Adola Manufacturing Company Ltd v McDonald and Others

• Jurisdiction: Jamaica
• Judge: Mangatal J:
• Judgment Date: 03 April 2009
• Judgment citation (vLex): [2009] 4 JJC 0304
• Date: 03 April 2009
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

CLAIM NO. C.L.A. 038 OF 2002

BETWEEN

ADOLA MANUFACTURING CO. LTD.

CLAIMANT

AND

MALCOLM MCDONALD

1 ^ST DEFENDANT

AND

SIMON TODD

2 ^ND DEFENDANT

AND

BENBECULA LIMITED

3 ^RD DEFENDANT

AND

CARIBBEAN SYSTEMS LIMITED

4 ^TH DEFENDANT

AND

CIBC JAMAICA LIMITED

5 ^TH DEFENDANT (STRUCK OUT BY ORDER OF COURT on 31 ^st March 2003)

^{st rd}

CIVIL PROCEDURE - Summary judgment - Application - Whether eviction unlawful - Whether estoppel arises

Summary Judgment Application - Whether Eviction Unlawful - Whether Estoppel Arises

Mangatal J

1 This is an application by the 1 ^st , 2 ^nd and 3 ^rd Defendants for summary judgment in relation to two issues raised in the Statement of Claim. The claim is for damages against the Defendants jointly or severally for trespass to land and unlawful eviction on the 19 ^th November 2000 from premises located at 4 Fairfield Avenue, Kingston 20. The Claimant further claims damages for unlawful detention and or conversion of its goods against the 1 ^st , 2 ^nd and 3 ^rd Defendants only. The application for summary judgment is in relation to the claim for trespass and unlawful eviction. The application also asks for the claim to be struck out against the 1 ^st Defendant Malcolm McDonald as disclosing no reasonable cause of action. However that aspect of the application was not argued before me and so I will not be dealing with that issue.

2 The Claimant's case is that on the 1 ^st July 1999 it entered into a lease agreement with the 4 ^th Defendant for the lease of part of the premises at 4 Fairfield Avenue. The premises were at the time subject to a mortgage whereby the 4 ^th Defendant was the mortgagor and CIBC Jamaica Limited "C.I.B.C." was the mortgagee. The Claimant contends that CIBC was at all material times aware that it was a tenant of the 4 ^th Defendant.

3 The premises 4 Fairfield Avenue were sold by CIBC in exercise of its powers of sale to William Wilson Limited on the 26 ^th October 2000. The property was then transferred to the Third Defendant in the capacity of nominee of William Wilson Limited. The Claimant avers that the 1 ^st , 2 ^nd and 3 ^rd Defendants were at all material times aware that it was a lawful tenant of the 4 ^th Defendant pursuant to the lease agreement entered into in July 1999.

4 On the 18 ^th November 2000 the 1 ^st , 2 ^nd and 3 ^rd Defendants entered on the premises and according to the Claimant, wrongfully and unlawfully trespassed on the leased premises and unlawfully evicted the Claimant by changing the exterior locks to the building. The Claimant also claims that the 1 ^st , 2 ^nd and 3 ^rd Defendants wrongfully detained its goods and further contends that as a result of the wrongful eviction from the premises and the unlawful detention of its goods it suffered loss of income, loss of profit and loss of valuable contracts for the manufacture of goods for export and for local sale.

5 The Claimant has leveled a substantial claim against the Defendants, seeking special damages in the sum of $79,571,458.00 as well as damages for wrongful and unlawful eviction against all of the Defendants and for unlawful detention of goods against the 1 ^st to 3 ^rd Defendants.

6 The 1 ^st , 2 ^nd and 3 ^rd Defendants have filed a Defence, which draws attention to, and relies on the following circumstances. I have singled out those aspects of the Defence that deal with the claims for trespass and wrongful eviction.

7 By Clause 4 (7) of the Instrument of Mortgage dated the 8 ^th May 1995 between CIBC and the 4 ^th Defendant, the 4 ^th Defendant covenanted "Not to lease let or part with the possession or the right to the possession of the mortgaged premises or any part thereof during the continuance of this security without the previous written consent of the Bank.....".

8 The Claimant had constructive notice of the terms of the mortgage and was bound by those terms.

9 The 3 ^rd Defendant and its agents, the 1 ^st and 2 ^nd Defendants, had no knowledge of a lease agreement dated July 1, 1999 or any lease whatsoever between the Claimant and the 4 ^th Defendant.

10 The 3 ^rd Defendant and its agents gave written notice dated the 31 ^st August 2000 to all occupants of the premises to vacate the premises within 21 days.

11 The Claimant and all other occupants of the premises were allowed reasonable entry to the premises to take their belongings upon reasonable notice being given.

12 The Fourth Defendant in its Defence contends that :

• (a) CIBC and the 1 ^st and 2 ^nd Defendants were at all material times aware that the Claimant was the lawful tenant of the 4 ^th Defendant.

• (b) The 1 ^st , 2 ^nd and 3 ^rd Defendants wrongfully and unlawfully trespassed on the leased premises and evicted the Claimant and thereafter refused the 4 ^th Defendant entry to the property.

• (c) The 4 ^th Defendant took no part in nor did it authorize, support or instruct anyone including the 1 ^st , 2 ^nd and 3 ^rd Defendants to evict or lockout, whether lawfully or unlawfully the Claimant from the leased premises.

13 The 5 ^th Defendant CIBC is no longer a party to this Claim. On the 31 ^st March 2003 CIBC applied for, and succeeded in its application for the Writ of Summons by which this Claim was commenced and the Statement of Claim to be struck out as

• (d) Disclosing no reasonable cause of action against the 5 ^th Defendant ; and/or

• (e) Being frivolous and/or vexatious against the 5 ^th Defendant; and/or

• (f) An abuse of the process of the Court.

14 Neither the Claimant nor the 4 ^th Defendant attended for the hearing of the application to strike out.

15 The application for summary judgment expressly states that it is made pursuant to Part 15 and Rule 26.3(1)( c)of the Civil Procedure Rules 2002 " C.P.R." .

16 Rules 15.1 and 15.2 provide as follows:

Scope of this Part

15.1 This part sets out a procedure by which the court may decide a claim or a particular issue without a trial.

Grounds for summary judgment

15.2 The court may give summary judgment on the claim or on a particular issue if it considers that-

• (a) the claimant has no real prospect of succeeding on the claim or the issue or;

• (b) the defendant has no real prospect of successfully defending the claim or the issue.

  (Rule 26.3 gives the court power to strike out the whole or part of statement of case if it discloses no reasonable ground for bringing or defending the claim.)

17 Rule 26.3.(1) (c ) states:

26.3 (1) In addition to any other powers under these Rules, the court may strike out a statement of case or part of a statement of case if it appears to the court-

(c) that the statement of case or part to be struck out discloses no reasonable grounds for bringing or defending the claim;...

18 I appreciate that the summary judgment jurisdiction is reserved for clear-cut cases and the court is not to engage in what would amount to a mini-trial on the issues . See Swain v. Hilman [2001] 1 All E.R. 91 and locally, the unreported decision of my brother Anderson J. in Suit No. C.L. 2002 C145, Caribbean Outlets Limited v. Beverly Barakat, delivered May 19 2004, and my own decision in Claim No. 1268 of 2003, Eureka Medical Ltd. v. Life of Jamaica Ltd. , delivered October 12 ^th 2005.

The Issues

19 The Claimant and the 4 ^th Defendant both aver that the 1 ^st and 2 ^nd Defendants were at all material times aware (the Claimant also imputes awareness to the 3 ^rd Defendant) that the Claimant...