Chambers (Alfred) v Sarah Brown

• Jurisdiction: Jamaica
• Judge: HARRIS, JA , BROOKS, J.A. (Ag) , PANTON, —
• Judgment Date: 20 December 2010
• Judgment citation (vLex): [2010] 12 JJC 2001
• Date: 20 December 2010
• Court: Court of Appeal (Jamaica)

[2010] JMCA Civ 51

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR JUSTICE PANTON, P THE HON. MRS JUSTICE HARRIS, J.A THE HON. MR JUSTICE BROOKS, J.A. (Ag)

BETWEEN

ALFRED CHAMBERS

APPELLANT

AND

SARAH BROWN

RESPONDENT

Alando Terrelonge, Miss Audré Reynolds and Miss Kristina Exell instructed by Patrick Bailey and Co. for the appellant

Lawrence Haynes for the respondent

AGREEMENTS - Sale of property - Rescission - Recovery of possession - Damages

PANTON, —

1 I have read the judgment of my learned brother, Brooks, JA (Ag). I agree and have nothing to add.

HARRIS, JA

2 I too agree with the judgment of my learned brother and have nothing to add.

BROOKS, J.A. (Ag)

3 [1] On 9 April 1984, Mr Alfred Chambers entered into an agreement to sell on interest in land to Mrs Sarah Brown. The agreement was embodied in document drafted by Mr Chambers. The agreement was not completed and there is conflict as to the rights of each party thereto. Mr Chambers brought a claim in the Supreme Court against Mrs Brown. The claim was for, principally, a declaration that the agreement had been rescinded and an order that the purchaser deliver up possession of the subject parcel of land. The claim was tried and judgment, with an award of damages, given for Mrs Brown on her counter-claim. Mr Chambers is dissatisfied with that judgment and has appealed. Mrs Brown has, herself, filed a counter-notice of appeal.

4 The facts

5 [2] On the date of the agreement, Mr Chambers was one of the registered proprietors of the land in question; No. 22 Cedar Valley Rood in the parish of Saint Andrew. At that time, Mrs Brown was Mr Chambers' tenant at the premises. She had leased a "house spot" from him, there.

6 [3] The agreement is sufficiently short to justify quoting it in full. What appears below, including the underlining, is a faithful reproduction of the relevant portion.

"Agreement for sale of the bock of the premises over the Gully known as 22 Cedar Valley Rood Kingston 6.

To Mrs. Sarah Brown who is at present Leasee to Mr. Alfred Chambers

The Agreement for the sale of the portion of the land of the back of the land over the gully, known as 22 Cedar Valley Road which Mrs Sarah Brown has now occupied.

The Sale Price of the said Spot is Three Thousand Five Hundred Dollars (3,500.00) which have been paid off by the said Mrs Sarah Brown. Mr. Alfred Chambers as agreed to cut off that portion of land which Mrs Sarah Brown was a leasee at a later date, when a proper document will be drawn up and Survey done."

7 The document was signed by both parties. It was stamped, as an agreement for sale, by the Stamp Commissioner, on 1 September 1987. Mrs Brown paid the purchase price, in instalments, over the course of two years.

8 [4] The subsequent correspondence between the parties reveals, that by March 1996, the survey required to hove the land subdivided had not been done. Mr Chambers was, by that time, resident in Canada and had, by then, numerous complaints about the state of affairs concerning the property. Among those complaints were the allegations that Mrs Brown's children had built structures on the property without his permission and that bills for water consumption were being incurred but were not being paid. Apart from her status as purchaser, Mrs Brown was also his agent, up until 1995, in respect of matters concerning the land.

9 [5] Mr Chambers informed Mrs Brown in a letter of 26 March 1996 that government permission would not be given for the transfer of title to her. In April 1997, he sent her, through his attorneys-at-law, a cheque (bearing date 11/4/97), purporting to refund to her the purchase price which she had paid. The covering letter for the cheque is said, by the Statement of Claim, to have been dated 14 ^th April 1997. Mrs Brown did not negotiate the cheque and remained in possession of the land.

10 [6] In August 1997, Mr Chambers filed a plaint in the Resident Magistrate's Court for the Corporate Area to recover possession of the land from Mrs Brown. The claim failed. It was determined on 2 June 1998 with "Judgment for the Def." according to the relevant page of the court sheet for that date.

11 The Claim

12 [7] It was on 31 August 1998 that Mr Chambers filed his claim in the Supreme Court. In that claim he averred that he had rescinded the contract for sale and requested possession of the land, but despite that the purchaser "has failed to treat the contract as rescinded and has failed to redeliver possession of the house spot to" him. He sought, among other remedies, a declaration that the contract had been rescinded and an order for recovery of possession of the property.

13 [8] The defence to the claim was that the parties did indeed have a contract; that based on the contract Mrs Brown had converted her wooden dwelling house to a concrete structure; that she had had "long continuous and undisturbed possession for many years and [had] exercised such rights of ownership since [the time of the Agreement for Sale]"; that Mr Chambers did not seek to obtain subdivision approval and as a result was not entitled to rescind the contract; that she was ready, willing and able to complete the contract; and that by virtue of the judgment in the Resident Magistrate's Court Mr Chambers was estopped from pursuing the Supreme Court claim against her. She counter-claimed for specific performance of the agreement for sale and in the alternative for damages for breach of contract and other consequential orders. It is apparent that in the court below there was also a question of fact concerning whether the land, which was the subject of the contract, was just a 'house spot' or was the entire rear section of the registered land.

14 The judgment

15 [9] The learned trial judge dismissed Mr Chambers' claim and gave judgment for Mrs Brown on her counter-claim. He however refused her claim for specific performance and ordered that she be paid damages of $2.5M in lieu thereof. She was ordered to vacate the property within six months of receiving payment of the damages. The essence of the reasons behind the judgment was:

• a. Mrs Brown had been in possession of the property in one capacity or another from 1974 to 2009 and in "undisturbed possession from 1984 to 1997, a period of 13 years";

• b. Mr Chambers, having failed to obey an order of the Resident Magistrate to obtain subdivision approval of the land, was in "contempt of court";

• c. as Mr Chambers was not the sale registered proprietor and there was no certainty that subdivision approval would be granted, an order for specific performance would not be practical and damages would "have to suffice".

16 The appeal

17 [10] Mr Chambers filed five grounds of appeal. They were:

"(a) The Learned Judge commenced the trial having pre-determined the issues, and approached the trial with a closed mind.

(b) The Learned Judge failed to consider and/or to properly consider the written submissions made on behalf of the Claimant.

(c) The Learned Judge erred and/or misdirected himself in finding that the Respondent was entitled to Specific Performance, on the evidence before the Court.

(d) The Learned Judge erred and/or misdirected himself in finding that the Respondent had earned rights to the property in question before the court, by way of adverse possession against the Appellant and/or his wife who were the registered owners of the property.

(e) The Learned Judge erred and/or misdirected himself in finding that the Appellant was in contempt of court in regard to orders granted previously in the Sutton Street Resident Magistrate's Court."

18 [11] Mrs Brown filed two grounds for her appeal, namely:

"(a) That the Learned Trial Judge erred in law when he directed that in lieu of Specific Performance the Claimant was to pay the Defendant the sum of Two Million Five Hundred Thousand Dollars ($2,500,000.00) in exchange for the Defendant giving up possession...to the Claimant. That having found that the Defendant had in fact dispossessed the Claimant of that portion of land over a period in excess of twelve (12) years it was no longer legally possible for the Trial Judge to award Specific Performance or damages upon a contract that was no longer subsisting.

(b) That there was sufficient evidence before the Learned Trial Judge to make a finding that the contract between the parties had been discharged by substantial performance, the Defendant having paid the purchase price and the Claimant having placed her in possession. That the contract having been discharged no action could lie either by the Claimant or Defendant to enforce any term or condition which remained unfulfilled."

19 [12] In light of my views on grounds (c) and (d) of Mr Chambers' grounds of appeal, I need not consider the first two, which I would be reluctant to consider...