Marlene Street-Forrest and Keena Street v Francine Phillipps
| Jurisdiction | Jamaica |
| Judge | MORRISON JA , DUKHARAN JA , PHILLIPS JA |
| Judgment Date | 30 June 2011 |
| Neutral Citation | JM 2011 CA 65 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CIVIL APPEAL NO. 80/2010 |
| Date | 30 June 2011 |
[2011] JMCA Civ 19
JAMAICA
IN THE COURT OF APPEAL
THE HON MR JUSTICE MORRISON JA
THE HON MR JUSTICE DUKHARAN JA
THE HON MISS JUSTICE PHILLIPS JA
SUPREME COURT CIVIL APPEAL NO. 80/2010
Gavin Goffe instructed by Myers Fletcher and Gordon for the appellants
Miss Carol Davis for the respondent
INJUNCTIONS - Discharge of - Whether there was a serious issue to be tried - Registration of Titles Act, s. 85
I have read in draft the judgment of my sister Phillips JA. I agree with her reasoning and conclusion. There is nothing further I wish to add.
I too agree with the reasoning and conclusion of Phillips JA and have nothing to add.
This is an appeal from the decision of Brown J (Ag) made on 3 June 2010, wherein he discharged an interim injunction granted without notice, on 20 April 2010, by Thompson-James J for a period of 28 days, or until further order of the court. The application for an interlocutory injunction was set for further consideration, inter partes, on 18 May 2010, was heard, and, as indicated, the injunction was discharged by Brown J (Ag). In discharging the injunction the learned judge gave an oral judgment in these terms:
‘The claim for an interim injunction has not been made out. The 2 nd Defendant has an apparent entitlement to herself bringing an action to get the Claimants out of the portion of the premises she formerly occupied based on the continued maintenance of security apparatus to show she maintained occupation of the place. It would not be promoting justice to exclude the 2 nd Defendant.’
On 14 June 2010 the appellants appealed the decision on the grounds that:
‘(1) The learned judge erred when he sought to determine questions of fact at the interlocutory injunction hearing instead of identifying whether there was a serious issue to be tried.
(2) The Claimants showed that there is a serious issue to be tried as to whether the 2 nd Defendant has lost the right to re-enter the premises and satisfied the other tests for the grant of an injunction and the learned Judge ought to have exercised his discretion in favour of granting the injunction to preserve the status quo.’
The appellants therefore sought, on appeal, an order setting aside the order refusing the injunction and an order restraining the respondent from entering the said property until the trial of the claim or until further order of the court.
The appellants had commenced their claim by fixed date claim form on 20 April 2010, against the Registrar of Titles (1 st defendant) and the respondent (2 nd defendant) seeking declarations that the respondent had no right to re-enter the property at 12a Tucker Avenue, registered at Volume 1088 Folio 372 of the Register Book of Titles, (the said property), and that the appellants were entitled to make an application under section 85 of the Registration of Titles Act for title acquired by possession in respect of the said property.
In the particulars of claim the appellants stated that they both resided at the said property, the 2 nd appellant, the daughter of the 1 st appellant having done so from birth. The said property is situated at the corner of Tucker Avenue and Robertson Avenue, is comprised of 7,250 square feet, and a duplex dwelling home is constructed thereon. Of importance is the fact that each side of the duplex is independent of the other, separated by a concrete wall, with access to the said property through one gate that opens out onto Tucker Avenue. The 1 st appellant has been residing on the said property since 1978. At that time, she had been a tenant of the estate of Rupert Williams, deceased and had paid rent to his executor Mr Kavanaugh. Mr Williams was the registered proprietor of the said property. When Mr Kavanaugh died sometime in 1990, the 1 st appellant stopped paying rent as no one came forward to collect the same either on behalf of his estate or that of Mr Williams. Thus, since 1990 the appellants aver that they have remained in open and exclusive possession of one-half of the duplex on the said property.
The appellants also stated that since 1978, the other half of the duplex had been occupied by one Winnifred Hugo and subsequently by her daughter, the respondent, when Mrs Hugo went to reside overseas. However, in 2005 the respondent served them with a notice to vacate the said property on the basis that Mrs Hugo without their knowledge had obtained a certificate of title for the said property by adverse possession. Needless to say, action was filed by the appellants and this certificate of title was later cancelled pursuant to an order of Beckford J and the previous title was reinstated. The learned judge also ordered that the notice given by Mrs Hugo to the appellants to vacate the said property, was null and void. Between 2005 and 2009 the appellants and the respondent continued in occupation of the said property.
It is the appellants' contention that in August 2009, the respondent packed all her belongings and vacated the said property without advising them of her intention to do so, or of any forwarding address, and has not returned to reside there since then. The appellants stated that in September 2009 they took steps to secure the said property and placed a chain and padlock on the only gate to the property, and in November 2009 they entered the other side of the duplex, changed the locks on the doors, and commenced using the area for storage of their belongings. They maintained that they were the only persons residing on the property who have done so ‘openly and continuously for in excess of 12 years and are therefore the only persons entitled to make a claim for possessory title under the Registration of Titles Act’. They claimed that they had expended sums to maintain the said property, including repairs to the sewerage pit, the exterior of the property and paying property taxes.
In the particulars of claim the appellants pleaded further that on 15 April 2010, the respondent forcibly entered the property and removed the locks placed there by them. The police were summoned and they endeavored to assist the respondent to remove her belongings, but it is the appellants' contention that since none were there, she was unable to identify any. The appellants thereafter changed the locks installed by the respondent, replaced the chain on the gate, and contemporaneously with the filing of the documents initiating the suit, filed the application for interim injunction and obtained the same, ex parte, as indicated previously. The grounds for the application for the injunction in the main, were that the respondent had abandoned the premises and had gone to reside elsewhere, and as she was not an owner, tenant or occupier, she had no right to enter the said property. The appellants could however apply for a possessory title in respect of the whole premises, and any re-entry by the respondent could prejudice the appellants' rights, which were yet to be determined by the courts. There were therefore serious issues to be tried and damages would not be an adequate remedy. The 1 st appellant swore to an affidavit attesting to the facts set out in the particulars of claim.
An acknowledgement of service was filed by the respondent on 13 May 2010 indicating that she had received the claim form and the particulars of claim, that she intended to defend the claim and gave her address as 12a Tucker Avenue, Kingston 6. Her affidavit in response was filed simultaneously, in which she averred that her side of the duplex was larger than that which was occupied by the appellants, and that she had been in continuous occupation of her portion of the duplex since 1974, and had paid no rent since 1988, as she deponed that that was when Mr Kavanaugh had died. She stated that her mother had lived there also for many years, and still returned to Jamaica regularly, and maintained a presence in a room on her side of the duplex with her belongings. She stated that the said property belonged to the Crown and that they were all squatters with no rights whatsoever over the said property. She stated also that she had left the premises temporarily as she was experiencing harassment from the appellants and so she went to house sit for a friend, who was away, but who planned to return. She claimed that she remained in control and possession of ‘my property at 12a Tucker Avenue’ and that she had left some of her belongings there. She attached light bills relating to her side of the property and statements from her gardener and someone who had come to install curtain rods, to lend weight to the allegations of harassment by the appellants, and her continued presence on the property.
The respondent swore that an alarm system had been installed by Stealth Electronic Controls in 1998, which was located on her side of the property which was later taken over by Hawkeye Electronic Security Limited (Hawkeye) in 2003, and she had maintained the system from then to date. She indicated that she was appalled at the conduct of the appellants when they stated that, they had endeavoured to lock the gate when she temporarily left the premises, in an effort to keep her out, as she said they had no legal rights to the property as squatters, and was even more alarmed with regard to their entry of her side of the house, as she stated they had no claim whatsoever to the same. In any event, she maintained that their claim that she had been precluded from gaining access to the property was untrue, as she had been able to do so, notwithstanding their alleged actions. She deposed that she had paid taxes for the period from 1988 to 2009, whereas the appellants had not paid any water bills for over five...
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