Cooper et Al v Management Communications Systems Ltd

• Jurisdiction: Jamaica
• Judge: Carey, J.A.,Campbell, J.A.,Downer, J.A.
• Judgment Date: 12 June 1989
• Neutral Citation: JM 1989 CA 102
• Docket Number: Civil Appeal Nos. 29 and 31 of 1989
• Court: Court of Appeal (Jamaica)
• Date: 12 June 1989

Court of Appeal

Carey, J.A.; Campbell, J.A.; Downer, J.A.

Civil Appeal Nos. 29 and 31 of 1989

Cooper et al

and

Management Communications Systems Limited

Appearances

Miss Hilary Phillips & Mrs. Denise Kitson for 1 ^st appellant (the affected third party).

Dennis Morrison for the 2 ^nd appellants.

Emile George, Q.C., & Randolph Williams for respondent.

Practice and procedure - Trial judge dismissed an application by the defendants to dissolve an injunction and an application by a third party to have the said injunction granted — appellants appealed — Finding that the trial judge had not erred and the appeal of the defendants should be dismissed — Third party not having shown that he was an “innocent purchaser” would not be entitled to succeed.

Carey, J.A.

1 These are appeals from orders made by Orr, J. (Ag.) in the Supreme Court dated 28 ^th March, 1989 whereby he dismissed –

• i) an application by the Howards (the defendants) to dissolve an injunction granted on 16 ^th February, 1989 by Bingham, J.;

• ii) an application by Kingsley Cooper, a third party affected by the said injunction, to have the said injunction granted as afore said, dissolved, and removed;

• iii) an order for suspension of the said injunction made on 24 ^th February, 1989 by Bingham, J.

2 The order for injunction has its genesis in an action which was begun in the Supreme Court by Management Communications Systems Limited (the plaintiffs) against Fitzgerald Hope Howard and his wife, Lois Angela. The plaintiffs claimed “specific performance of an agreement between the plaintiffs and the defendants dated the 12 ^th of January, 1985, providing for the sale by the defendants to the plaintiff of property, situated at No. 30 Hillcrest Avenue, Kingston 8.” On 6 ^th February, the plaintiffs obtained an interim injunction in the following terms:–

“It is ordered that–

• 1. The defendants be restrained whether by themselves, their servants or agents or otherwise from doing the following acts or any of them that is to say:–

  • (i) selling, negotiating for the sale of, disposing, leasing, parting with possession or dealing with the property situated at No. 3 Hillcrest Avenue, Kingston 6 otherwise then by selling the same to the plaintiff

  • (ii) trespassing on the said land by passing and repassing over it, changing the locks on the doors of the premises and committing any waste, or deterioration of the said property.

    for ten days from the date hereof.”

3 At the subsequent inter partes hearing before Bingham, J., on 16 ^th February, that interlocutory injunction was ordered continued until after the trial of the action. On the 20 ^th February, the defendants applied to have that interlocutory injunction dissolved and on the 7th February, a similar application was made by Kingsley Cooper described as the “affected third party”. Those applications resolved in a manner adverse not only to the defendants in the action, but also to the affected third party.

4 Each appeal will be considered separately and I begin with a chronicle of the facts relevant to the defendants' appeal from the affidavits and pleadings filed on behalf of the parties. At the ex parte hearing on 6 ^th February, 1989, the affidavit deposed to by Lloyd Beresford Hunter, President of the plaintiff company, showed, that day a 2 year lease agreement, the parties agreed to the rental of promises situate at Hillcrest Avenue in the parish of St. Andrew. This agreement included an option to purchase and recited the manner and time for the exercise of that option, in those terms:

“The Lessee may exercise the option to purchase the leased premises with ninety (90) days written notice to the lessors of the intention to purchase at any time during the term of this lease agreement and upon the payment by the lessee to the outstanding purchase price, after application of the total sums paid in monthly instalments under this Lease Agreement, in accordance with Paragraph two (2) herein, so long as said option to purchase be exercised no later than ninety (90) days prior to the expiry of this Agreement”

5 The plaintiffs took possession of the premises on 20 ^th January, 1985. Both before and after the expiry of the lease, Mr. Howard expended considerable sums in respect of the premises, at the request of, and with the concurrence of the defendants. On 1 ^st December, 1986 Dr. Hunter intimated to Mr. Howard that he intended to purchase the premises under the option and requested him “to make arrangements to close the sale.” Mr. Howard promised to advise him when the sale would be closed and indeed on 21 ^st December, 1986, they agreed to close the sale. On the 6 ^th January, 1989, Dr. Hunter said he received a request to deliver the keys to the premises to a third party, whom he learnt, was also negotiating for the purchase of the property but he did not comply with the request. On 12 ^th January when he spoke with Mr. Howard, he learnt that there were three other prospective purchasers, that he was first in time but that Mr. Howard desired a higher price. On the next day Mr. Howard advised him that his wife was no longer interested in selling to him. On the day following that intelligence, the locks were changed.

6 When the matter come before Bingham, J., subsequently as an inter partes hearing no further material was put before him. The only issue argued before him was whether the plaintiffs could maintain their claim for specific performance seeing that they had not exercised the option under the lease. Further, they had not given the required notice to exercise the option and when they sought to do so, it was taken too late. The judge found as he was perfectly entitled to do, however, that there was a serious triable issue and granted the injunction. No appeal was taken from that order, but the defendants applied instead to dissolve the order. The ground upon which that application was made was stated thus:

“11. That I am advised and verily believe that the interlocutory injunction herein was obtained on the basis of a material misrepresentation or omission in that the affidavit of Mr. Hunter failed to disclose that all payments made by the plaintiff on the defendants' behalf were to be set off against rental has in fact ever been paid by the plaintiff directly to the defendants over the entire four year period. That this information is most relevant in that it shows that monies paid by the plaintiff were attributable to the relationship of landlord and tenant and not vendor and purchaser.”

7 There is no doubt that one of the grounds for dissolution of an injunction is an injunction is where it was granted on a suppression or misrepresentation of material facts. The learned judge was not impressed by that ground and dismissed the application holding that when the defendants were before Bingham, J., at the inter partes hearing, they were entirely at liberty to supply any facts suppressed by the plaintiffs.

8 Before us, Mr. Morrison pinned his faith not so much on the validity of any argument regarding suppression of material facts on the part of the plaintiffs but rather on the argument that where the material before the judge disclosed no basis for success, then no injunction should be granted. On the evidence presented, it was plain, he said, that the option had not been validly exercised.

9 Attractive though they appear, those arguments advanced by Mr. Morrison are wholly irrelevant to any issue before us. We are concerned with an appeal against an order made dismissing a summons to dissolve an injunction. The question before us therefore is whether there was material before Orr, J., (Ag). which entitled him to dissolve the injunction granted by Bingham, J.

10 At the inter partes hearing, there was no question of suppression of facts. The fact of rental being paid by the plaintiffs was not mentioned by them in their affidavit it is true, but the supplied by the defendants. The Court was therefore in a position to consider all the material facts. Seeing that Orr, J. (Ag.), was of co-ordinate jurisdiction, with Bingham, J., he would have had no power to consider whether or not his brother had properly exercised his discretion. The proper question for him would be whether, apart from any question of suppression of facts which he did consider rejected, in the light of any events between the inter partes hearing and the hearing before him, justice required that the injunction be discharged. See Attorney General v. Guardian Newspaper Ltd. & Ors. and related appeals [1978] 3 All E.R. 316 at p. 355d.

11 During that time, the Statement of Claim, defence and counter-claim and reply and defence to counter-claim were filed. The pleadings disclosed that the plaintiffs were no longer relying on the exercise of the option to ground their purchase, but on the fact that the defendants had waived the conditions in the option clause. The effect of that material was that even if the case became a weakened case, it nevertheless remained an arguable case. There would not then exist any sufficient basis to discharge the injunction. It is not amiss to remind myself that the appeal is against then exercise of a judicial discretion and accordingly I am constrained to have firmly in my mind the cautionary words of Lord Diplock in Hadmor Productions Ltd. v. Hamilton [1982] 1 All E.R. 1042 at page 1045:

“An interlocutory injunction is a discretionary relief and the discretion whether or not to grant it is vested in the High Court judge by whom the application for it is heard. On an appeal from the judge's grant or refusal of an interlocutory injunction the function of an appellate Court, whether it be the Court of Appeal or your Lordships' House, is not to exercise an independent discretion of its own. It must defer to the judge's exercise of his discretion and must not interfere with it merely on the ground that the members of the appellate Court...