Frank Hasfal v Kenneth Walker
| Jurisdiction | Jamaica |
| Judge | Laing JA |
| Judgment Date | 07 July 2022 |
| Neutral Citation | JM 2022 CA 93 |
| Docket Number | APPLICATION NO COA2022APP00032 |
| Court | Court of Appeal (Jamaica) |
| Year | 2022 |
[2022] JMCA App 29
THE HON Mrs Justice McDonald-Bishop JA
THE HON Mr Justice D Fraser JA
THE HON Mr Justice Laing JA (AG)
APPLICATION NO COA2022APP00032
IN THE COURT OF APPEAL
Rudolph Smellie for the applicant
Respondent not appearing nor represented
Laing JA (AG)
The applicant, Frank Hasfal, the claimant in the court below (‘Mr Hasfal’), filed a notice of application on 17 February 2022 (‘the application for leave’), seeking permission to appeal against the order of the Honourable Mrs Justice Lawrence-Grainger (Ag) (‘the learned judge’), handed down on 3 February 2022, by which she refused the orders sought by Mr Hasfal in his amended notice of application, filed 8 July 2021 (‘the application’).
By the application, Mr Hasfal asked the judge for a declaratory order and other reliefs, in default of appearance by the respondent, Kenneth Walker (‘deceased’) or a representative of his estate. The declaration he sought was:
“… that the Claimant is the owner in fee simple of all that parcel of land at Seven Miles, Bull Bay, in the parish of Saint Andrew comprising 4152 square feet as per the attached copy plan prepared by Commissioned Land Surveyor Earl W. Spencer pursuant to a survey executed by him on March 14, 2016 …”
Mr Hasfal asserted that his ownership of these 4,152 square feet (which will be described herein as ‘the surveyed property’ for ease of identification), was by virtue of a possessory title acquired by his continuous, exclusive, open, undisturbed and adverse possession of it for more than 12 years.
Mr Hasfal also asked that the court direct that a registered title for the surveyed property be issued in his name and that the registration of certificate of title at volume 1275 folio 753 of the Register Book of Titles in the name of Kenneth Walker be rescinded.
Mr Hasfal also applied for a rectification of the formal judgment made by Mr Justice Marsh, entered in Claim No E-248 of 2001 between Frank Hasfal and Kenneth Walker in which the trial judge ordered that:
“there be Specific Performance of the Written Agreement between the Claimant and the Defendant dated the 30 th day of July, 1991 of the sale by the Defendant to the Claimant of land at Seven Miles, St. Andrew being part of Abyssinia Cottage, formerly registered at Volume 1230 Folio 273 of the Registered Book of Titles and now composed in Certificate of Title registered at Volume 1275 Folio 768 of the Register Book of Titles.” (emphasis added by this court for identification)
Mr Hasfal's position was that the description of the land was in part accidentally erroneous in its inclusion of the words emphasized above, and accordingly, they should be deleted.
The parties entered into a written agreement dated 30 July 1991 (‘the agreement), for the sale by Mr Walker to Mr Hasfal of land situated at Abyssinia Cottage in the parish of St Andrew (‘the property’) for the price of $45,000.00. The agreement contained a clause which provided that the purchaser shall take title to the property subject to, inter alia, the approval of the planning authorities, the Kingston and St Andrew Corporation (KSAC) and the Town Planning Department (referred to in this judgment collectively as ‘the municipal authorities’), to the sub-division of the land.
Mr Hasfal made a part payment of $15,000.00 (‘the deposit’) towards the purchase price and was put in possession of the property to which he made improvements. In 1996 the attorney-at-Law who represented Mr Walker attempted to return the deposit and advised Mr Hasfal through his attorney that the subdivision of the property was not approved by the municipal authorities. This prompted Mr Hasfal to initiate a suit by filing a writ of summons, (the then appropriate originating process) claiming specific performance of the agreement. Marsh J found that by applying for subdivision approval for strata lots as opposed to service lots, Mr Walker was in breach of an implied term of the agreement by failing to apply for the kind of approval which would have made the sale of the property, as envisioned in the agreement for sale, possible. Accordingly, the learned judge granted judgment for specific performance in Mr Hasfal's favour. On 26 March 2010 the appeal against the judgment of Marsh J was dismissed for want of prosecution.
On 4 November 2016, Mr Hasfal filed a fixed date claim form and particulars of claim. Amended particulars of claim and affidavit of Frank Hasfal were filed on 28 September 2018. On 30 April 2019 Mr Walker died. On 26 January 2021 a notice of application for court orders was filed by Mr Hasfal which sought the same reliefs prayed for in the fixed date claim form. This application was subsequently amended on 8 July 2021. On 3 February 2022 the learned judge refused the application.
The learned judge's decision is an interlocutory one. In these circumstances, the applicant was required to seek permission to appeal (see section 11(1)(f) of the Judicature (Appellate Jurisdiction) Act). Permission was sought from the learned judge but refused. Accordingly, the applicant renews his application to this court.
In his affidavit filed in the Supreme Court on 2 September 2019, Mr Smellie averred that Mr Walker had never filed an acknowledgment of service or a defence and had never attended any of the hearings either personally or by way of a representative, despite having been served with all the relevant documents and notices. He further averred that he was not aware of any evidence that any relative of Mr Walker “would have any knowledge of or interest in the matter which would be greater than that of the deceased.” He stated that he had been advised by a legal officer at the Administrator General's Department that because of their heavy workload they would be unwilling to be appointed as administrator ad litem unless required by law to so act.
Mr Smellie has outlined in detail, the procedural history of the orders of the learned judge in respect of which Mr Hasfal now seeks the application for leave. He relies on his own affidavit filed in this court on 17 February 2022, (the affidavit in support) to which is exhibited a number of documents including an affidavit of service sworn to by Stephen Talbert, filed on 1 June 2017, in which Mr Talbert avers that on 7 April 2017 he served Mr Walker with copies of the fixed date claim form and particulars of claim bearing the date of 4 November 2016.
Mr Smellie avers in the affidavit in support, that...
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