Gretel Surf v Shelly Ann Russell

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Panton P,Dukharan JA,Sinclair-Haynes JA (AG)
• Judgment Date: 20 December 2016
• Neutral Citation: JM 2016 CA 116
• Docket Number: RESIDENT MAGISTRATE'S CIVIL APPEAL NO 22/2014
• Date: 20 December 2016

[2016] JMCA Civ 62

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Panton P

The Hon Mr Justice Dukharan JA

The Hon Mrs Justice Sinclair-Haynes JA (AG)

RESIDENT MAGISTRATE'S CIVIL APPEAL NO 22/2014

Between

Gretel Surf

1 ^st Appellant

Clive Foster

2 ^nd Appellant

and

Shelly Ann Russell

Respondent

Miss Audrey Clarke instructed by Judith M Clarke & Co for the appellants

Ewan Thompson for the respondent

Panton P

1 On 29 April 2014, Her Honour Mrs Sonya Wint-Blair, who was then acting Senior Resident Magistrate for the parish of Saint Elizabeth, entered judgment in favour of the respondent for the sum of $305,000.00, with costs to be agreed or taxed. The plaint note and summons indicate that the claim by the respondent against the appellants was for “restitution/damages for breach of contract or inducing breach of contract”. This decision did not please the appellants so they filed notice and grounds of appeal on 14 May 2014.

2 In their grounds of appeal the appellants have complained that:

• i. The learned Resident Magistrate erred in finding that the claim had been proven;

• ii. There was no evidence to support the decision;

• iii. There was no evidence that the appellants entered into and/or breached any contract with the respondent; and

• iv. The learned Resident Magistrate did not properly analyze the evidence.

By these grounds, they hope to have the appeal allowed and judgment entered in their favour.

The evidence

3 The appellant Foster and the respondent had a common law relationship which lasted several years and produced one child. The appellant Surf, a retired teacher, inherited a parcel of land at Rockfield in the parish of Saint Elizabeth. On 1 April 2011, she had a transaction with the appellant Foster and the respondent in respect of this land. She signed a receipt indicating that Mr Foster and Miss Russell had paid her the sum of $240,000.00 for the land, and there was a balance of $45,000.00 owing thereon. That receipt was admitted into evidence as exhibit 1. The balance due was subsequently paid by Mr Foster and Miss Russell who took possession of the land and proceeded to live on it. They also operated a bar on the premises, first from a container and then from a concrete structure that they erected. The structure was completed in June 2012, but by August 2012 Mr Foster and Miss Russell were no longer together. Like so many other such relationships, they went their separate ways.

4 As a result of the failed relationship, the bar was closed. Mr Foster denied Miss Russell the opportunity to continue to operate the bar. However, he subsequently resumed bar operations there in conjunction with his new lady friend. Miss Russell has received no compensation for her contribution to the price of the land or her expenditure in the construction of the building housing the bar. Consequently, the instant suit was filed.

5 There is also another reason for these proceedings. Miss Surf issued another receipt to one Mrs Annie Moxam for $285,000.00 in respect of the said parcel of land. That receipt, like the earlier one, bears the date 1 April 2011, although it was not really issued to Mrs Moxam until January 2013. According to Miss Surf, the land was sold to Mrs Moxam, not Mr Foster and Miss Russell. Indeed, Miss Surf's evidence was that Mr Foster was acting as Mrs Moxam's agent and Miss Russell's name was added to the earlier receipt merely because Miss Russell had requested that that be done.

6 Mrs Moxam gave evidence that the second appellant, Mr Foster, was her agent and that it was she who was purchasing the land from Miss Surf. However, she said that she had no problem with the name of the appellant Russell being placed on the receipt. According to her, Miss Russell had never worked a day in her life and it was she, Mrs Moxam, who had built the shop on the land. Mrs Moxam, when challenged on portions of her evidence, responded that she was a woman of integrity and that she wouldn't pay her “fare from the United States of America [where she lives] to come here and lie”. It is noteworthy however that at the commencement of her evidence she said, “I live here in Southfield, St Elizabeth”.

7 The learned acting Senior Resident Magistrate made several findings of fact. The critical findings so far as the suit is concerned were the following:

i. The respondent Russell had her own source of income and paid $120,000.00 from her bank account towards the purchase of the land;

ii. The respondent operated a bar on the...