A1 Ltd v Mary Grace Abrahams

• Jurisdiction: Jamaica
• Judge: Batts J
• Judgment Date: 25 January 2019
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2007HCV02564
• Date: 25 January 2019

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2007HCV02564

CLAIM NO. 2017CD00531

Between

A1 Limited

Claimant

and

Mary Grace Abrahams

Defendant

Between

Mary Grace Abrahams

Claimant

and

A1 Limited

Defendant

Samoya Young instructed by Clough Long & Co. for A1 Limited.

Andre Sheckleford instructed by Hart Muirhead & Fatta for Mary Grace Abrahams

Application for stay of execution pending appeal - Application for removal of caveat — to strike out claim — Whether issue estoppel or res judicata — Judge reached age of retirement prior to delivery of judgment — Whether real prospect of success on appeal — Stare decisis — Whether Supreme Court bound by decision of court of appeal — Whether real risk of injustice if stay refused.

IN CHAMBERS

CORAM: Batts J

1 There are multiple applications in separate suits before me. The applications are:

• [a] In Claim 2007HCV02564: An application, filed on the 25 ^th April 2016, for a Declaration that leave to appeal was granted on the date judgment was delivered and, for a Stay of Execution pending appeal.

• [b] In Claim No. 2017CD0053: The final hearing date of the Fixed Date Claim for removal of Caveat and an application to strike out the claim and/or to have it stayed pending the determination of the appeal in Claim 2007HCV02564.

2 The facts and circumstances leading up to these applications are not in dispute. Mary Grace Abrahams (hereinafter referred to as Mary) entered into an agreement dated 27 ^th March 2007 with A1 Limited (hereinafter referred to as A1). Mary, in that agreement, agreed to sell to A1 a parcel of land registered at Volume 1156 Folio 9747 of the Register Book of Titles (hereinafter referred to as the land). Time was, expressly stated to be, of the essence in relation to condition 4 of the agreement. Upon A1 being late, in relation to condition 4 time lines, Mary terminated the agreement and forfeited a part of the deposit.

3 A1 then commenced Claim No. 2007HCV02564 (hereinafter referred to as the 2007 claim) against Mary seeking specific performance of the agreement. Mary, in that claim, successfully applied for and obtained summary judgment. The judge, who heard the application and wrote the judgment, was the Honourable Mr. Justice Raymond King. The application before Justice King was heard on the 2 ^nd day of October 2012 and judgment was reserved. However, between that date and the date it was delivered, Justice King reached the retirement age of 70 years. His written judgment was therefore delivered by Ms. Justice Nicole Simmons on the 16 ^th March 2016. There was no minute of order made, or at any rate none is to be found on file, at the time judgment ‘was delivered. A1 contends that Simmons J granted them leave to appeal. The appeal was filed on the 25 ^th April 2016. An Amended Notice and Grounds of Appeal was filed on the 4 ^th May 2016.

4 A1 applied, by notice of application filed on the 25 ^th day of April 2016, for a declaration that leaves to appeal was granted and for a stay of execution of the order of King J pending appeal. That application was listed on the 9 ^th June 2016, 22 ^nd June 2016 and 22 ^nd September 2016. On the last date it was adjourned, for a date to be fixed by the Registrar, apparently due to the absence of A1's representative.

5 The matter remained dormant until Mary, by Fixed Date Claim No. 2017CD00531 (hereinafter referred to as the 2017 Claim) filed on the 31 ^st October 2017, applied for an Order to remove caveat # 1471506 dated 11 ^th May 2007 and lodged on the title to the land. The caveat relates to the same land and the same agreement which was the subject of the 2007 Claim. A1, by notice of application filed on the 5 ^th October, 2018, applied to strike out the 2017 Claim as being an abuse of process. Alternatively, A1 seeks to have the 2017 claim stayed pending the hearing of its appeal in the 2007 claim.

6 Upon the 2017 Claim, and the application to strike it out, coming on for hearing, I directed that the applications in the 2007 Claim be also listed for hearing before me at the same time. It seemed to me to be the only way to do justice in this long outstanding, and unnecessarily delayed, matter.

7 In the result, and but for one rather surprising turn of events which I discuss below, the issues were not difficult to resolve. I will treat with the matters on the assumption that Justice Simmons gave leave to appeal. There was affidavit evidence suggesting she had, see paragraph 6 of the affidavit of Joseph Issa dated 21 ^st April 2016, and there is no evidence in rebuttal. There was no Formal Order, nor was there a Minute of an Order when judgment was delivered. I canvassed Justice Simmons on or about the 20 ^th December 2018 who, not surprisingly, had no recollection. On that same day the cabinet, which would have had the relevant notebook, was locked. Her secretary was on departmental leave and the key to the cabinet could not be located. I indicated all this to the parties as well as my intention to hear the matters on the assumption that leave had been granted. Neither side demurred.

8 I am grateful to the parties for the submissions made and authorities cited. Having given the matters careful consideration my conclusions will be shortly stated.

9 In relation to the 2017 Claim I agree with A1 that it must be struck out. That claim, being for removal of a caveat lodged to support an interest by virtue of the disputed agreement, involves the same matters in dispute in the 2007 claim. In order to decide whether to remove the caveat the court will necessarily either have to decide whether A1 Is entitled to specific performance or, whether the 2007 Claim finally resolved the issue in Mary's favour. In either event it involves the court relitigating an earlier claim between the same parties in respect of the same issues. Res judicata and/or issue estoppel clearly arises and, for present purposes, it matters not which it is, see generally: Fletcher G Company Ltd. v Billy Craig Investments Ltd. et al [2012] JMSC Civil 128 (unreported judgment of McDonald Bishop J dated 24 September 2012). I therefore Order that the 2017 Claim be dismissed.

10 The situation, in respect of the applications in the 2007 claim, seems equally clear. A1, as I indicated earlier, applied for a stay of execution pending appeal. Mr. Sheckleford, for Mary, argued firstly that the court had no jurisdiction to grant a stay because there was nothing to stay. He relied primarily on the decision, of the Court of Appeal, in Dennis Atkinson v Development Bank of Jamaica SCCA 90/2015, [2015] JMCA App 40, (unreported judgment of Phillips JA delivered 20th October, 2015). I respectfully disagree because the cases are distinguishable. Justice King's judgment, when read with the typographical error in Para 18 corrected, granted summary judgment. It had the effect of striking out and/or dismissing A1's claim. That is an order of the court. The court has an inherent jurisdiction to stay its own Orders, see generally Bibby and another v Partap and another (1996) 48 WIR 371 (P.C.) and BCB Holdings Ltd v A-G of Belize (2011) 78 WIR 41. The authorities, to whom Mr. Sheckleford referred, all relate to declaratory relief. Declarations are not orders which are enforceable. They are binding pronouncements but compel no activity, and therefore, in that sense are not enforceable. There is nothing, or rather no order, to stay. For that reason a stay of execution cannot be had in relation to declaratory relief, see Robert Rainford v His Excellency the Most Honourable Sir Patrick Allen et al Application No. 106/2014 [2014] JMCA App.26 (unreported judgment of McIntosh JA delivered on the 12 ^th April 2014). I see nothing incongruous, or problematic, with a court staying an order which dismisses a claim. The stay will have the effect of keeping the action alive.

11 Mr. Sheckleford is on firmer ground with respect to the merits of A1's application for a stay. Save, for one unfortunate development, I would have dismissed that application. This is because there really is not much merit in the intended appeal. In this application, for a stay of execution pending an appeal, the question is twofold, viz: what is the appellant's prospect of success on appeal and whether there is a real risk of injustice to either or both parties if the judgment is enforced, as per Phillips JA in Ferrnah Johnson-Brown (Executor of purported last Will and testament of Leonard Lloyd Brown, deceased) v Marjorie Mclure (by her personal representative Joan Williams) [2015] JMCA 19 (unreported judgment delivered 30th April 2015).

12 The written agreement for the sale of land provided, in Special Condition 4, as follows:

• “1) The purchasers shall on or before 21 days after the date of this Agreement cause to be delivered to the Vendors Attorneys-at-law either

  • i. a letter of undertaking from a reputable licensed financial institution, in a form acceptable to the vendors Attorney-at-Law, as to the payment to the Vendor's attorney-at-law of the balance sale price and costs of this sale as set out in this agreement upon completion,

    or;

  • ii. payment in full of the balance Sale price and costs of this sale as set out in this Agreement.

  • 2) Time shall be of the essence of this special Condition 4.”

13 There is no dispute that the tender, of the letter of undertaking, was outside the 21 days stipulated by Special Condition 4. The grounds of appeal in that regard (Grounds V, XI, XII, and XV of the Amended Notice and Grounds of Appeal) allege that the contract was ambiguous. Reference is made to the “How Payable” Clause (c) and to the Completion Clause of the agreement. It is contended that the former provides for the entire balance of the sale price being payable on Completion and, the latter, for Completion in 30 days. A1's counsel posits that, since there is 30 days for completion on one hand and 21 days in Clause...