allowed to address the court on a later day.

I should point out that the Defence is not one simpliciter, but a Defence and counterclaim, although it is not so stated. Paragraph 10 of the Defence reads:

"The Defendant now claims a declaration that he is the beneficial owner in fee simple in possession of the portion of lot 1154 now occupied by him, and that he is entitled to have the legal title of the said portion of lot 1154 above mentioned, conveyed to him."

Evidence was given by the plaintiff herself and it became obvious to the court that she was aware that the defendant was claiming the land as his, and was disputing her title to it. The case was then adjourned to take further evidence. This has given me the opportunity to consider whether this action should be allowed to proceed on the Summary Procedure of the Supreme Court

I direct my mind to Order 74, Rule 21, which is as follows:-

"21.-(1) If, on any special ground arising out of the defence or question raised or the nature of the action or owing to other litigation between the same parties being pending in the Court or for any other reason, the Court is of opinion that any action or matter although triable in accordance with the summary procedure of the Court ought to be heard, tried or determined in accordance with the extended procedure of the Court, it shall be lawful for the Court to order that the action be tried in accordance with the extended procedure of the Court.

(2) If the Court so orders, the action shall thereafter proceed as if it had been originally commenced in accordance with the extended procedure."

I therefore order that this action should so proceed on the ground that the
Court is of the opinion that this action should be tried by the Supreme Court on its plenary jurisdiction. I am fortified in my decision by a number of authorities regulating the procedure of the County Court in England where the question of title is in issue. I need only refer to the notes in the County Court Practice 1971 at pages 37 and 38. All the decisions agree that if there is in issue a question of title the jurisdiction of the County Court is ousted. Taking into account that the jurisdiction of the Summary Procedure is similar to that of the County Court, I am of the opinion that those authorities are applicable.

The next step for the parties is to issue a summons for directions where the question of further pleadings should be considered together with whether the evidence already given can be considered as evidence in the action.