Dunkley (George) and Seymour Campbell v Hazel Campbell

• Jurisdiction: Jamaica
• Judge: WALKER, J.A.:
• Judgment Date: 03 November 1999
• Neutral Citation: JM 1999 CA 66
• Judgment citation (vLex): [1999] 11 JJC 0301
• Court: Court of Appeal (Jamaica)
• Date: 03 November 1999

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE BINGHAM, J.A THE HON. MR. JUSTICE WALKER, J.A THE HON. MR. JUSTICE PANTON, J.A. (Ag.)

BETWEEN

GEORGE DUNKLEY

APPELLANT

AND

SEYMOUR CAMPBELL

AND

HAZEL CAMPBELL

RESPONDENTS

Dennis Morrison, Q.C. and Carlton Williams , instructed by Williams, McKoy and Palmer, for the appellant

B. St. Michael Hylton, Q.C. , instructed by Myers, Fletcher & Gordon, for the respondents

CONTRACT FOR SALE OF LAND - Breach of contract - Whether contract ought to be rescinded - Whether contract was valid - Whether contract amounted to sufficient memorandum of agreement between parties

WALKER, J.A.:

1 This appeal is directed at a judgment of McCalla, J. (Ag.) (as she then was) whereby the learned trial judge ordered that:

"The contract made in August 1983 be rescinded and a return of the deposit of TEN THOUSAND DOLLARS ($10,000.00) to the Defendant with interest thereon at the rate of 10% per annum from 1st January, 1984, to today and an award made to the Defendant of half the costs that would have been agreed or taxed on the successful prosecution of his Counter-claim. The Defendant must deliver up possession of premises within 6 months of the date of the refund of the deposit."

2 At the trial, a document purporting to be a copy of a contract for the sale of land entered into between the parties hereto was admitted in evidence as exhibit 1. The validity of this contract is disputed, and it is agreed by counsel appearing on both sides that the central issue on this appeal is whether the document, exhibit 1, evidences a sufficient memorandum of an agreement between the parties for purposes of the Statute of Frauds for the sale to the appellant of the relevant parcel of land of which the respondents, who are husband and wife, were proprietors as joint tenants. More specifically, the question to be determined on this appeal is whether the principal finding of the learned trial judge that the disputed agreement for sale was not, in fact, signed by the first respondent is sustainable on the evidence that was adduced before the court.

3

4 The appellant's case was supported by three witnesses as to the identity of the signatories to the disputed agreement for sale. Firstly, the appellant, himself, testified that he signed the original of exhibit 1 on August 6, 1983. This he did in the office of his attorney, Mr. Diggs-White. Also signing the document at this time were, he said, the appellant's brother, Delroy Dunkley, the second respondent and a gentleman whom she introduced to the appellant as her husband. After the document was signed, the appellant paid a deposit of $10,000 which is not disputed. Thereafter, the appellant said, he was put in possession of the subject property by both respondents. The balance of the purchase price of $14,800 was payable on completion of the transaction. When asked to identify the first respondent in court, the appellant could only say that the first respondent (who was then present in the court room) resembled the same man who had signed the agreement for sale in the attorney's office. Secondly, Leslie Diggs-White, attorney-at-law, gave evidence that he prepared the relevant agreement for sale which was duly executed by the parties on the date and at the place as testified to by the appellant. He did not know either of the respondents before. It was the second respondent who introduced the male person who accompanied her by saying, "this is my husband." Mr. Diggs-White denied that at any time he handed to the second respondent a sealed envelope in which was enclosed the original agreement for sale with instructions that she should take the document to England there to be signed by the first respondent. Some three to four years later, the witness said, he saw Mrs. Campbell again. On this occasion Mrs. Campbell came to his office "almost in tears" stating that she had sold her property too cheaply, that her husband, was "about taking her head off for so doing, and that she would "do anything in the world" to reverse the sale since she had another buyer who was willing to pay more for the property. Mr. Diggs-White said he told Mrs. Campbell that she had already entered into a binding contract for the sale of the property and he could do nothing to help her. When asked to identify the first respondent in court the judge's notes of evidence disclose the following interchange between counsel and Mr. Diggs-White:

"Q: Before July, 1983 did you know Mr. Seymour Campbell?

Ans: No.

Q: Do you know him today?

Ans: I see a gentleman that looks like him. I don't see him so don't know if I recognise him, saw man who looks like man who came that day.

Q: Do you know Seymour Campbell?

Ans: Can't be one hundred percent sure I can't know him after fourteen (14) years. Person seen with Mrs. H. Campbell I would be prepared to say looks like man and if I can't I would say so. Don't know if I could identify unless I see the person. Hypothetical, can't answer...