Bent (Rupert Mortimer) v Bent (Eunice Ramlochansingh)
| Jurisdiction | Jamaica |
| Judge | FORTE, P. , SMITH. 3.A.: , COOKE, J.A. |
| Judgment Date | 04 November 2004 |
| Neutral Citation | JM 2004 CA 35 |
| Judgment citation (vLex) | [2004] 11 JJC 0402 |
| Court | Court of Appeal (Jamaica) |
| Date | 04 November 2004 |
REAL PROPERTY - Beneficial interest in property - Breach of agreement - Whether there was an oral agreement - Whether the trial judge failing to give reasons for his decision amounted to good ground of appeal
Having read in draft the judgments of Smith and Cooke, JJAI agree with their reasoning and conclusion and consequently there is nothing I could usefully add.
I have had the advantage of reading the draft judgment of Cooke J.A. I agree with his analysis and conclusion. However, I wish to say a word in respect of Ground 5. This ground reads:
"The learned trial judge erred in law in falling to disclose the bases or reasons for his decision in the judgment delivered."
The primary task of the trial judge was to determine the beneficial interests of the parties in land situate at 25 Stilwell Road, Kingston 8 and registered in the names of both parties. The appellant claims to be entitled to one half share in the said property. On the other hand the respondent claims to be the sole owner of the beneficial interest in the property. The respondent bases her claim on an alleged oral agreement between the parties whereby the appellant agreed to give up his half interest in Stilwell Road in exchange for the respondent giving up her one half interest in property situate at 1343 Squire Drive, Ontario, Canada. According to the respondent, pursuant to this agreement she transferred her interest in Squire Drive to the appellant. The appellant denies the existence of such an agreement.
The critical issue therefore is whether or not there was such an agreement. The credibility of the parties was a major issue. The parties between them filed over twelve affidavits. Both were extensively cross-examined on their affidavits. The learned trial judge said:
"A resolution of the dispute before the court will largely depend on the findings that the court makes with regard to the terms of the agreement. It is necessary that the court examines the surrounding circumstances and the conduct of the parties in relation to the agreement before the matter can be resolved".
After "carefully considering all the evidence adduced along with the authorities cited" the judge accepted that there was an oral agreement as the respondent claimed. He gave no reason for so doing.
The question then is - When may the failure of a trial judge to give reasons for a conclusion essential to his decision, of itself, constitute a good ground of appeal.
The question was addressed in Flannery and Another v Halifax Estates Agencies Ltd. [2000] 1 All ER 373, a decision of the English Court of Appeal, I agree with the considerations canvassed in that judgment. The following is gleaned from the headnote. At trial the case centred entirely on a dispute between rival expert witnesses concerning the cause of cracks in the superstructure of a flat. Without providing any reasons for his decision, the judge stated that he preferred the evidence of the defendant's expert witness, and accordingly dismissed the claim. On appeal the plaintiff accepted that it had been open to the judge to conclude that the property had not suffered from structural movement, but they relied on his failure to provide any reasons for leaching such a conclusion.
The English Court of Appeal held:
"Where a failure by a judge to give reasons made it impossible to tell whether he had gone wrong on the law or the facts, that failure could itself constitute a self-standing ground of appeal since the losing side would otherwise be deprived of its chance of appeal. The duty to give reasons was a function of due process and, therefore, of justice. Its rationale was, first, that parties should not be left in doubt as to the reasons why they had won or lost, particularly since without reasons, the losing party would not know whether the court had misdirected itself and thus whether he might have any cause for appeal. Second a requirement to give reasons concentrated the mind, and the resulting decision was therefore more likely to be soundly based on the evidence. The extent of that duty depended upon the subject matter of the case. Thus in a straightforward factual dispute, which depended upon which witness was telling the truth, it would probably be enough for the judge to indicate that he believed the evidence of one witness over that of another. However, where the dispute was more in the nature of an intellectual exchange, with reason and analysis exchanged on either side, the judge had to enter into the issues canvassed before him and explain why he preferred one case over the other. That was particularly likely to apply in litigation involving disputed expert evidence, and it should usually be possible for the judge to be explicit in giving reasons in cases which involved such conflicts of expert evidence. In all cases, however, transparency should be the watchword. In the instant case the judge had been under a duty to give reasons and had not done so. Without such reasons, his judgment was not transparent and it was impossible to tell whether the judge had adequate or inadequate reasons for his conclusion. Accordingly, the appeal would be allowed and a new trial ordered."
In the instant case the appellant contends in grounds 1 and 3 that it was not open to the judge on the evidence to conclude that an agreement existed between the parties to the effect that the appellant would be the sole legal and beneficial owner of the property situate at Squire Drive and that the respondent would be the sole legal and beneficial owner of the property at Stilwell Road. In ground 2 the appellant complains that the learned judge failed to analyse the documentary evidence and to assess and analyse the inconsistencies in the oral evidence.
It seems that ground 5 is pleaded in the alternative in the event of the Court finding against the appellant in grounds 1,2 & 3. Thus only if the Court ruled against the contentions of the appellant in grounds 1,2,& 3 would ground 5 be of importance.
The main thrust of the appellant's argument in ground 5 is that the judge ought to have given reasons for his conclusion that there was an agreement as alleged by the respondent. It is important to note that the Court held in Flannery that the duty to give reasons was a function of due process and, therefore, of justice. The failure to give reasons may itself constitute an independent ground of appeal. Thus even if the appellant had conceded that it was open to the learned trial judge on the evidence to conclude that there was such an agreement as alleged by the respondent, the appellant was still entitled to rely on this ground.
As I have stated before the critical issue is whether or not there was such an agreement as alleged by the respondent. An examination of the affidavit evidence, the documents and the viva voce evidence shows that the case involved a straightforward factual dispute, which depended upon which party was speaking the truth. The dispute was certainly "not in the nature of an intellectual exchange with reasons and analysis exchanged on either side" such as was likely to apply in litigation involving disputed expert evidence. In a case involving conflicts of expert evidence the judge would be expected to enter into the issues canvassed before him and explain why he preferred one case over the other.
In the instant case which involves a straightforward factual dispute it is probably enough though certainly not desirable for the judge to indicate that, having "carefully considered all the evidence adduced along with the authorities cited" he accepted the respondent's evidence.
Accordingly, in my judgment ground 5 fails. For the above reason and of course those given by Cooke JA, I would dismiss this appeal.
I may add that in Samuel Scott v Gladpole Simpson SCCA No. 3 of 2001 delivered July 30, 2004 this Court endorsed the observations made per curiam in the Flannery case that where the Notice of Appeal indicates that a "no reasons" point is...
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