Fernandes (Marie-Clare) (Beneficiary/Executor for the estate of Mildred May Mullings and Amaryllis Maria Moo (Beneficiary/Executor for the estate of Mildred May Mullings, deceased) v Adizua Patrick Eyiche
| Jurisdiction | Jamaica |
| Judge | MCDONALD J |
| Judgment Date | 11 September 2007 |
| Judgment citation (vLex) | [2007] 9 JJC 2102 |
| Date | 11 September 2007 |
| Court | Supreme Court (Jamaica) |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN CIVIL DIVISION
BUILDINGS - Construction - Interim injunction -Setting aside
RESTRICTIVE COVENANTS - Breach - Lots for commercial purposes
On 31 st August 2007 the defendant filed an application before this Court (i) to have interim injunction obtained by the Claimants on August 17, 2007 set aside and (ii) to refuse to grant on injunction on an inter partes hearing and for the Court
(iii) to strike out the claim as having no reasonable prospect of success and/or as being an abuse of the process of the Court —
(iv) That there be an enquiry as to damages that he suffered as a result of the ex parte injunction granted against him — (v) an order that the Claimants pay the costs of these proceedings.
The applications before the court involve some of the same principles of law and can conveniently be heard together.
The Claimants are the executrices and sole beneficiaries of the estate of their mother Mildred May Mullings deceased whose will has not yet been probated.
On August 17, 2007 an order was made appointing them representatives of the said estate for the purposes of these proceedings.
As beneficiaries they inherited property located at 37 Main Street, Mandeville, Manchester comprised in Certificate of Title registered at Volume 419 Folio 85 of the Register Book of Titles.
This property was the subject of a subdivision into lots for commercial purposes, and one of these lots, lot 11 sold initially to George Jones and then to the Defendant.
The subdivision was subject to a number of Restrictive Covenants. Restrictive Covenants were endorsed on the splinter title being the land comprised in Certificate of Title registered at Volume 1299 Folio 649 otherwise referred to as lot 11, 37 Main Street Mandeville Manchester. These Covenants included Covenants 10 and 11 made pursuant upon the transfer entered into by Mildred May Mullings deceased and George Jones.
On or about 8 th September 2005, the said property was transferred by George Jones to the defendant who is now the registered proprietor.
In April 2007, the Claimants observed construction beginning on Lot 11. as a result their Attorneys Coke Coke and Fernandez wrote letters dated 10 th April 2007 and 3 rd May 2007 exhibits 'M-CF and AMM4' to the Defendant's Attorney, Mr. Adedipe and he responded by letters dated 16 th April 2007 and 15 th May 2007 exhibits "PEA1".
Essentially, the Claimants letters made reference to Restrictive Covenants 10 and 11 on Certificate of Title for lot registered at Volume 1299 Folio 649 and requested sight of the Defendant's building plans. Letter dated May 3, 2007 points out that the proprietor who intends to build on his lot is under a duty to seek the approval of the registered proprietor of the parent title so that his building should conform to the overall design for the subdivision.
The Defendant's response is that such a meaning as stated above cannot be attributed to the covenants. Further the Covenants do not authorize the Claimants to call for the Defendant's plan.
Restrictive Covenant 10 endorsed on Certificate of Title registered at Volume 1299 Folio 649 reads as follows:
"No building of any kind other than a commercial or professional building shall be erected on the said land and shall not be built other than in accordance with plans designed and specifications prepared by an Architect who is a registered member of the Jamaican Institute of Architects and approved by the former registered proprietor her successors assignees or nominees."
Restrictive Covenant 11 reads:
"The registered proprietor shall not paint the exterior of the building on the said land in a colour other than in a colour approved by the former registered proprietor her successors, assignees or nominees and shall not make any addition change or variation to the exterior of such building and shall not permit same to be done or allow same to remain without the written approval of the former registered proprietor her successors assignees or nominees."
The Claimants have filed one Affidavit and the Defendant four Affidavits in support of the application.
The Claimants in their Affidavit dated 17 th August 2007 state that:-
"The Restrictive Covenants were invoked to ensure that the entire subdivision would be developed in a uniform manner in order to maintain uniformity and harmony of the development and to ensure that the value and beauty of the lots in the subdivision, including the Defendants own lot, are preserved and enhanced.
That the vision for the subdivision was a professional centre containing buildings that are no more than two (2) storeys high and capture the old Mandeville great-house charm of the area.
That the subdivision is a commercial development which currently has villa type units on some of the lots that maintain the old Mandeville great-house charm of the area. That it contains approximately twenty (20) lots with limited parking spots allotted for each lot.
That the Defendant's building is not yet completed but is now going up a fourth storey which could impact negatively on the parking spots allotted to the owners of the rest of the subdivision.
That in light of the above they are exposed to their rights being further breached, parking problems developing due to the sheer size of the building now under construction and the devaluation of the surrounding lots as a result That they are in danger of having no effective resolution to the continued breach of their rights should the Defendant be allowed to...
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