Levy v Jamaica Re-development Incorporated Fund and Tomlinson
| Jurisdiction | Jamaica |
| Judge | Morrison, J.A. |
| Judgment Date | 11 July 2008 |
| Neutral Citation | JM 2008 CA 52 |
| Docket Number | Application No. 47 of 2008; Civil Appeal No. 26 of 2008 |
| Court | Court of Appeal (Jamaica) |
| Date | 11 July 2008 |
Court of Appeal
Morrison, J.A.
Application No. 47 of 2008; Civil Appeal No. 26 of 2008
Mr. Raphael Codlin instructed by Raphael Codlin & Co. for the appellant.
Mrs. Sandra Minott-Phillips and Miss Sanyo Young, instructed by Myers Fletcher & Gordon, for the 1st respondent.
Mr. Maurice Manning instructed by Nunes, Scholefield, Deleon & Co. for the 2nd respondent.
Civil practice and procedure - Application for injunction pending hearing of appeal against refusal to grant injunction restraining respondent from exercising any control over parties in dispute — Test is whether the appellant has a reasonable ground of appeal — Application dismissed.
The application for an injunction pending the hearing of the appeal is dismissed. The costs of the application are costs in the appeal with a special costs certificate granted to both parties.
This is an application for an injunction pending the hearing of this appeal from an order made on 29 February 2008 by Jones J. in the Supreme Court. The learned judge refused the appellant's application for an interlocutory injunction, until the trial of his action in that court, in terms similar but not identical to the injunction sought on this application, which is as follows:
“That the 1st defendant, Jamaican Re-development Foundation, Inc., either by itself, its servant, agent or otherwise or the 2nd defendant, Kenneth Tomlinson, be restrained from selling, mortgaging or in any other way, disposing of the properties or any portion or portions of the properties listed in the Claim Form and Particulars of Claim in these presents until the appeal in this matter is heard or until this Honourable Court otherwise orders.”
The appellant's claim against the respondents in the Supreme Court is for recovery of possession of land registered in some thirty Certificates of Title, for various declarations, for damages for trespass, as well as general damages, and for an injunction restraining the respondents from continuing to occupy the said properties.
This claim is prompted by the 1st respondent's claim to be entitled to exercise its powers as assignee and registered proprietor of mortgages of the appellant's properties, as a result of the alleged indebtedness of the appellant to the respondent in the sum of approximately $846 million, and the 1st respondent's appointment of the 2nd respondent as receiver pursuant to the mortgage deed.
The appellant challenges the respondent's right to recover the debt on the basis that, while he acknowledges having mortgaged certain of his properties to Jamaica Citizen's Bank in 1997 and also to Eagle Commercial Bank in 2001, he has made substantial payments on account of the debt, which is not therefore due. In any event, the appellant says further, the 1st respondent is,
“neither an assignee nor a legal successor in title to any sum which [he] may owe to any other person. The appellant accordingly challenges the propriety of any purported assignment to the 1st respondent of any debt due from him and contends that the 1st respondent is therefore not entitled to make any claim against him in relation to the properties aforesaid or at all.”
The 1st defendant pleads by way of defence that it is the assignee of the mortgages and the debts thereunder, that it is as a result the registered mortgagee of the said properties and entitled thereby to exercise the rights of a mortgagee to appoint a receiver under the instruments of mortgage and under the Registration of Titles Act. The 1st respondent also claims to be entitled to recover the debt claimed pursuant to the said mortgages.
The appellant made an application to the Supreme Court for an interlocutory injunction barring the respondents from occupying or from doing any acts or taking any steps to exercise any control or authority over the said properties. This application was heard inter partes by Jones J and refused by him on 29 February 2008. While there is no written judgment, nor have I been provided with a note of the judge's reasons for declining to grant the injunction, the appellant in an affidavit filed in support of the application to this court has stated that the judge indicated “that the law is clear…that it is only if the claimant paid to court, the amount claimed by the 1st [respondent] that an injunction could by law be granted”.
Nothing now turns on the curious fact that on 11 March 2008, the same day on which the appeal was tiled, the appellant sought and obtained from Donald McIntosh J. in the Supreme Court an ex parte interim injunction in terms identical to the order now sought for a period of 2 days. However, it is not readily apparent why this application was entertained ex parte a mere two weeks after the refusal of an inter parte's application, at the hearing of which the parties had been represented by counsel.
The appellant's grounds of appeal are as follows:
“1. The learned judge misdirected himself both on the facts and on the law in saying that the law is clear and the claimant could not get an injunction unless the amount is paid into court.
2. The learned judge did not apply the law as set out in the cases referred to him by the claimant and in the Moneylending Act.
3. The learned judge's assertion that the law is clear and that the claimant is not entitled to the injunction, is not consonant with the principles enunciated both in the Court of Appeal and in the Privy Council.
4. If the injunction is not granted and the 1st defendant, a foreign Company was to sell the claimant's property which is valued over $800M and repatriate the proceedings, there could be no protection for the claimant if the claimant is successful when the matter is tried.”
The appellant filed two affidavits in support of this application (to the first of which he exhibited earlier affidavits sworn to and filed by him in the Supreme Court proceedings), while 1st respondent relied on a single affidavit sworn to by its Chief Executive Officer, Miss Janet Farrow. The appellant's affidavits raised queries as to the corporate standing of the 1st respondent in Jamaica and the State of Texas (its place of incorporation), as to whether the 1 st respondent's actions were in breach of the Moneylending Act and with regard to alleged discrepancies in the amount claimed to be due on the alleged debt from the appellant to the 1st respondent at different times. The appellant also averred (for the first time in his affidavit filed in this court, sworn to on 30 June 2008) that the mortgage deed signed by him on 20 February 2001 had been signed under duress and without the benefit of legal advice or knowledge of what he was doing. Miss Farrow's affidavit averred and exhibited documents to show that the company is in good standing, both in Jamaica and Texas, and also exhibited among other things the Instrument of Mortgage dated 20 February 2001 acknowledging a total indebtedness to Eagle Commercial Bank as at that date of $34.6 million as well as certificates of title showing the 1st respondent as the registered proprietor of mortgages on several of the appellant's titles.
Mr. Codlin for the appellant...
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