Blue Haven Enterprises Ltd v Tully (Duclie Ermine) et Al
| Jurisdiction | Jamaica |
| Judge | DOWNER, J.A. , WALKER, J.A: , HARRISON, J.A: ,Downey J.A. |
| Judgment Date | 29 September 2003 |
| Judgment citation (vLex) | [2003] 4 JJC 1104 |
| Court | Court of Appeal (Jamaica) |
| Date | 29 September 2003 |
SPECIFIC PERFORMANCE - Agreement for sale - Declarations - Resulting trust - Whether original sale of agreement was registered - Record of Deeds, Wills and Letters Patent Act, sections 2 and 6
INTRODUCTION
The property, the subject matter of this prolonged litigation, is a coffee orchard of ninety-five acres in the parish of Portland. Dulcie Ermine Tully, the first defendant, is the executrix of the estate of Cyril Lorenzo Shirley and his wife, the original owners of the property. Ms. Tully agreed to sell the property to Eric Clive Robinson and then purported to cancel the agreement which was dated 14 th November, 1985. The agreement is exhibited at page 138 of the Record. In the litigation of this issue between Ms. Tully and Robinson, the latter was successful. See Dulcie Tully et al v Eric Robinson (1992) 29 J.L.R. 268 . Ms. Tully invoked the jurisdiction of the Privy Council by way of Petition for special leave. Robinson was successful in having the Petition dismissed 10 th March, 1993: see page 157 of the Record.
As a result of further decisions by the Supreme Court and this Court, in his favour, Robinson, the second respondent in this appeal, secured a registered title to the land. It was registered at Volume 1278 Folio 155 on the 21 st day of July 1995. He also obtained an order of possession for the orchard against the appellant, Blue Haven Enterprises Ltd. A point worth emphasizing is that Robinson has been at pains to seek the assistance of the Court at every stage of these proceedings, firstly, against Ms. Tully and then against the appellant hereinafter referred to as "Blue Haven".
How did the appellant come to be in possession?
When Ms. Tully, the first defendant, purported to cancel the agreement for sale with Robinson, the second respondent, she entered into an "agreement" dated 5 th January 1988 with Dr. White and his nominee, for the sale of the property. Dr. White was given a letter of possession. He made extensive improvements to the property. More particularly, Dr. White planted coffee, built a coffee storage tank, constructed a road, cleared foot-paths and built houses for workers. All this was done on unregistered land on the strength of a contract. There was no conveyance to Blue Haven. The inference to be drawn is that Blue Haven the appellant was confident that it would receive a registered title in due course. This introduction of the parties to this appeal and the property in dispute is sufficient background to consider the issues. Perhaps it should also be added that Blue Haven Enterprises Ltd. was incorporated on 28 th July 1988. This company was the nominated transferee on the Instrument of Transfer at page 22 of the Record. This Instrument purported to transfer the property to the appellant company for $450,000. Blue Haven therefore became a rival claimant to the legal and equitable interest to the property in dispute.
Proceedings in the Court of Appeal
Langrin J., as he then was, heard the action between Blue Haven Enterprises Ltd., the Executrix and Eric Clive Robinson. Blue Haven sought specific performance of its agreement, damages and declarations against the first respondent. With respect to Robinson an account was sought. See pages 32–34 of the Record for Statement of Claim. The order of the Court below at page 163 of the Record was as follows:
"1. That the Plaintiff's claim against the Second Defendant be dismissed.
2. That there be judgment for the Plaintiff against the First Defendant in the sum of $20,000,000.00 as damages with costs to be agreed or taxed.
3. That the Second Defendant's costs be paid by the First Defendant, such costs to be taxed if not agreed,"
No appeal has been instituted against that part of the order which made an award of $20,000,000.00 with taxed or agreed costs against the Executrix.
The starting point in this appeal ought to be the fact that the respondent Robinson holds a registered title and was put in possession by a Court Order in January 1997. On the other hand, the appellant relies on the following Notice dated September 29, 1988 at page 51 of the Record. This was issued by Mr. Fraser the lawyer on behalf of the first defendant:
TO WHOM IT MAY CONCERN
This is to certify that OSWALD PERCIVAL WHITE and/or his Nominee is entitled as of the date hereof to possession of ALL THAT parcel of land part of SHIRLEY CASTLE in the Parish of Portland containing by survey 95 acres 2 Roods and 33.64 Perches butting and bounding as appears by the Plan bearing Survey Department Examination Number 203830 and prepared by Mr. Donald J. Marks, Commissioned Land Surveyor."
This notice ought to have been withdrawn once Gordon J. awarded an injunction to Robinson on 11 th January 1989. It seems there was a failure by Mr. Fraser, Ms. Tully's lawyer to inform Mr. Ross the lawyer for Blue Haven of the litigation between Ms. Tully and Robinson.
It was primarily on the basis that Robinson holds the registered title to the property that Langrin J. dismissed Blue Haven's claim. Before he obtained the registered title he had secured an injunction from Gordon J. which led to an order of specific performance and an order for possession of the property from Edwards J.
The basis of the appellant's case in this Court was reliance on a claim for an equitable interest. The property being unregistered land originally, there was a failure to register a conveyance between Tully and Robinson. The equity Blue Haven Enterprises Ltd., claimed was acquired because Dr. White paid Ms. Tully and was put in possession. The issue of registration is raised because the property was not brought under the Registration of Titles Act until 20 th November 1991: see page 87 of the Record.
The basis of the appellant's case in this Court was the Rule in Ramsden v. Dyson and the doctrine of resulting trusts.
The relevant grounds of appeal at pages 2–3 of the Record read thus:
"2. The Learned Judge misdirected himself when he failed to deal adequately, or at all, with the right of a bona fide purchaser for valuable consideration without notice of a prior interest in the land.
3. The Learned Judge did not address submissions made to him to the effect that where competing equities are equal, the position of the possessor is the better.
4. The Learned Judge misdirected himself when he held that the Second Defendant/Respondent was the person with whom the Plaintiff/Appellant was required to have the dealings before the Plaintiff/Appellant's claim could be valid.
5. The Learned Judge misdirected himself in dealing with the rule in Ramsden vs. Dyson when he held that two of the basic ingredients in that rule were missing not proved by the Plaintiff/Appellant, yet he did not mention which two of those ingredients are missing.
6. The Learned Judge misdirected himself when he held that, the property having been sold to the Plaintiff/Appellant by the First Defendant/Respondent at the time when the First Defendant/Respondent was the legal owner of the property, nothing passed to the Plaintiff/Appellant although the Plaintiff/Appellant did not know of the Second Defendant/Respondent's interest."
In the face of the registered title in favour of Robinson, the appellant could not claim a legal title. So it was sought to have recourse to equity in order to establish an equitable interest.
To reiterate, Dr. White was given a letter of possession to the property by the lawyer for the first defendant. That letter was dated September 29, 1988. It is important to note that the agreement between Robinson and Ms. Tully was dated November 4,1985.
The appellant relied on the provisions of sections 2 and 6 of the Record of Deeds, Wills and Letters Patent Act for the proposition that since the original agreement between Ms. Tully and Robinson was not registered, then Blue Haven, the appellant, had an equitable interest. That contention was given short shrift by Mr. Vassell Q.C. He stated that when section 2(1) of that Act was considered the deed which ought to have been registered would have been a conveyance of the land by Ms. Tully to Robinson. That section reads as follows:
"2.-(1) A deed made in due form of law and within three months after the date thereof acknowledged by the party or parties that grant the same or proved by the oath of one sufficient witness or more in accordance with law, and, recorded at length in the Record Office within the said three months, shall be valid to pass the same without livery, seisin, attornment, or any other act or ceremony in the law whatsoever.
(2) No deed made after the year 1681 without such acknowledgement or proof and recording, shall be sufficient to pass away any freehold or inheritance, or to grant any lease for above the space of three years."
Then section 6 reads as follows:
"6. All and every deed or deeds which shall be made or executed within this Island for any lands, tenements, or hereditaments whatsoever shall be duly proved or acknowledged, and recorded, within ninety days after the date or dates of such deed or deeds, otherwise to stand void and of no effect against all other...
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