Anthony Tharpe v Alexis Robinson

• Jurisdiction: Jamaica
• Judge: A. Nembhard J
• Judgment Date: 20 May 2022
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. SU 2019 CV 04009

Between

(1) Anthony Tharpe

1 ^st Claimant

(2) Successors in the interest of

(3) Business Ventures & Solutions Inc.

(4) All Damaged Parties; Judgment Creditors

Claimants

and

Alexis Robinson

1 ^st Defendant

and

Myers, Fletcher & Gordon

2 ^nd Defendant

and

John Graham

3 ^rd Defendant

and

John Graham and Company

4 ^th Defendant

and

Suzette Spence

5 ^th Defendant

and

Nicola Delapenha

and

All Named and Unnamed Parties with Interest Cold Well Banker

Defendants

[2022] JMSC Civ 66

CLAIM NO. SU 2019 CV 04009

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Civil procedure — Striking out — Application to strike out claimants' statement of case — Whether the claimants' statement of case ought properly to be struck out — The approach of the court in dealing with an application to strike out — Whether the 1st claimant has the requisite standing to bring the claim — Whether the claimants have sufficiently particularized the claim — Whether the claimants' statement of case as framed constitutes an abuse of the process of the court — Whether the claimants' statement of case is prolix, frivolous and vexatious and without merit — Whether the claimants' statement of case discloses any reasonable grounds for bringing the claim

Summary judgment — Whether in the alternative the court should grant summary judgment in favour of the defendants against the claimants — The approach of the court in dealing with an application for summary judgment — Whether the claimants' claim has any real prospect of success

Burden — Burden of proof — Standard — Standard of proof — Civil Procedure Rules, 2002, rules 8.7, 8.9(1), 15.2, 15.3(4) and 26.3(1)

IN CHAMBERS

The Respondent/1st Claimant appears in person

Messrs. Maurice Manning Q.C. and François McKnight instructed by Messrs. Nunes, Scholefield, DeLeon & Co. for the Applicants/1st and 2nd Defendants

Ms Peta-Gaye Manderson instructed by Messrs. John G. Graham & Company for the 3rd and 4th Defendants

Mr Wendell Wilkins instructed by Messrs. Robertson Smith Ledgister & Company for the 5th Defendant

A. Nembhard J

1 The hearing of the Notice of Application for Court Orders to Strike out Claimants' Statement of Case and/or for Summary Judgment, which was filed on 24 July 2020, was first listed before this Court on 25 April 2022. At that time, the Respondent/Claimant, Mr Anthony Tharpe, who is a self-represented litigant, indicated to the Court that he filed certain documents via Federal Express (“FEDEX”). He enquired of the Court whether the Court was in receipt of those documents, whether on its physical or digital file.

2 A careful examination of the Court's physical and digital files did not reveal the presence of any affidavit evidence or written submissions and authorities that had been filed by Mr Tharpe, in respect of the Notice of Application for Court Orders, which was filed on 24 July 2020. Mr Tharpe was unable to specifically identify the documents which he contends were filed via FEDEX. Nor was he able to communicate the specific content of the respective documents which he contends were filed on his behalf. Mr Tharpe was equally unable to indicate with whom in the Registry of the Supreme Court of Judicature of Jamaica these documents were filed or in which Division of the Supreme Court the documents were filed.

3 That, notwithstanding, Mr Tharpe indicated to the Court that it could proceed with the hearing of the Notice of Application for Court Orders to Strike out Claimants' Statement of Case and/or for Summary Judgment, which was filed on 24 July 2020. Mr Tharpe indicated that he was duly served with the application, the supporting affidavit as well as the written submissions and authorities filed on behalf of the Applicants/1 ^st and 2 ^nd Defendants. He indicated, as the Court understood him, that he was in a position to respond to the application and to adequately address the issues raised therein. The Court cautioned Mr Tharpe that, if it were to proceed to hear the application, there would be no subsequent opportunity for the Court to have regard to the content of the documents of which he spoke and further, that the Court was unable to make a judgment call as to whether proceeding in the absence of these documents would be in his best interest, as the Court was unaware of and unable to speak to the content of these documents. In the face of the caution that was administered by the Court, Mr Tharpe remained resolute that the Court should proceed with the hearing of the application.

4 Up to the time of the delivery of the Judgment of the Court, in respect of the Notice of Application for Court Orders to Strike out Claimants' Statement of Case and/or for Summary Judgment, which was filed on 24 July 2020, no documents were presented to the Court as having been filed by Mr Tharpe. The Court's enquiry of the Civil Registry did not reveal that any documents had been filed by Mr Tharpe, in respect of the application.

INTRODUCTION

5 This is an application to strike out the Claimants' Statement of Case. The application is made by the 1 ^st and 2 ^nd Defendants, Mrs Alexis Robinson and the Law Firm, Myers, Fletcher & Gordon, respectively. In the alternative, the Applicants/1 ^st and 2 ^nd Defendants seek Summary Judgment in their favour against the Claimants.

6 The application is contained in a Notice of Application for Court Orders to Strike out Claimants' Statement of Case and/or Summary Judgment, which was filed on 24 July 2020. The Applicants/1 ^st and 2 ^nd Defendants, Alexis Robinson and Myers, Fletcher & Gordon (A Firm), respectively, seek the following Orders against the Respondents/Claimants, Anthony Tharpe, Successors In The Interest Of, Business Ventures & Solutions Inc., All Damaged Parties and Judgment Creditors: -

The application is supported by the Affidavit of Alexis L. Robinson in Support of Notice of Application for Court Orders, which was also filed on 24 July 2020.

• (i) That the Claimants' Claim Form and Particulars of Claim both filed on October 14, 2019, in relation to the 1 ^st and 2 ^nd Defendants, ALEXIS ROBINSON and MYERS, FLETCHER & GORDON (A Firm) be struck out and judgment entered in favour of the 1 ^st and 2 ^nd Defendants, ALEXIS ROBINSON and MYERS, FLETCHER & GORDON (A Firm);

• (ii) In the alternative, that Summary Judgment be entered in favour of the 1 ^st and 2 ^nd Defendants, ALEXIS ROBINSON and MYERS, FLETCHER & GORDON (A Firm) against the Claimants;

• (iii) Costs to the 1 ^st and 2 ^nd Defendants, ALEXIS ROBINSON AND MYERS, FLETCHER & GORDON (A Firm), to be taxed, if not agreed;

• (iv) A stay against the Claimants bringing any further proceedings against the Applicants pending the payment of said costs; and

• (v) Such further or other relief as this Honourable Court deems fit.

THE ISSUES

7 The application raises the following issues for the Court's determination: -

• (i) Whether the Claimants' Statement of Case ought properly to be struck out; or

• (ii) In the alternative, whether the Court ought properly to enter Summary Judgment in favour of the Applicants/1 ^st and 2 ^nd Defendants against the Respondents/Claimants.

8 In order to determine the issues raised, the following sub-issues must also be resolved: -

• (i) Whether Mr Tharpe has the requisite locus standi to bring the Claim in the name of Business Ventures & Solutions Inc.;

• (ii) Whether the Claimants have sufficiently particularized the Claim;

• (iii) Whether the Claimants' Statement of Case is prolix, frivolous and vexatious;

• (iv) Whether the Claimants' Statement of Case constitutes an abuse of the process of the court;

• (v) Whether the Claimants' Statement of Case discloses any reasonable ground(s) for bringing the Claim; and

• (vi) In the alternative, whether the Claimants have any real prospect of succeeding on the Claim.

BACKGROUND

The ownership of Business Ventures & Solutions Inc.

9 The application is made against the background that Mr Tharpe was previously a Director of Business Ventures & Solutions Inc. (“BVS”), a company that was duly incorporated in the United States of America and in which he held a one hundred percent (100%) share of the legal interest. On 3 January 2006, BVS entered into an Agreement for Sale to purchase real property situate at 15 Queens Drive, Montego Bay, in the parish of Saint James, being the land comprised in Certificate of Title registered at Volume 665 Folio 10, Volume 665 Folio 11 and Volume 650 Folio 65, respectively, of the Register Book of Titles (“the Property”).

10 Pursuant to that Agreement for Sale, the vendor, Mr David Rubin, the then executor and trustee of the Estate and Trust of the late Alexander Mortimer Burnham (“the Alexander Burnham Trust”), was the registered proprietor of the Property up to the time of his death on 2 February 1975. The parties agreed to a purchase price of Four Hundred and Seventy Thousand United States Dollars (USD$470,000.00). This amount was to be paid by way of a deposit in the sum of Forty-Seven Thousand United States Dollars (USD$47,000.00) and a further payment of Thirty-Seven Thousand United States Dollars (USD$37,000.00) upon signing. The balance of Three Hundred and Eighty-Six Thousand United States Dollars (USD$386,000.00), was to be paid on completion, ninety (90) days from the date of signing of the Agreement for Sale.

11 On or about 6 April 2006, the titles to the Property were transferred to BVS, on the assurance of a purported undertaking, given on behalf of BVS, by a mortgage corporation in Florida. BVS and its then principal, Mr Tharpe, failed to pay the balance of the purchase price.

12 This failure led, in part, to the initiation of litigation in Claim No. 2010 HCV 02692 which was brought by Capital One NA (“Capital One”), the successor administrator and trustee of the Alexander Burnham Trust. The claim was initiated against BVS, Mr Tharpe and Ms Jacqueline Buchanan. By virtue of that claim, Capital One sought, inter alia, the...