Anthony Simmons and Sandra Simmons v Marino Sakhnor (Executrix for Estate of Bertram Watkis), Janice Watkis and Edith Desnoes (Executrix for Estate George Desnoes)

• Jurisdiction: Jamaica
• Judge: Mangatal J
• Judgment Date: 14 April 2011
• Judgment citation (vLex): [2011] 4 JJC 1401
• Date: 14 April 2011
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. E111/1982

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

CLAIM NO. E111/1982

BETWEEN

ANTHONY SIMMONS

1 ^ST CLAIMANT

AND

SANDRA SIMMONS

2 ^ND CLAIMANT

AND

MARINO SAKHNOR (EXECUTRIX FOR ESTATE OF BERTRAM WATKIS)

1 ^ST DEFENDANT

AND

JANICE WATKIS

2 ^ND DEFENDANT

AND

EDITH DESNOES (EXECUTRIX FOR ESTATE GEORGE DESNOES)

3 ^RD DEFENDANT

^{st nd}

^st

RETRIAL-PRINCIPLES INVOLVED-WHETHER RES JUDICATA APPLICABLE- CLAIM FOR SPECIFIC PERFORMANCE- DAMAGES IN LIEU OF SPECIFIC PERFORMANCE- WHEN IS IT APPROPRIATE TO ORDER-STUMBLING BLOCKS TO SPECIFIC PERFORMANCE-WHETHER DATE FOR ASSESSMENT OF DAMAGES IS DATE OF BREACH OF CONTRACT OR DATE OF JUDGMENT- ROLL BACK OF DATE OF ASSESSMENT TO TAKE ACCOUNT OF DELAY

Mangatal J

1 This claim involves an Agreement for Sale of Land dated 17 ^th December 1980 in respect of property forming part of Lot 101 Belgrade Heights, Saint Andrew, registered at Volume 1057 Folio 522 of the Register Book of Titles. The Claimants are seeking the remedies of specific performance and/or damages.

2 The matter has had quite a history which at a later stage I will attempt to summarize. On the last day of hearing evidence, in accordance with applications made, I granted permission to the Claimants to file and serve Amended Statements of Case by the 4 ^th of May 2010. I also granted permission for the First Defendant to file an Amended Defence, if so advised, by the 10 ^th of May 2010. I ordered that written closing submissions were to be filed and served in place of oral submissions, along with copies of any authorities relied upon, by the 4 ^th of June 2010. The parties have all filed Amended Statements of Case, Submissions and Authorities. The late filing of the 1 ^st Defendant's Submissions and Authorities on the 11 ^th June 2010 is allowed to stand.

3 This matter arose for retrial some 28 years after the Writ of Summons and the Statement of Claim were filed on June 23, 1982. I am told by the Attorneys that the Supreme Court file has been misplaced upon a number of occasions. They have had to assist in reconstructing the file several times. All of the exhibits which were admitted in the first trial have not been located. This lapse of time has presented other challenges. I have done my best to grapple with this plethora of problems.

4 There have been numerous interlocutory applications and court decisions. One of the most well-known of these amongst civil litigators is that involving an application for a mareva injunction, (under the current Civil Procedure Rules, 2002 called ‘freezing orders’).

5 The first trial lasted from April 15-26, 1991. Ellis J. on May 7, 1992 delivered judgment in favour of the Claimants against the 1 ^st and 3 ^rd Defendants for damages in lieu of specific performance in the sum of $4,500,000.00. The 1 ^st and 3 ^rd Defendants were also ordered to return the deposit of $28,500.00 plus interest. Judgment was in favour of the Second Defendant against the Claimants. Costs were awarded to the successful parties.

6 At the first trial, the Claimants, who are named as purchasers in the Agreement for Sale, gave evidence along with two witnesses called on their behalf, namely Noel Foster, now deceased, who had in his possession at the time of the sale the keys to the premises, and Mr. Dennis Chin, realtor.

7 Mr. Bertram Watkis, now deceased, was and is registered on the Title along with his wife the Second Defendant Janice Watkis. Mr. Watkis gave evidence at the first trial. Although represented at the trial, the Second Defendant, did not elect to give evidence, although there was cross-examination by Counsel on her behalf. At the time of the earlier trial, Mr. Desnoes, the Third Defendant was represented by an Administrator Ad litem, the Court having been informed that Mr. Desnoes was suffering from a mental condition that made his appearance impossible.

8 Mr. Watkis appealed the decision of Ellis J., and the Claimants cross-appealed seeking specific performance of the Agreement for Sale. By a majority, the Court of Appeal (Carey, Forte J.J.A. and Wolfe J.A. dissenting) decided that a retrial was necessary in the interests of justice.

9 The Claim then was, as it is now, for enforcement of the Agreement for Sale which was signed by the Claimants as purchasers, on the one hand, and by Mr. Desnoes allegedly on behalf of Mr. Watkis on the other hand. The Claimants seek specific performance of this Agreement and /or damages and interest. Alternatively that as a Tenant-in-Common in Equity, Mr. Watkis should transfer his half share of the premises to the Claimants for half the purchase price, and/or damages in the sum of $134,729,407.30 and further damages in respect of continuing losses.

10 The entire property registered at Volume 1057 Folio 522 contains a residential house and approximately 11.8 acres of land. The subject matter of the Agreement for Sale was the residential house and 6 acres of land most proximate to it. The Agreement was subject to the condition that subdivision approval would have to be obtained.

11 As regards Mr. Desnoes, both Claimants have elected not to proceed against him this time around. The 1 ^st Claimant has however filed a Notice of Intention to Rely upon Affidavit evidence of George Desnoes provided at an earlier stage in the proceedings. In a further hearing which I asked the parties to attend on the 5 ^th of April this year, it was clarified that the Affidavits of Mr. Desnoes were not in fact part of the evidence placed before me at the retrial. In any event, the Court of Appeal made it quite clear that the evidence of Mr. Desnoes could not be used against Mr. Watkis in determining what authority, if any, Mr. Watkis had conferred upon Mr. Desnoes. At the hearing on the 5 ^th , it was also clarified that the Affidavit of Bertram Watkis filed May 30 ^th 2000, alluded to by Mr. Dunkley in his Closing Submissions, was not part of the evidence in the retrial.

12 The Court of Appeal did not say that the 2 ^nd Defendant was no longer a party to this matter. Ellis J. had dismissed the action as it relates to her, and this finding was not expressly disturbed. Nor did the Second Defendant take an active part in the Appeal.

13 The parties expressly agreed, after I raised the issue, that there is no question of liability on the part of the Second Defendant for me to determine and that no issue of law arises in relation to her. It was from the start Mr. Dunkley's position that the Second Defendant was not now involved in the trial. I raised the issue because in my view the manner in which the case had proceeded and the state of the pleadings made it unclear whether the Claimants were proceeding against the Second Defendant. The Statements of Facts and Issues prepared for the extensive pre-trial review which I conducted in January 2010 made no mention whatsoever of the Court being called upon to adjudicate on liability in relation to the Second Defendant. Indeed, on the first day of trial Mrs. McIntosh-Bryce, Attorney-at-law indicated that whilst she had received notice of the matter, and had acted for Mrs. Watkis in another matter, (the details of which I can't recall being given) she had no instructions in relation to this Suit.

14 However, the 1 ^st Claimants' Attorneys-at-Law appear to have reversed their position in their closing submissions where they say that they are asking for judgment against the Second Defendant. I am not prepared to deal with a claim against the Second Defendant. In any event, it is precisely because there was much initial argument before me as to whether the Second Defendant was at this stage a party in this trial that the Attorneys agreed their position. In fact, even at the pre-trial review I was assured by the parties that they were not proceeding against the Second Defendant at this time. The parties have the right to choose who they will proceed against. An indication in that regard must surely be something that the Court can rely on. The premise upon which the trial proceeded was that it did not involve the Court in considering liability against the Second Defendant. It cannot in my view be fair or permissible to now unilaterally and with hindsight, reverse that position at the stage of closing submissions, particularly having regard to the fact that the Further Amended Statements of Case referring to a Marital Settlement Agreement between Mr. Watkis and the Second Defendant were not served on the Second Defendant or her representative prior to trial. That would be to unravel the entire retrial of this 28 year old case which took place before me and would amount to a colossal waste of time.

15 Mr. Desnoes died before judgment was delivered in the first trial and Mr. Watkis died on or about the 21 ^st of December 2000. Ms. Marino Sakhno, was the executor to whom Probate of Mr. Watkis' estate was granted in 2004.

16 On the 13 ^th April 2010 an order was made that Marinha Sackno (Executrix in the Estate of Bertram Watkis) be substituted for the 1 ^st Defendant herein, and also, that Edith Desnoes, Executrix of the Estate of George Desnoes, be substituted for George Desnoes, deceased.

17 17 . It is important to have an understanding of precisely what is involved in this retrial. On the first day of trial, Counsel for all the parties were agreed as to what they considered to be the main issues before me.

18 18. The issues identified were these:

• (i) Whether or not Mr. Desnoes had the authority to act as Mr. Watkis' agent in relation to the sale of his property, in particular, the signing of the Agreement on his behalf;

• (ii) Alternatively, if there was no original agency, whether or not Mr. Watkis subsequently ratified the acts or purported agency by Mr. Desnoes;

• (iii) The applicability, and legal significance of, the Marital Settlement Agreement, and its factual interpretation by Kent Wheeler's Affidavit, an Attorney-at-Law licensed to...