Hamilton, Eric v Alric Brown
| Jurisdiction | Jamaica |
| Judge | Sinclair-Haynes, J. (Ag.) |
| Judgment Date | 01 October 2003 |
| Judgment citation (vLex) | [2003] 10 JJC 0101 |
| Date | 01 October 2003 |
| Court | Supreme Court (Jamaica) |
| Docket Number | SUIT NO. CL 2002/H054 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
REAL PROPERTY - Tenants in common - Unity of possession - Breach of oral agreement to divide property equally - Sale of parcel of property to defendant by co-tenant - Proceedings instituted by claimant for possession, damages for trespass and injunction to restrain defendant from creaating structure on property - Whether defendant had realistic prospect of success
The claimant Eric Hamilton and his cousin Fitzroy Hamilton, now deceased, acquired the Legal Fee Simple as tenants in common in property situate at Blackstonege in the parish of St. Ann and registered at Volume 1185, Folio 888, for the purpose of cultivating same.
The claimant has deponed that there was an oral agreement between them that the said property should be split down the centre for such purpose. This evidence is unchallenged.
In 1996 the deceased, Fitzroy Hamilton purportedly sold two and a half (2½) squares of the said property to the defendant. Indeed, he purportedly sold several other parcels to other persons.
In 1997 the defendant entered into possession of the said property and attempted, through his attorney to acquire a registered Title. As a consequence, his attorney invited the claimant to a meeting in her office. At that meeting, the claimant expressed his ignorance of the said sale and requested certain details of the sale, for example, price, from the said Fitzroy Hamilton, now deceased.
The claimant agreed to have the property surveyed. Upon survey, it was discovered that the parcel purportedly sold to the defendant encroached upon the claimant's section. Efforts to resolve the matter failed and the said Fitzroy Hamilton decided to refund the purchasers but the defendant refused to remove.
The defendant knew that the claimant was a co-tenant of the said property, because at the time he entered into the agreement of sale, he was shown the title to the said property which title bore the name of the claimant as co-tenant.
Fitzroy Hamilton died in 2001. He shall hereinafter be referred to as the deceased.
The claimant instituted proceedings against the defendant on the 2 nd May, 2002 for the following:
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a. Possession
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b. Damages for trespass
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c. An injunction restraining the defendant whether by himself, his servant or agents or otherwise, however from creating any structure, permanent or otherwise on the said land.
The defendant filed his defence to the said claim in which he stated that he purchased the said two and a half (2 ½) squares of land from the deceased. He denied entering wrongfully upon the claimant's land and that the claimant suffered any loss.
On the 11 th November 2002, the claimant filed a summons to strike out the defence and for leave to enter judgment. This was supported by affidavit.
The defendant has resisted this application by way of affidavit dated 6 th November, 2002, in which he reiterated that he purchased the said land from the said Fitzroy Hamilton.
Submissions by Mr. Rudolph Francis
Counsel for the defendant, Mr. Rudolph Francis has submitted that the omission of the word "Summary" from the summons precludes the judge from entertaining an application for summary judgment. He has argued that the matter ought to be tried and viva voce evidence adduced because the defendant has raised substantially triable issues. He cited the case of Wenlock v Moloney and others.
The omission of the word "Summary" is immaterial because now the judge may on his or her own initiative grant Summary Judgment.
Wenlock v Moloney (1965) 2 All ER 871 and others is no longer good authority. Judge Kennedy QC in the case Biguzzi v Rank Leisure 1999 4 All ER 934 said,
"I doubt very much whether any of the authorities can assist, although it is perfectly true, as Counsel both pointed out to me that in some of the later striking out cases ... there were some foreshadowing and expressions of views as to how things might be under the new order.
I have to say that this court's view after extensive training and a good deal of discussion and thought, is that the new order will look after itself and develop its own ethos ...reference to the old decisions and the old rules are distracting."
Part 15.2 of the Supreme Court of Jamaica Civil Procedure Rule states:
The Court may give summary judgment on the claim or on a particular issue if it considers the defendant has no real prospect of successfully defending the claim or issue.
Lord Justice Woolf, in considering the English provision under the English Civil Procedure Rules which is in every respect identical to ours, had this to say in the case of Swain v Hamilton (1999) The Times 2001 1 A11 ER 91.
"Under part 24.2 the Court now has a very Salutary power, both to be exercised in a claimant's favour or where appropriate, in a defendant's favour. It enables the court to dispose summarily of...
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