Fabian Lee Bradshaw Yeazmin Katherine Stewart-Bradshaw v Jonathan Ellis

• Jurisdiction: Jamaica
• Judge: Simmons J
• Judgment Date: 17 June 2016
• Neutral Citation: [2016] JMSC CIV 102
• Docket Number: CLAIM NO. 2016HCV01462
• Court: Supreme Court (Jamaica)
• Date: 17 June 2016

[2016] JMSC CIV. 102

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

Simmons J

CLAIM NO. 2016HCV01462

Between

Fabian Lee Bradshaw Yeazmin Katherine Stewart-Bradshaw

Claimants

and

Jonathan Ellis

1 ^st defendant

Julie Ann Keneisha Ellis-Bradley

2 ^nd Defendant

Diana Forryone Alexander

3 ^rd Defendant

The Registrar of Titles

4 ^th Defendant

Mr. Anthony Pearson instructed by Pearson and Company for the claimants

Mr. Kevin Williams instructed by Grant, Stewart, Phillips and Company for the 1 ^st, 2 ^nd and 3 ^rd defendants

Legislation:

Registration of Titles Act.

INJUNCTION — REGISTRATION OF TITLES ACT — FRAUD — POSITION OF A BONA FIDE PURCHASER FOR VALUE WITHOUT NOTICE

IN CHAMBERS

1 This is an application by the claimants who are the registered owners of all that parcel of land registered at Volume 1086 Folio 220 of the Register Book of Titles (the property) for an injunction to restrain the first, second and third defendants (the defendants) by themselves or their servants and/or agents from carrying out any construction work on the property until the hearing of the claim.

2 The defendants are the registered owners of the property which is now registered at Volume 1483 Folio 992.

3 In January 2016 Mr. Bradshaw who resides overseas visited the Island and observed that works were taking place on the property,

4 They subsequently filed an action in which they have seek the following:-

• (i) An order for recovery of possession of premises situated at no. 1 West Great House Circle, Havendale Heights in the parish of Saint Andrew (the property) against the first, second and third defendants (the defendants);

• (ii) An order for the cancellation of Certificate of Title registered at Volume 1483 Folio 992 in the Register Book of Titles;

• (iii) An order for the issuance of a new Certificate of Title in the names of Fabian Lee Bradshaw and Yeazmin Katherine Stewart-Bradshaw both of 70 Flintmill Crescent, London SE3 8LY, England, truck driver and housing officer respectively as joint tenants;

• (iv) Costs They have also claimed damages and costs against the 4 ^th defendant.

5 The Particulars of Claim state that the claimants acquired the property on or about the 2 ^nd September 2008 from Leonard Keith Anthony Hall and Lorna Mercedes Hall.

6 It is alleged that on or about October 2014 “unknown persons/fraudsters” who pretended to be the claimants, made an application for the issuance of a new Certificate of Title on the basis that the Duplicate Certificate of Title for the property was lost.

7 The original Certificate was cancelled and a new Certificate of Title registered at Volume 1483 Folio 992 was issued in respect of the property in the names of the claimants. The claimants have stated that they did not make the application or sell the property and are still in possession of the Duplicate Certificate of Title registered at Volume 1086 Folio 220.

8 The Particulars of Claim also state that the property was transferred to the defendants on the 31 ^st August 2015 by those “unknown persons/fraudsters”. There is no allegation of fraud against the defendants although it is alleged that they have been registered as the proprietors of the property through fraud.

9 The application is supported by the affidavit of Mr. Anthony Pearson, the claimants' Attorney-at-law. The affidavit states that persons pretending to be the claimants made an application for a new title on the basis that the Duplicate Certificate of Title for the property was lost. The property was subsequently sold to the defendants who have since begun to carry out “works” on the property.

10 The first defendant filed an affidavit in response, in which he stated that neither he nor the other defendants who are his daughters, knew anything about the application for a new title until approximately three (3) months after the completion of the sale.

11 He denied taking part in any fraud and stated that he learnt that the property was being sold through an advertisement in the Sunday Gleaner newspaper of May 3, 2015. A copy of the advertisement which was exhibited to his affidavit states that an unfinished house in Kingston 19 was being offered for sale by the owner. Mr. Ellis indicated that he called the telephone number in the advertisement and spoke to a man who identified himself as the owner, Mr. Bradshaw.

12 They agreed to meet at the property but when Mr. Ellis arrived he got a call from the same gentleman who indicated that he could not get there in time. He went ahead and viewed the property which was open..

13 Mr. Ellis subsequently went to the National Land Agency on May 5, 2015 and obtained a copy of the title. A copy of the receipt for cost of the copy was exhibited to his affidavit.

14 The defendants purchased the property and the transfer was registered on the 31 ^st August 2015. Both parties were represented by counsel. The defendants subsequently began to carry out construction works on the property.

15 On about December 2015, Mr. Ellis says that a man approached him whilst he was at the property and asked him what was his reason for being there. When he indicated that he was the owner, the man informed him that the owner lived in England and had not sold the property.

Claimants' submissions

16 Mr. Pearson submitted that the defendants' title was procured through fraud against the true owners and that the matter should be resolved in accordance with section 158 of the Registration of Titles Act ( the Act). That section he said, gave the court the power to direct the Registrar of Titles to cancel the defendants' title after an order was made in favour of the claimants for the recovery of possession.

17 He directed the court's attention to paragraphs 2 and 3 of the particulars of claim in which it was stated that in 2008 the claimants had acquired the property which was now registered in the names of the defendants. Counsel submitted that in light of the allegations there is a serious issue to be tried and the injunction ought to be granted.

18 Mr. Pearson indicated that there is no dispute that “works” are being executed on the property and that the defendants were informed that there was an issue with its sale. He further submitted that the defendants' title had been procured by the fraud of persons who had pretended to be the claimants. He also stated that the balance of convenience rests with forbidding the continuation of the “works”. Counsel also submitted that the grant of injunctive relief would preserve the status quo until the trial of the matter.

19 In conclusion, it was submitted that the court could make the order sought if it was convinced that the claimants did not transfer the property to the defendants.

Defendants' submissions

20 Mr. Williams submitted that the issues for the determination of the Court regarding the grant of an interlocutory injunction are set out in the decision by the House of Lords in American Cyanamid Co. v Ethicon [1975] AC 396.

21 It was submitted that the application ought to be refused as there is no serious issue to be tried between the claimants and the defendants. Counsel argued that the claimants in seeking to obtain the injunctions have not made any allegation of wrongdoing on the part of the defendants which would give rise to any cause of action against them. He contended that a careful review of the particulars of claim discloses that whilst there are allegations of fraud against unknown parties, none has been made against the defendants. Additionally, there is no evidence that the defendants had any knowledge that the actual owners were not the vendors.

22 Counsel also submitted that it is apparent that whatever may have occurred between the claimants and those alleged “unknown fraudsters”, third party rights in the person of the defendants have accrued as they are now bona fide purchasers for value who are duly registered on the Certificate of Title. It was further submitted that the defendants purchased the premises with the assistance of a firm of attorneys who interfaced with an attorney who represented the vendor and there is evidence that the defendants paid for the premises and properly received title duly registered in their names.

23 Therefore, it was submitted that the defendants' actions do not amount to personal dishonesty or moral turpitude.

24 Counsel argued that in most instances the dishonesty which is complained is attributed to the registered proprietor in his bid to secure his registration. It was contended that this has not been said in respect of the defendants and cannot be said in the circumstances of this case. He submitted that the court would therefore be precluded from finding that the principle of indefeasibility is capable of being displaced.

25 It was further submitted that section 158 of the Act is administrative in nature and cannot be used to ground the claimants' application. He stated that sections 153 to 160 are encompassed under the section of the Act which is headed “Procedure and Practice”. Reference was made to the case of Pottinger v Raffone [2007] UKPC 22 (17 April 2007) in support of that submission.

26 Mr. Williams also submitted that the principle of indefeasibility of title is fundamental to the system of ownership by registration and is protected by sections 70 and 71 of the Act. He contended that section 70 enables preferential and prior rights to be defeated in favour of the registered proprietor except in the case of fraud and section 71 gives protection to parties dealing with registered proprietors of land except in the case of fraud. Counsel also referred to section 161 (d) and submitted that the section provides protection for the registered proprietor from actions of ejectment or recovery of land. However, it does not preclude persons who have been deprived of their land by fraud from bringing an action.

27 Mr....