Forbes, Wilfred & Cowell Anthony Forbes v Miller's Liquor Store (Dist) Ltd

• Jurisdiction: Jamaica
• Judge: ANDERSON: J
• Judgment Date: 03 December 2002
• Judgment citation (vLex): [2002] 10 JJC 1801
• Date: 03 December 2002
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN EQUITY

BETWEEN

WILFRED EMANUEL FORBES

1 ^ST PLAINTIFF

AND

COWELL ANTHONY FORBES

2 ^ND PLAINTIFF

AND

MILLER'S LIQUOR STORE (DIST) LTD.

DEFENDANT

INJUNCTIONS - Interlocutory injunction - Whether plaintiffs entitled to redeem mortgaged property - Whether mortgagee should be allowed to claim interest - Whether contract of sale of mortgaged property was a gross undervalue

ANDERSON: J

1 This is an application by way of summons for an interlocutory injunction to be granted in favour of the plaintiffs herein, against the defendant company.

2 The action had been begun by way of Originating Summons, and had been filed in the Supreme Court, on the 20 ^th September 2001. The Originating Summons claimed a declaration as follows:

That the Plaintiffs are entitled to redeem the said mortgage(d) property upon payment by the plaintiffs jointly and/or severally to the defendant of any sum found to be due on the taking of an account

That in taking the said account, the defendant/mortgagee should not be allowed to claim interest after the 31 ^st August then due under the said mortgage.

That the plaintiffs are entitled to an injunction restraining the defendant and/or his (sic) servants or agents from taking any further steps to complete the purported contract of sale between the Defendant and Duncarl Limited, such purported contract dated the 30 ^th August 2001 and from executing or seeking to have registered any Instrument of Transfer in respect of property situated at 17 Ward Avenue Mandeville in the Parish of Manchester and registered in the Register Book of Titles at Volume 1053 Folio 757 and Volume 1035 Folio 462 until the trial of this action or until further order.

That the purported contract for sale of the mortgage(d) property was a gross undervalue and the plaintiffs are entitled to damages for negligence and misrepresentation.

Damages with interest, for breach of contract and wrongful exercise of the power of sale thereof.

3 When the matter initially came on for hearing on December 3, 2001, Mrs. Taylor-Wright, for the defendant, indicated that she wished to raise some preliminary objections. She submitted firstly, that the court had no jurisdiction to hear the plaintiffs' case in the manner in which it was being brought. The incorrect procedure had been used to get this matter to court. Proceeding by way of the Originating Summons by which the action had been commenced, was inappropriate and the procedure had to be used in accordance with the provisions of the Judicature Civil Procedure Code Law, sections 532 to 545. In this regard, she submitted that section 535 which permits a mortgagor or mortgagee to take out an originating summons in pursuance of certain rights, and which is set out below, contains no provisions which allow an originating summons to be used in an action for the taking of accounts or for the award of damages also remedies claimed by the plaintiff.

535: Any mortgagee or mortgagor, whether legal or equitable, or any person entitled to or having property subject to a legal or equitable charge, or any person having the right to foreclose or redeem any mortgage, whether legal or equitable, may take out as of course an originating summons, returnable, as may by the summons be specified, and as the circumstances of the case may require, that is to say, -

Payment of money secured by the mortgage or charge;

Sale;

Foreclosure;

Delivery of possession (whether before or after foreclosure) to the mortgagee or person entitled to the charge, by the mortgagor or person having the property subject to the charge or by any other person in, or alleged to be in possession of the property;

Redemption;

Reconveyance;

Delivery of possession by the mortgagee.

4 By way of support she referred also to the case of Eldemire v Eldemire, Vol 38, West Indies Report 1990 p. 234 . In that case,

H claimed that by virtue of the wills of the parents of A and himself and an agreement between the two of them certain lands were held by A and himself upon trust for A absolutely and that he was entitled to have the lands vested in him. He issued an originating summons to enforce his claim. The trial judge made an order in H's favour but the Court of Appeal allowed A's appeal against the order on the ground that an originating summons was not an appropriate form of proceeding for the relief claimed; the court regarded the action essentially as being a claim for specific performance of the agreement between A and H and thus not falling within the provisions of section 532(a) of the Judicature (Civil Procedure Code) Law (originating summons to determine questions affecting rights or interests of persons claiming as creditors, devisees, legatees, next of kin, heirs at law or cestui que trust. On the question whether H's claim fell within section 532 (a); Held, that H's claim concerned a trust estate which he claimed was held on his behalf absolutely and the facts not being in dispute, his claim was in the nature of a claim by a cestui que trust and had properly been brought by originating summons in accordance with section 532(a).

5 Secondly, she submitted that when there are contentious or disputed facts the action should be commenced by a writ and not by Originating Summons. She claimed that this submission was supported by the case of Gowe v Lurch 1987 Vol. 24 Jamaica Law Report p. 508 . The 3 ^rd holding in the head note in that case provides as follows:

"that in contentious matters in which oral evidence is likely to be necessary, it is appropriate to commence the action by writ and not by originating summons".

6 In the case of Eldemire v Eldemire (supra) Lord Templeton in delivering the advice of the Board at page 238 said:-

"As a general rule, an originating summons is not an appropriate machinery for the resolution of disputed facts. The modern practice varies; sometimes when disputed facts appear in an originating summons proceedings, the court will direct the deponents who have given conflicting evidence by affidavit, to be examined and cross examined orally and will then decide the disputed facts. Sometimes the court will direct that the originating summons proceedings be treated as if they were begun by writ and may direct that an affidavit by the applicant be treated as a statement of claim."

7 Further support for her submission is found by Mrs. Taylor-Wright, in particular, in the judgment of Carberry J.A. in the Gowe v Lurch case (supra) at page 512. In relation to that case he said:

"It was not appropriate to use an Originating Summons as a means of bringing this contentious dispute...before the court."

8 By way of making a further preliminary point, Mrs. Taylor-Wright urged the court to find that the plaintiffs had no locus standi to have brought the action. She cited the case, Thorne v British Broadcasting Corporation (1967) WLR 1104 at p. 1109 . The proposition which she seeks to elicit from this case is taken from the following words in the judgment of Lord Denning M.R.:

"It is a fundamental rule that the court will only grant an injunction at the suit of a private individual to support a legal right"

9 It is, I would urge with respect, a misconceived submission which does not assist this court. One of the issues which will be determined in the substantive action between the plaintiffs and the defendant is, what right, if any, the plaintiffs may have. This summons is an application for an interlocutory injunction. It seems a finding that the plaintiffs have no legal right, as in the Thome case, is a substantive finding which will be made later and not at this interlocutory stage. I need hardly add that a submission that the plaintiffs have no locus standi, is not necessarily the same as one saying that the plaintiffs have no legal right which he may seek to protect.

10 In further support of her submission that the plaintiff had no locus standi, Mrs. Taylor-Wright for the defendant submitted that under section 103 of the Registration of Titles Act, it is "the proprietor of any land under the operation of this Act" who may mortgage the same by signing the mortgage thereof in a form in the Eighth Schedule, and may charge the same with the payment of an annuity by signing a charge thereof in the form of the Ninth Schedule. She submits that pursuant to this section only a "proprietor" may validly grant a mortgage. Proprietor is defined by section 3 of the Act as being:-

"the owner solely, jointly or in common with any other person, in possession, remainder, reversion, expectancy or in tail, or otherwise, of land, or a lease, mortgage or charge; and any such word shall include the donee of a power, or other person empowered or authorized to appoint or dispose".

11 She points out that the plaintiffs' names had never been entered in the Register Book of Titles with respect to the property, the subject of the agreement for sale between the parties. She submitted that while under section 3 they may, as mortgagors, qualify to be proprietors, the fact is that they were not in law "proprietors". This was because, since as noted above, the plaintiffs had not been registered as proprietors in the Register Book of Tiles, they must needs qualify as "proprietors" as "mortgagors". However, the mortgage under which the plaintiffs purport to be proprietors is not a legal mortgage. If I understand the point counsel was seeking to make, it was that, not only was the mortgage not registered, it could not have been registered , as the mortgagors were not registered proprietors as required by section 103 of the Registration of Titles Act. Indeed, in an affidavit sworn on the defendant's behalf by its managing director, it is stated that it gave instructions to its attorneys to effect the said registration, but does not know why this was not...