Marcia Hemmings v Attorney General of Jamaica et Al
| Jurisdiction | Jamaica |
| Judge | McCalla, J. |
| Judgment Date | 28 July 2004 |
| Judgment citation (vLex) | [2004] 7 JJC 2801 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. E315/1998 |
| Date | 28 July 2004 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
AGREEMENTS - Lease agreement - Termination - Breach of lease agreement - Recovery of possession - Mesne profits - Compensation for loss of approved structures
Introduction
The claimant, Marcia Hemmings, has been operating a food and beverage business, known as "Jamaica Gates", on government-owned lands on the Norman Manley Highway since 1982.
In 1990 she entered into a five-year lease, with an option to renew, with the Commissioner of Lands.
She has brought this claim against the Commissioner of Lands and the Attorney General seeking a declaration that she is entitled to a renewal of the lease. She also seeks a declaration that such renewal should be for a period of at least 40 years. Additionally, she claims damages for breach of the agreement or alternatively compensation for the permanent structures she has erected. In May 2003, the court made an order striking out the Commissioner of Lands as a party to the proceedings and references to "the defendant" now mean the Attorney General, who is appointed by law as the person to be sued in civil proceedings against the Crown.
The defendant is resisting her claim on the ground that she is in breach of certain clauses of the lease agreement and has counterclaimed for recovery of possession and mesne profits.
Claimant's case
In her witness statement, admitted as evidence in chief, Miss Marcia Hemmings sets out the circumstances in which she came into possession of the land on which she operates her business. She states that in 1982, she was looking around for a spot to continue operating her small food and beverage business and she identified such a place near the Harbour View roundabout on the Norman Manley Highway. After obtaining permission from the Jamaica Chamber of Commerce, she commenced operating there in 1982 in a temporary structure and operated her business in temporary structures for a number of years.
Then, after obtaining permission from relevant authorities, she erected sanitary facilities, rest room, store room and kitchen in 1985. These were permanent structures.
The lands being government-owned, she commenced negotiations with the Commissioner of Lands and eventually both parties entered into a lease agreement in 1990 for a term of five years, with an option to renew.
Miss Hemmings said that she had been trying to obtain a long lease but she accepted an initial term of five years after assurances by the Commissioner of Lands that on renewal she would be granted a long term if she developed the property. Other lessees along the strip had been granted long leases. She relied on those promises and assurances. Consequently, at great expense, she has erected a bar and restaurant of concrete and steel. It must be noted that the application for permission to erect those buildings was submitted in January 1989 and the lease agreement was signed in August 1990. She relies on certain documents she has exhibited, to say that she has obtained the requisite approval in compliance with Clause 2 (iii) of the lease which stipulates as follows:
"To erect no permanent structure on the leased premises except with the approval of the local Planning Authority."
She has exhibited correspondence concerning her application for renewal of the lease and the refusal of the Commissioner of Lands so to do. She says that she was not served with a notice to quit. She has resisted attempts by government agencies to demolish the buildings and forcibly eject her from the premises. She maintains that she is entitled to a renewal of the lease and remains in possession as a statutory tenant. She has suffered loss because her once thriving business has diminished considerably because of the insecurity of her tenure. She seeks a declaration that she is entitled to a renewal of the lease dated 24'h September 1990 and a declaration that such renewal should be for a long term. Further, she claims damages for breach of the agreement and alternatively, compensation for the structures and damages for loss of goodwill and loss of income. Miss Hemmings' son Orlando Gordon, an Accountant, gave testimony relating to the accounts attached to his witness statement and summaries of certain activities carried on at Jamaica Gates during the relevant period.
Miss Hemmings contends that Clauses 4(iv) and 4(v) of the lease agreement do not affect her as they deal with temporary structures. Clause 4(iv) states:
"The Lessee with the consent of the lessor may erect such temporary structure or structures in accordance with Clause 2(v) PROVIDED THAT such structure or structures are not erected within ONE HUNDRED (100) FEET of the main road's centre line."
and Clause 4 (v) provides that:
"At the end of the term hereby created, the end of any renewal thereof, or any sooner determination the lessee shall ensure the removal of all temporary structures erected on the leased premises and subsequently restore the leased premises to a state approved by the lessor."
Defendant's case
The defendant denies that the claimant is entitled to the reliefs claimed and contends that she is in breach of certain terms of the lease. Further, she is not entitled to a renewal of the lease. The defendant relies on the planning approval granted to the claimant and the terms of the lease agreement entered into by the parties. As stipulated in that approval, with the exception of certain buildings, no solid structures should have been erected on the land.
The defendant counterclaims for mesne profits and recovery of possession, alleging that the claimant has breached certain covenants and conditions of the lease. Under the terms of the agreement, a written notice to quit was served on her and she has failed to deliver up the leased premises. She is therefore in possession as a trespasser, the lease having been determined by effluxion of time.
At trial, the defendant was unable to prove, as pleaded, that a notice to quit had been served on the claimant and abandoned that aspect of the defence.
Miss Joy Alexander, Director of the Planning and Development Division at the National Environment and Planning Agency, testified that in 1987, she received a letter from the Ministry of Agriculture requesting her department's comments on a proposal by Miss Hemmings to lease the land for a period of 25 years with an option to renew.
She responded, stating that her department had no objections provided that certain conditions were met. She also wrote to other governments departments and received responses, which she states were reflected in conditions specified in the lease.
On January 11, 1989, Miss Hemmings applied for permission to erect a bar and restaurant. Her application was deferred as members of the Town and Country Planning Authority were concerned about development along the Norman Manley Highway. Miss Hemmings' application was eventually approved. The approval was granted by the Town and Country Planning Authority (Exhibit 5b) on July 4, 1989, subject to recommended conditions, which included the following:
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3. "no solid structures except sanitary facilities, rest room and store room shall be erected on the site;
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4. no structure shall be erected less than one hundred (100) feet from the centre line of the road;
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5. all buildings being demolished at the applicant's/lessor's expense on the expiration of the lease;.
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8. The parking area being laid out as indicated in red on the site layout plan."
The claimant's building application was also approved.
Miss Alexander testified further that in 2003, she visited the leased premises and discovered a number of breaches of the planning and building permission, to wit:
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(i) a guard house constructed of concrete at the entrance to the premises;
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(ii) two structures to the rear of the premises;
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(iii)...
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