Loren Edwards (Pursuant to a Power of Attorney) Ann Marie Vaciana


[2019] JMSC Civ 76


Henry-McKenzie, J. (Ag.)

CLAIM NO. 2016 HCV 03781

Loren Edwards (Pursuant to a Power of Attorney)
Ann Marie Vaciana

Mr. Glenroy Mellish instructed by Byfield, Mellish & Rushton for the Claimant.

Miss Nicola Allison instructed by Brown, Godfrey and Morgan for the Defendant.

Summary Judgment — Application for — Registered Land — Memorandum in Writing — Proprietary estoppel — CPR Part 15

Henry-Mckenzie, J (Ag)


The claimant claims on behalf of Keith Currie and Sybil Currie, the registered proprietors of the property now in dispute, that is, property registered at Volume 1212 Folio 467 of the Register Book of Titles with civic address at Comfort Hall in the parish of Manchester. The claimant is authorized to bring this claim by a Power of Attorney registered in the Island Records Office.


The Curries relocated to Jamaica in 1991 and in about 1996, the defendant was hired by them to perform general household duties. In about 2003, the defendant, because of personal issues at home, was allowed by the Curries to live on the property through some arrangement the nature of which is disputed. The defendant as a result, with the consent of the Curries, built a small board structure on the property to house her two children and herself, which was eventually upgraded to a concrete structure.


Overtime differences developed between the parties and the defendant's employment was terminated with effect from March 31, 2015. A notice to quit was served on the defendant on May 6, 2015, but she refused to give up possession. The claimant as a result brought a claim for the recovery of possession of the land and for a declaration that all gifts of money made to the defendant by the Curries were made as a result of undue influence of the defendant over the Curries. The claimant also sought an order for the repayment of the monies.


The defendant filed a defence to the claim in which she denies and disputes the particulars of claim. She alleges that the land was gifted to her by a memorandum in writing executed by the Curries and that she constructed the dwelling house thereon in the full view of the claimant and his principals (the Curries). The defendant counterclaims for a declaration that she is entitled to have legal title to that parcel of the land transferred to her, an order that the claimant and/or his principals procure a subdivision plan, an order for splinter title and an order that the said splinter title be endorsed in her name. The claimant in response to the defendant's defence and counterclaim put the defendant to strict proof of the authenticity of the document which purports to make a gift of the disputed land. The claimant has now filed an application for summary judgment pursuant to Part 15 of the Civil Procedure Rules 2002 (CPR). It is this application which is now before the court.


In the Relisted Notice of Application for Court Orders, supported by affidavit of Loren Edwards, the claimant seeks an order for summary judgment to be entered against the defendant in that, “the Counterclaim and Defence which were filed herein on November 22, 2016 have no real prospect of success.” The application is grounded on the fact that the memorandum relied on by the defendant is inadmissible and could not convey an interest in the lands belonging to the claimant's principals, the land being registered. The claimant also raised the point that the purported gift of land is incomplete and the court has no jurisdiction to perfect an imperfect gift. Further, that the arrangement for gifting part of the land was illegal and the court could not enforce it.


Counsel for the claimant, Mr. Mellish, indicated that the claimant would not contest the validity of the document being relied on by the defendant for the purpose of this application.


Mr. Mellish in making his submissions, contended that no effective gift of land by the document, “Memorandum in Writing” was made and the court cannot perfect an imperfect gift, nor can the owners be forced to give up a part of their land. Counsel advanced that this document relied on by the defendant is fraught with imperfections. According to counsel, the document is not only unstamped, but that its contents express a conditional gift which no evidence has been brought to show has been satisfied and it also fails to properly identify the parcel of land.


Mr. Mellish also submitted that the gift was not effective, as the land being registered land, the prescribed procedure for transfer of registered lands must be followed, which was not done in this case. The document presented does not resemble any such form of transfer. He relied on the case of Diana Ramona Johnson v Ivy Johnson Suit No E 379 of 2000 (unreported) Supreme Court, Jamaica, (judgment delivered October 25, 2002) to ground his submission. I will rehearse counsel's synopsis of the facts: The father had made a grant of land to his daughter in a passage in his divorce papers. There was no evidence whether the land was registered, but the court concluded, obiter, that a gift of registered land takes effect only by registered transfer and as such the gift was unenforceable. Counsel also relied on Halsbury's Laws of England Volume 20 paragraph 62 which states:

“If a gift is to be valid the donor must have done everything which, according to the nature of the property comprised in the gift, was necessary to be done by him in order to transfer the property and which it was in his power to do….An incomplete gift can be revoked at any time; there is a power to draw back so long as the gift is incomplete. No question of conscience enters into the matter, for there is no consideration and there is nothing dishonest on the part of an intending donor who changes his mind at any time before the gift is complete.”


Reference was also made by Counsel to two statutory provisions, which he argued will affect any gifting of the land, that is, The Local Improvements Act and the Records of Deeds, Wills and Letters Patent Act. In relation to the Local Improvements Act, counsel focused on sections 5, 12 and 13. These sections detail the requirement to submit subdivision plan to parish council before building on land or sale of land, the penalties for failing to comply and the unenforceability of a contract for sale where there is noncompliance. Counsel submitted that under the Act, a gift is also defined as a sale. As it relates to the Records of Deeds, Wills and Letters Patent Act, counsel submitted that if the document in question, that is, the Memorandum in Writing, was intended to be a deed of Indenture, it would be affected by section 2 of the Act, which requires acknowledgment, proof and recording of a deed before any freehold interest can be passed, thereby affecting the defendant's claim. As such, Counsel continued, this claim can be summarily decided given the legal position in relation to registered land. He further argued that the defendant has cast her lot on a document which cannot achieve what it tries to do.


Ms. Allison for the defendant opposed the application for summary judgment. She relied on the authorities of Swain v Hillman [2001] 1 All ER 91 and Victor Gayle v Jamaica Citrus Growers and Anthony McCarthy claim no. 2008 HCV 05707 (unreported) Supreme Court, Jamaica (judgment delivered April, 4, 2011) for a definition of the expression “real prospect of success.” She pointed to the fact that Lord Woolf MR in Swain v Hillman said the expression, “real prospect of success” did not need any amplification as the words spoke for themselves. Further, that the word “real” directed the court to examine whether there is a realistic as opposed to a fanciful prospect of success. Counsel cited examples of situations in which a claim is considered to be fanciful. These include situations where a statement of case is contradicted by all documentary evidence or any other material, where the defence put forward is clearly a sham and where similar defences shown to be false, was advanced in previous litigation.


Counsel then went on to argue that in the instant case, there is much merit to the defendant's case and that the defendant has a real prospect of successfully defending the claim. Her defence is not merely fanciful. According to counsel, certain representations were made to the defendant by the Curries, and the defendant as a result, acted on those representations to her detriment by expending money to build a concrete structure home with the encouragement of the Curries. As such, counsel submitted, although certain formalities were not complied with, the defendant has a shield and sword in equity.


In grounding the defence on the doctrine of proprietary estoppel, counsel referred to the authorities of Hughes v Metropolitan Railway Co [1877] UKHL 1 and Central London Property Trust Ltd v High Tress House Ltd [1947] KB 130 which provide an exposition of this equitable principle. Based on these cases, counsel pointed out that the doctrine of proprietary estoppel articulates that if a party leads another party to believe that he will not enforce his strict legal rights, which that party had acted on to his detriment, then the courts will prevent him from doing so at a later stage.


Counsel also placed reliance on the cases of Maxville Trenchfield v Leslie [1994]...

To continue reading