Easton Francis and Others v Anthony Fitzgerald Gibbs and Victoria Mutual Building Society

JurisdictionJamaica
CourtCourt of Appeal
Judge PHILLIPS JA
Judgment Date26 May 2011
Neutral CitationJM 2011 CA 44
Date26 May 2011
Docket NumberSUPREME COURT CIVIL APPEAL NO. 112/2010 APPLICATION NO. 176/2010

[2011] JMCA App 9

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT CIVIL APPEAL NO. 112/2010

APPLICATION NO. 176/2010

BETWEEN
EASTON FRANCIS Executor, Personal Representative Beneficiary in the Estate of Miriam Francis (deceased)
1 ST APPLICANT
AND
CHRISTINE GORDON
2 ND APPLICANT
AND
VICTOR FRANCIS
3 RD APPLICANT
AND
KATHLEEN FRANCIS
4 TH APPLICANT
AND
ALBERT FRANCIS
5 TH APPLICANT
AND
ANTHONY FITZGERALD GIBBS
1 ST RESPONDENT
AND
VICTORIA MUTUAL BUILDING SOCIETY
2 ND RESPONDENT

Donald Gittens and Mrs Marjorie Shaw-Currie instructed by Miss Carleen McFarlane McNeil of McNeil & McFarlane for the applicants

Gavin Goffe instructed by Myers Fletcher & Gordon for the 2 nd respondent

CIVIL PROCEDURE - Stay of proceedings - Interim injunction - Whether damages an adequate remedy - Costs

PHILLIPS JA
1

This is an application for an order that the judgment of Thompson-James J, made on 24 September 2010, be stayed until the hearing of the appeal or in the alternative, for an interim injunction restraining the 2 nd respondent by itself, its servants, employees or any person acting under its instructions from exercising powers of sale under mortgage no. 1504165 registered against the lands known as 107 Queen Hythe, Discovery Bay in the parish of Saint Ann, registered at Volume 1412 Folio 962 of the Register Book of Titles (‘the said property’), other than by order of the court or until the trial of the matter.

2

On 24 September 2010 Thompson-James J refused an application for an interim injunction in the terms stated above. There was also before her an application filed by the 2 nd respondent seeking an order for the Registrar of Titles to remove caveat no. 1590876 from the certificate of title for the said property, which she granted, and an order to strike out the statement of case against the 2 nd respondent, which she refused. The applicants have appealed both orders, that is the refusal of the injunction and the removal of the caveat, and the 2 nd respondent has appealed the order refusing to strike out the claim against it.

3

The claim below was brought by the executor and other beneficiaries of the estate of Miriam Francis, who was the former registered proprietor of the said property. The claimants (who are the applicants) alleged that the said property was fraudulently transferred to the husband of the niece of the deceased (on a date after the deceased's death), who then procured mortgage no. 1504165 from the 2 nd respondent, obtained the proceeds thereof, failed to pay any part of the loan, which therefore went into arrears, thus triggering the taking of steps by the 2 nd respondent, to exercise its powers of sale over the said property. The husband, the 1 st respondent herein, has not been located even to have the documents relative to the proceedings below served on him.

The proceedings below

4

The applicants filed the claim form on 23 April 2009, stating that the deceased had been the registered proprietor of the said property when registered at Volume 976 Folio 281 of the Register Book of Titles. Perusal of the certificate of title however indicates that it was cancelled, pursuant to section 79 of the Registration of Titles Act (ROT), and the new title registered at Volume 1412 Folio 962 of the Register Book of Titles, was issued in the name of the 1 st respondent. The claim by the applicants against the respondents was for damages for fraud, deceit, misrepresentation and/or negligence, in that the 1 st respondent wrongfully and fraudulently caused himself to be registered on the title for the said property when he knew that no transfer had taken place, and the 2 nd respondent had given the 1 st respondent a mortgage without taking any steps to ensure that the title was a good title in all the circumstances. As a consequence of those actions, the applicants claimed that they had suffered loss, damage and expenses.

5

In the particulars of claim, the claimants/applicants were described as all children and beneficiaries of the deceased. The 1 st applicant is also the executor of the will of the deceased. They were all, save and except the 1 st and 5 th applicants, residing overseas, either in the United States of America or Canada. The 1 st respondent is a Minister of Religion and the husband of Carol Gibbs, a niece of the 1 st - 5 th applicants, who was added as a 6 th claimant to the suit below, but is not an applicant in this court. The 2 nd respondent is a registered building society in Jamaica, engaged in providing banking and/or mortgage services to the public and is the registered mortgagee on the certificate of title for the said property (Volume 1412/Folio 962) in respect of mortgage no. 1501465 in the amount of $14,000,000.00.

6

The applicants further averred that the deceased became the registered proprietor of the said property on 10 November 1961, executed her last Will and Testament on 27 August 1964 and died on 19 April 1968. She bequeathed the said property to all her eight children, three of whom have since died. The executor has over a long period of time tried to obtain probate of the will, but experienced difficulties, as he was unable to obtain the death certificate from the Registrar General's Department, in spite of substantial sums having been paid to that institution in 2004 and 2006. All the relevant documents pertaining to the estate, including the certificate of title for the said property had been given for safekeeping to Avis Francis, the stepdaughter of the deceased. When she became ill, suffered several strokes and started to develop Alzheimer's disease, the documents were given to Carol Gibbs, her niece, who had obtained consent from the other beneficiaries to, and had constructed, a building on the said property, and resided there. The 1 st respondent offered to help with extracting probate, and advised that he could assist in obtaining the death certificate. Through that ruse, a copy of the Will, the certificate of title and tax receipts in respect of the said property were given to him.

7

The applicants claimed that there were three buildings constructed on the said property: the family house where the deceased had resided, and where the 5 th applicant, 62 years old (in 2009), but who has been mentally retarded throughout his life resides, the home constructed by Carol Gibbs, where she resides with her family, and a dwelling house being constructed by a grandnephew, Jason Grant. The applicants became aware that the property had been transferred when communication addressed to the 1 st respondent from the 2 nd respondent was given to Carol Gibbs, and it was further discovered that there was a mortgage registered on the said property in the amount of $14,000,000.00 which was in arrears, and that the said property had been put up for sale by way of public auction, and by private treaty, by the 2 nd respondent, on 27 January 2009. The applicants, through their attorneys and searches conducted at the National Land Agency, discovered that the 1 st respondent had fraudulently misrepresented to the Registrar of Titles that the deceased had transferred the property to him, allegedly by way of natural love and affection, so he was the owner of all three buildings on the said property. Yet, he had submitted to the Registrar a declaration of value allegedly sworn to by the deceased on 17 July 2007, which stated that she had made no improvements to the said property and that the market and other value of the said property was $3,500,000.00.

8

The applicants therefore set out 11 particulars of fraud, misrepresentation and/or deceit of the 1 st respondent, including: that the 1 st respondent had been fraudulent in procuring the transfer documents at a time when he knew that the deceased had died nearly 40 years ago; submitting the same knowing them to be false; forging the deceased's signature on the declaration of value and on the instrument of transfer; misrepresenting that there had been any transfer of the property to him by the deceased for natural love and affection and indicating that the said property was unimproved lands which he knew to be false.

9

In respect of the 2 nd respondent, the applicants claimed negligence in the failure to act with due diligence to ascertain the fact that there were three houses on the said property and, through search of the root of the title, to ascertain the true ownership of the said houses; failure to make any enquiries as to the occupancy of the same which could put one on inquiry; failure to be cautious as the sums being loaned were substantial and the title had only recently been issued, and any review of the documentation would have shown that the said property was being valued far less only recently, which ought to have put the 2 nd respondent on notice; and for failure to act with reasonable prudence as a mortgagee in all the circumstances.

10

The affidavit of the 1 st applicant in support of the application for the injunction below essentially set out the facts in the particulars of claim but confirmed that his mother, the deceased, had died on 19 April 1968 and that he had attended her funeral and seen her buried at the family plot on the said property. The last Will and Testament of the deceased was attached. He deposed to the fact that action had been filed to cancel the certificate of title registered at Volume 1412 Folio 962 as it had been obtained fraudulently, and that the mortgage endorsed thereon was void due to the fraudulent transaction relating to the title. He further averred that, despite several efforts, the 1 st respondent had not been located, although there was information that he was operating the Mount Calvary Church of God in the Cayman Islands. The loan was not being serviced and interest continued to accrue thereon every day. As a consequence,...

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