Christopher Wood v Maria Grey Grant
| Jurisdiction | Jamaica |
| Judge | Staple J (Ag) |
| Judgment Date | 18 October 2023 |
| Court | Supreme Court (Jamaica) |
| Year | 2023 |
| Docket Number | CLAIM NO. SU2023CV01937 |
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[2023] JMSC Civ. 202
Staple J (Ag)
CLAIM NO. SU2023CV01937
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN CIVIL DIVISION
Injunction — Application for Injunction — Whether or not there is a serious issue to be tried — Adverse Possession — Limitation of Actions Act — Whether or not the Claimant has shown a case with a real prospect of success that his title was not defeated — Whether or not a purchaser in possession can be an adverse possessor.
Ms. Tavia Dunn with Ms. Allyandra Thompson instructed by Messrs Nunes, Scholefield, DeLeon & Co. Attorneys-at-Law for the Claimant/Applicant
Mr. Roderick Gordon with Ms. Kereene Smith instructed by Messrs. Gordon McGrath Attorneys-at-Law for the Defendant/Respondent.
Mr. Jalil Dabdoub instructed by Messrs Dabdoub, Dabdoub & Co for the Interested Parties.
So precious a commodity is land, let alone in the highly sought after area of Kingston 19 in St. Andrew Jamaica, that once obtained, the fight to retain possession is often engaged with a measure of desperation reserved only for the preservation of life.
The Defendant had lost a previous battle for the retention of a property known as Townhouse #43, G, Britney Manor, 11 Watervale Avenue, Kingston 19 in the parish of St. Andrew. That battle was fought in Claim No. 2014 HCV 03290 between herself (as Claimant in that suit) and the present Claimant (the Defendant in that suit) and another. The result of that case was encapsulated in the judgment of Evan Brown J (as he then was) which was delivered on the 25 th September 2020 1.
Undaunted by the obstacle of a judgment of the Supreme Court, the Defendant then proceeded to lodge Application No. 24323130 with the Registrar of Titles for title to the land to be given her by possession.
The Claimant has filed this Application to restrain the Registrar from proceeding with and granting such application pending the outcome of the substantive claim filed in this matter on the 16 th June 2023 seeking a declaration, inter alia, that the Defendant has absolutely no share in the said property.
The Defendant has filed a Defence on the 2 nd October 2023 to the effect that the Claimant has lost any right of re-entry to the said land by operation of the Limitation of Actions Act and so cannot bar her from obtaining the said title.
The task for this Court is to determine whether or not to grant the Claimant's application for the injunction pending the final determination of the substantive issues between the parties.
Much of the background facts are actually now confirmed as facts as a result of the findings from the previous trial before E. Brown J (as he then was). As such, I adopt the summary of the facts from paragraphs 3-6 of the Judgment of Evan Brown J (as he then was). I will set them out below for ease of reference.
[3] The dispute between the parties arose from the following admitted and/or undisputed facts. The claimant's father, Hershell Tasman Grey, died possessed of, among other properties, two parcels of land registered at Volume 1103 Folio 990 (Kembert Lodge) and Volume 644 Folio 52 (Innswood). Her father's estate fell to be administered by the Administrator-General of Jamaica. On or about 21 December 2005, the claimant contracted with the Administrator-General to purchase these two parcels of land, the former for $6m and the latter for $28.5m (the Administrator-General Agreements).
[4] On or about 26 January 2006, the claimant entered into an Agreement for Sale with the 1st defendant (the registered proprietor) to purchase townhouse G2, block - 3 - G, lot 43 on the subdivision plan of part of Swollowfield Estate, St. Andrew and being part of land registered at Volume 2377 Folio 152, later registered at Volume 1418 Folio 126 (the disputed property) for the consideration of $2m. Contemporaneously, the claimant entered into an Agreement for Construction of townhouse G2 with the 2nd defendant (of which the 1st defendant is a director) for the consideration of $11m. Clause 11 of this agreement stipulated that “the Builder shall in respect of the said townhouse credit the sum of … [$11m] against the indebtedness on a loan due and owing by the Builder to the Owner”. Under clause 12 the builder agreed that “the individual Certificate of Title for the 3bedroom townhouse shall be duly issued under the Registration of Titles Act, in accordance with the Subdivision Approval of the Kingston & St. Andrew Corporation and same shall be duly transferred to the Owner”.
[5] The claimant also executed a Nomination Agreement with the Administrator General in which she nominated the 1st defendant as the person entitled to receive the lands she contracted to purchase from the Administrator-General. Item three of the Schedule to the Nomination Agreement stated the contract price as $34.5m, the sum of the contract price for both parcels of land. Although the Nomination Agreement provided for the payment of the contract price to the claimant, it was accepted at the trial that the sums were paid directly to the Administrator-General. The lands were subsequently transferred into the name of the 1st defendant.
[6] Both the Agreements were properly executed by the parties. The townhouse was constructed and the claimant has been in possession. However, the claimant is yet to receive title.
The findings of fact from my learned brother in the above judgment were quite telling. He found, after hearing all the evidence in the case, that there was, as a matter of fact, no valid contract capable of enforcement because the Agreements for Sale were unstamped and stamp duty could not be assessed by the Court as the consideration was incapable of being ascertained. The chief reason (among other findings) as to why the Court could not calculate the stamp duty was the fact that the parties had actually not exchanged any cash, despite what was expressly stated in the unstamped Agreement for Sale.
The result therefore is that the Agreement for Sale were now void from inception. The Agreement for Sale exhibited at CW2 of the Affidavit of the Claimant filed on the 16 th June 2023 states at special condition 1 that it was a condition precedent to the coming into effect of the Agreement that it was to be (a) signed by the parties; and (b) the cash deposit and further payment on account of purchase paid.
Since neither of those things were found as a matter of fact to have occurred, then it stands to reason that there was never any Agreement for Sale in effect. I make that as my own finding as well.
Since the judgment, the Defendant has vacated the property. The tenants that she had put in possession there had been given notice to leave by the Claimant in 2021 and they obeyed the notice and left.
Following this, the Defendant removed a caveat she had lodged against the title on the 9 th July 2013 seeking to protect her interest as a purchaser in possession. She removed the caveat on the 3 rd June 2022.
But before so doing, she had actually served, through her former Attorneys-at-Law, on the Claimant's Attorneys-at-Law a Notice to Complete the said transaction. The Claimant's Attorneys-at-Law sharply rebuked her and refused to give cognizance to the Notice to Complete citing the judgment of Evan Brown J (as he then was).
The Defendant then lodged an Application with the Registrar of Titles to be declared the owner of the said property by adverse possession.
These are the essential facts of the case up to this point. They are not in dispute by the parties.
What is in dispute is the legal consequences that flow from these facts.
Both counsel in their submissions have admirably set out the law on injunctions. I also wish to thank all counsel for their helpful submissions and authorities provided. If I do not make detailed reference to the submissions, it is not to be taken as though they were not read or heard. I have read the authorities and taken the submissions into consideration.
As this is an application for an interim injunction, the Court had regard to the well-established guidelines from the celebrated cases of American Cyanamid Co v Ethicon Limited 2 and the judgment of Lord Diplock. This was further affirmed in the local Privy Council decision of NCB Limited v Olint Corporation 3 (hereinafter Olint). These considerations are:
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(i) Is the Claimant's case frivolous or vexatious? Meaning, is there a serious issue to be tried?
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(ii) If the answer to the above is no, then the injunction ought not to be granted. If the answer is yes, then I must next consider whether or not damages would be an adequate remedy.
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(iii) If there is no clear answer to the question of whether or not damages would be an adequate remedy to compensate either the Plaintiff or the Defendant, then I will go on to examine the balance of convenience generally;
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(iv) If, after considering the balance of convenience generally, the Court is still unable to come to a definitive conclusion, and there are no special factors, it is advisable to have the status quo remain.
In the case of Tapper v Watkis-Porter 4 Phillps JA stated that, “An analysis of the balance of convenience entails an examination of the actual or perceived risk of injustice to each party by the grant or refusal of the injunction”
Earlier in the said judgment at paragraph 36, she adumbrated and distilled the principles on the concept of the balance of convenience from the American Cyanamid and the Olint cases. I can do no better than to quote from the eminent jurist:
In considering where the balance of convenience lies, the court must have regard to the following:
(i) Whether damages would...
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