Brady (Rupert) v Jamaica Redevelopment Foundation Inc., Dennis Joslin Jamaica Inc. and Harold Brady

• Jurisdiction: Jamaica
• Judge: PANTON, P. , SMITH, J.A. , COOKE, J. A.
• Judgment Date: 12 June 2008
• Neutral Citation: JM 2008 CA 40
• Judgment citation (vLex): [2008] 6 JJC 1203
• Court: Court of Appeal (Jamaica)
• Date: 12 June 2008

JAMAICA

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE PANTON, P THE HON. MR. JUSTICE SMITH, J.A THE HON. MR. JUSTICE COOKE, J.A

BETWEEN

RUPERT BRADY

APPELLANT

AND

JAMAICA REDEVELOPMENT FOUNDATION INC.

1 ^ST RESPONDENT

AND

DENNIS JOSLIN JAMAICA INC.

2 ^ND RESPONDENT

AND

HAROLD BRADY

ANCILLARY RESPONDENT

Raphael Codlin instructed by Raphael Codlin & Company for the appellant

Charles Piper and Miss Kanika Tomlinson for 1 ^st & 2 ^nd respondent

INJUNCTIONS - Real property - Mortgage - Validity and enforcement - Declaration that mortgage null and void - Discharge of mortgage - Whether claimant's signature forged

PANTON, P.

1 The second and ancillary respondents were not represented at the hearing of this appeal, wherein the appellant challenged a part of the decision of Almarie Sinclair-Haynes, J. made on February 14, 2007. By that decision, the appellant was granted an injunction against the first and second respondents, restraining them from disposing of property, registered in the names of himself and his brother Harold Brady at Vol. 1200, Folio 161 of the Register Book of Titles, until the trial of the action. That injunction was on condition that the appellant pay into court the sum of $14,226,046.35 on or before March 31, 2007.

2 The order of the learned judge stemmed from a claim filed by the appellant on April 4, 2005, in the Supreme Court. By that claim, the appellant is asking the court to decide whether mortgage no. 775274 registered on the certificate of title mentioned above is valid and enforceable against him. He is also seeking a declaration that the said mortgage is null and void, and an order that it be discharged from the title.

3 It should be added that the first and second respondents are disputing the appellant's right to the reliefs that he is seeking and have counterclaimed for a declaration that the first respondent is entitled to exercise all rights as mortgagee by assignment in respect of funds obtained by the appellant's brother Harold, and allegedly guaranteed by the appellant, from the now defunct Workers Savings and Loan Bank.

4 Before us, the appellant has challenged that part of the order of the learned judge which required him to pay into court the sum previously mentioned. The challenge is based on the appellant's undisputed evidence that he did not sign the relevant mortgage documents, and had not given his brother Harold any authorization to pledge the property, or to use his (the appellant's) name to secure money from the bank or to guarantee repayment.

5 The learned judge, in her judgment, (at page 7A of the Record) said the following:

(a) "The court is of the view that the claimant has sufficiently particularized his claim of fraud. He has failed to state who the perpetrator is. However, he can only present his case according to the facts he is aware of."

(b) "I am satisfied that the allegation that the claimant was never a party to the transaction and that his signature was forged is a serious question to be tried on its merit..."

In the light of the above conclusions, the learned judge reasoned that in the circumstances it would be unjust to allow the property to be sold before the trial of the action. She expressed the view that where the allegation was that the guarantor's signature had been forged, justice demanded a "flexible approach".

6 The learned judge referred to leading authorities in this area of the law, including Flowers Foliage & Plants of Jamaica Ltd. & Others v Jamaica Citizens Bank Limited (1997) 34 J.L.R. 447, and concluded thus:

"It is clear from the foregoing that there is no inflexible rule which requires that the sum of money claimed by the mortgagee should be paid into court as a requirement for the granting of an injunction at the request of the mortgagor". (p.11A of the Record of Appeal)

She then went on to state that in the instant case the bank advanced its monies to liquidate two earlier mortgages on the property which is jointly owned by the appellant and his brother (so)...

"The money was therefore used towards the property which he, the (appellant) owned. Mr. Harold Brady did not apply the loan to benefit himself solely. In the circumstances Dr. Brady would have derived a benefit, albeit ignorantly. Having so benefited equitable principles of fairness would dictate that the sum by which he benefited be repaid even though he alleges he was an ignorant beneficiary to the whole transaction".

7 In ordering as she did, the learned judge disregarded the very principle which she had gleaned from Flowers Foliage & Plants (supra). The relevant facts therein were that summary judgment had been entered by Reid, J., in the Supreme Court in favour of the bank for a substantial sum of money. However, there were serious issues to be tried. An application for a stay of execution of the judgment was dismissed by Chester Orr, J., the Senior Puisne Judge. Thereafter, an appeal was filed, and Downer, J.A. granted an unconditional stay of execution of the judgment. A motion to discharge the order of Downer, J.A. was dismissed by the...