Hadeed Holdings Ltd v Anderson's Haulage Services Ltd
| Jurisdiction | Jamaica |
| Judge | Sinclair-Haynes J |
| Judgment Date | 04 November 2011 |
| Judgment citation (vLex) | [2011] 2 JJC 0401 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2007 HCV 0152 |
| Date | 04 November 2011 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN CIVIL DIVISION
Land - Whether defendant is a trespasser or tenant-at-will — Whether the defendant was allowed to occupy land pending sale of property - Whether claimant is entitled to damages for trespass by way of mesne profits - Whether defendant is a purchaser who is entitled to specific performance
1. The claimant, Hadeed Holdings Limited claims from the defendant, Anderson's Haulage Services Limited, the sum of US$62,314.82 which translates to J$4,191,917.90 inclusive of GCT, at the rate of 16.5%. This claim is for the use and occupation of 16,256 square feet of land registered at Volume 1332 Folio 310 of the Register Book of Titles for the period September 2001 to June 2005 (46 months) and alternatively for damages for trespass.
2. The defendant resists vigorously this claim and has counter-claimed against the claimant that it is entitled to the said portion of land.
Background
3. The defendant purchased land at Ashenheim Road in 1977 from the claimant through its managing director, Mr. Ray Hadeed who died in 2006. At the time of purchase, there was uncertainty as to the delineation of the portion of land the defendant was purchasing. Mr. Hadeed allowed the defendant to park vehicles on the portion of land in issue.
Defendant's Case
4. The defendant's claim is that in 1997, the defendant's managing director, Mr. Arthur Anderson negotiated with Mr. Ray Hadeed to purchase one acre of land at 19 Ashenheim Road. Mr. Ray Hadeed represented on behalf of the claimant that they were able to sell one acre of land. The land which was shown to Mr. Arthur Anderson by Mr. Ray Hadeed was comprised of three parcels namely:
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a. all land comprised in Certificate of Title registered at Volume 1332 Folio 309 of the Register Book of Title;
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b. an unregistered parcel of land adjacent to land described at one (1) above;
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c. a portion of land registered in the Certificate of Title at Volume 1332 Folio 310.
5. The sums of $2 million and $2.5 million were paid to Mr. Ray Hadeed on the 19 th March 1997 and on the 4 th June 1997 respectively. Those sums represented the purchase price for the land registered in the Certificate of Title at Volume 1332 Folio 310. The sum of $3,850,000.00 was paid to Messrs Donald Bernard & Company who were the attorneys-at-law with carriage of sale and who acted for both vendor and purchaser. This sum represented the full purchase price for lots registered at (1) and (2) above. The defendant was allowed to take immediate possession upon the payment of the full purchase price.
6. In 2001, Messrs Donald Bernard & Company registered the transfer to the defendant of title to the property registered at Volume 1332 Folio 309 and the unregistered portion.
7. However, the claimant has failed to transfer to the defendant the portion of land registered at Certificate of Title Volume 1332 Folio 310, although the defendant remained in possession of it from 1997 – 2005 and exercised rights in and over the said land without interference.
8. The defendant denies having trespassed on the claimant's property and denies that there was any agreement to pay for the use and occupation of the premises. The defendant now seeks by way of counterclaim:
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a. a declaration that it is entitled to the portion of property registered at Volume 1332 Folio 310;
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b. an Order that the said land be transferred to it.
Careful scrutiny of the evidence is critical.
Mr. Russell Hadeed's Evidence
9. Mr. Russell Hadeed testified on behalf of the claimant. In his evidence-in-chief, he denied that the land was represented to the defendant as an acre. He asserted that during the negotiations, the land was surveyed and it was discovered that it was less than one acre. The negotiations continued and ended with the full knowledge of the true size of the land. The defendant was let into possession of the following portions of land:
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a. all the land registered at Volume 1332 Folio 309;
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b. an unregistered parcel of land adjacent to the land registered at Volume 1332 Folio 309.
10. According to him the land registered at Volume 1332 Folio 310 never formed part of the sale agreement between the claimant and the defendant. According to him, the initial sale price which was discussed by the parties as consideration for the land now registered at Volume 1330 Folio 309 was $9 million. However, upon survey by the defendant, it was discovered that the claimant's buildings encroached on the property registered at Volume 1332 Folio 310. Consequently, the agreed sale price of $9 million was reduced to $8,350,000.00. The adjustment reflected the reduced size.
11. The sum of $4,500,000.00 was paid in two tranches by the defendant - $2 million and $2.5 million. The balance of $385,000.00 has not been paid. He alleges that entry of the sum of $385,000.00 which was endorsed on the duplicate certificate of the registered title was fraudulently and/or negligently made by the defendant or his attorney. It is his evidence that the defendant was never let into possession of the portion of land registered at Volume 1332 Folio 310. The defendant trespassed upon that portion of land.
12. It is Mr. Russell Hadeed's evidence that upon discovering the trespass to the land situated at Volume 1332 Folio 310, the defendant's agent acknowledged the claimant's title to the land by the following actions:
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a. entering into negotiations with the defendant for the continued use and occupation of the land;
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b. relying on letters dated June 8, 2005 and June 15, 2005. By these letters, he asserts that the defendants acknowledged that the claimant was the legal and beneficial owner and is entitled to possession of the land;
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c. constructing a wall between the claimant's property and its property.
Evidence of Mr. Arthur Anderson
13. Mr. Anderson's evidence is that the defendant did not trespass on the said parcel of land registered at Volume 1332 Folio 310. According to him, the defendant has been defrauded of land it paid for and is claiming that the disputed land be transferred to it.
14. It is his evidence that he negotiated with Mr. Ray Hadeed to purchase one acre of land at Ashenheim Road. He made it clear that the defendant required a minimum of one acre of land for its operation. He was assured by Mr. Ray Hadeed that the area of land measured 44,203.65 square feet, which was over one acre. He was shown a survey diagram which he was told was the size of the land being offered. The survey showed that the land measured 44,203.65 square feet. In reliance on the representation, he paid the sum of $2 million on the 19 th March 1997. Subsequent to the payment of $2 million, the defendant entered into a Sale Agreement with the claimant in respect of the said land on or about the 4 th June 1997.
15. He later contracted a chartered surveyor who surveyed the property at Ashenheim Road and discovered that the property measured less than one acre. Upon receipt of that information, he demanded a refund of the money he paid. However, Mr. Ray Hadeed told him, ‘Junior … all the properties are mine, you can park your equipment right behind Serv-Wel Electric Limited.’ Counsel for the claimant cross-examined Mr. Anderson extensively on this issue and did not at any time during the hearing object to this evidence being admitted. However, in his closing submissions, he took issue with the statement as being hearsay.
16. Upon payment of the full purchase price, he was put in possession of a strip of land of approximately one acre in order to fulfil Mr. Hadeed's obligations to the defendant. The defendant took possession of the following three parcels of land:
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a. land which was formerly comprised in Certificate of Title registered at Volume 1293 Folio 567;
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b. land registered at Volume 1290 Folio 976 which in 1977 belonged to Serv-Wel Electric Limited;
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c. an unregistered parcel of land adjacent to land registered Volume 1293 Folio 567 (now Volume 1321 Folio 350).
17. The purchase price was paid in full, part to Mr. Ray Hadeed and part to Mr. D. Bernard of Donald Bernard & Company. The defendant took occupation of the land by moving its trucking equipment onto the land and improving and maintaining the said land. Indeed it (the defendant) incurred costs of $870,000.00 levelling the land to facilitate the parking of its equipment. It also added proper lighting to the entire property. The defendant remained in possession of the entire property from 1997 to 2004 without interference.
18. Sometime between 1997 and 2001, Mr. Ray Hadeed changed the land holding of the properties as follows:
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a. property formerly registered at Volume 1293 Folio 567 of the Registered Book of Titles and which was sold to the defendant was sub-divided on 5 th March 2004 and a portion of that land is now comprised in Certificate of Title registered in Volume 1332 Folio 310 registered in the name of Hadeed Holdings Limited;
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b. another portion of the land registered at Volume 1293 Folio 567 is now registered at Volume 1332 Folio 309 of Registrar Book of Titles. This parcel was eventually transferred to the defendant;
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c. land which was formerly registered at Volume 1290 Folio 976 and was previously owned by Serv-Wel Electric Limited was registered as part of land registered at Volume 1332 Folio 310 in the name of Hadeed Holdings Limited;
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d. the unregistered portion was eventually registered.
19. At the time, the parcel of land which was registered at Volume 1332 Folio 310 was transferred to the claimant; the defendant had been in possession of it, had maintained and significantly improved it and was exercising rights of...
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