Keith Garvey v Ricardo Richards

• Jurisdiction: Jamaica
• Judge: HARRIS JA
• Judgment Date: 27 May 2011
• Neutral Citation: JM 2011 CA 47
• Docket Number: RESIDENT MAGISTRATES' CIVIL APPEAL NO. 12/2010
• Court: Court of Appeal (Jamaica)
• Date: 27 May 2011

BETWEEN

KEITH GARVEY

APPELLANT

AND

RICARDO RICHARDS

RESPONDENT

[2011] JMCA Civ 16

BEFORE:

THE HON. MRS JUSTICE HARRIS JA

THE HON. MR JUSTICE MORRISON JA

THE HON. MR JUSTICE HIBBERT JA (Ag)

RESIDENT MAGISTRATES' CIVIL APPEAL NO. 12/2010

JAMAICA

IN THE COURT OF APPEAL

CONTRACT - Breach of contract - Damages - Leave to appeal - No case submission - Whether the magistrate failed to put the appellant to call evidence to stand on its no case submission

Miss Jacqueline Cummings instructed by Archer Cummings & Company for the appellant

Leymon Strachan instructed by Strachan, Strachan & Company for the respondent

HARRIS JA

1 This is an appeal challenging the judgment of Her Honour Mrs Jennes Anderson, delivered in favour of the respondent. On 12 April, 2011 we allowed the appeal and ordered that the judgment of the Resident Magistrate be set aside and awarded costs of $15,000.00 to the appellant. We now put our reasons in writing.

2 On 19 December, 2008 the respondent instituted proceedings against the appellant and a Mr Donald Salmon claiming damages of $250,000.00 for breach of contract. His claim was particularized in the following terms:

‘We went into an agreement to coach players for national team assist tournaments, umpiring and maintenance training and preparation for team trials and National Club League matches Plaintiff and defendant agreed (sic) $30,000 per month. However defendants have failed to pay plaintiff up until now.’

3 He stated that he was the manager of the Table Tennis Club. He asserted that he had conversations with the appellant, on the telephone and at the Young Men's Christian Association (YMCA), about conducting the training of junior and senior table tennis players, on behalf of the Jamaica Table Tennis Association (JTTA). The appellant, he said, told him that four separate tables and four evenings per week would be required for the coaching of the players. He further said that the appellant was responsible for payment for training purposes and that the appellant informed him that he would pay him monthly, or at the end of each training programme. After each training programme, he declared, the sponsors would give money to the appellant who would in turn give him money from it.

4 He went on to say that he informed the appellant that his fees would be in excess of $20,000.00 monthly and that the appellant told him that he would be paid as soon as he received the money. The appellant did not communicate with him thereafter and although he trained the participants for two and a half years, he was never compensated.

5 The learned Resident Magistrate heard the evidence adduced by the respondent. The appellant's attorney-at-law made a no case submission. The learned Resident Magistrate then proceeded to make the following orders:

‘Judgment for $250,000.00 against (sic) first Defendant. No case submission against (sic) second Defendant upheld. Costs to Plaintiff to be halved and to be agreed or taxed.’

6 The following grounds of appeal were filed:

• ‘1. The Learned Magistrate erred in finding that a prima facie case had been established against the Appellant/1 ^st Defendant by the Respondent/Plaintiff.

• 2. The Respondent/Plaintiff failed to provide evidence that any contract or agreement existed between himself and the Appellant/1 ^st Defendant in his personal capacity.

• 3. The Learned Magistrate failed to put the Appellant/1 ^st Defendant to an election to call evidence of (sic) stand on his submissions before deciding the no case submission. ’

7 The issues arising are:

• (a) whether there was a concluded agreement between the appellant and the respondent upon which the learned Resident Magistrate could have entered judgment in favour of the respondent.

• (b) whether the learned Resident Magistrate ought to have put the appellant to his election to stand on his no case submission or call evidence.

8 Miss Cummings submitted that the learned Resident Magistrate acknowledged that there was an agreement in the making between the appellant and the respondent, yet concluded that there was a binding agreement between them. She contended that no binding agreement had been made between the parties. She argued that all essential terms must be present in a concluded agreement and the evidence of the respondent did not disclose that any terms were agreed upon by them.

9 Mr Strachan quite properly conceded that the learned magistrate had erred.

10 It is a well-settled rule that an agreement is not binding as a contract unless it shows an intention by the parties to create a legal relationship. Generally, three basic rules underpin the formation of a contract, namely, an agreement, an intention to enter into the contractual relationship and consideration. For a contract to be valid and enforceable all essential terms governing the relationship of the parties must be incorporated therein. The subject matter must be certain. There must be positive evidence that a contractual obligation, born out of an oral or written agreement, is in existence.

11 Ordinarily, in determining whether a contract exists, the question is whether the parties had agreed on all the essential terms. In so doing an objective test is applied. That is whether, objectively, it can be concluded that the parties intended to create a legally binding contractual relationship. In RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH & Co KG UK (Production) 2010 3 All ER 1 Lord Clarke, at paragraph 45, describes the applicable test to be as follows:

‘Whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations. Even if certain terms of economic or other significance to the parties have not been finalized, an objective appraisal of their words and conduct may lead to the conclusion that they did not intend agreement of such terms to be a precondition to a concluded and legally binding agreement.’

12 The essential terms of an agreement must at all times be present and must be clear and unequivocal. The court cannot impose a binding contract on the parties upon which they had not agreed. It cannot read into an agreement terms and conditions which in effect would support its validity and enforceability.

13 The learned Resident Magistrate, in giving her reasons for judgment, dealt with it in this manner:

‘There appeared to have been...