Minister of Housing v New Falmouth Resorts Ltd

• Jurisdiction: Jamaica
• Judge: Phillips JA,Brooks JA
• Judgment Date: 29 April 2016
• Neutral Citation: JM 2016 CA 38
• Docket Number: CIVIL APPEAL NO 23/2014
• Court: Court of Appeal (Jamaica)
• Date: 29 April 2016

Between:

The Minister of Housing

Appellant

and

New Falmouth Resorts Ltd

Respondent

[2016] JMCA Civ 20

Before:

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

The Hon Mr Justice F Williams JA (AG)

CIVIL APPEAL NO 23/2014

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT

Mrs Susan Reid-Jones and Miss Vanessa Blair instructed by the Director of State Proceedings for the appellant

Keith Bishop , Mrs Juliet Mair-Rose and Romaine Tulloch instructed by Riam Esor & Co for the respondent

Phillips JA

1 I have had the opportunity of reading the judgment of my learned brother F Williams JA (Ag). I have found the judgment to be very thorough and comprehensive. I agree with his reasoning and conclusion and there is nothing that I can usefully add.

Brooks JA

2 I too have read in draft the judgment of my brother F Williams JA (Ag) and agree with his reasoning and his conclusion. I have nothing to add.

3 This is an appeal by the Minister of Housing (the Minister) against the decision of Campbell J dated 12 February 2014, by which the learned judge dismissed the Minister's application for interim injunctive relief and granted the application of New Falmouth Resorts Limited (New Falmouth) to strike out the Minister's claim. The learned judge also ordered that the costs of the application should go to New Falmouth to be assessed on an indemnity basis and further ordered that the costs of the claim and the costs and damages which had been previously ordered by Donald McIntosh J in claim no HCV 01702 of 2007 be paid before any further steps be taken in the matter.

Background

4 The Minister is a corporation sole, with perpetual succession and the capacity to acquire, hold and dispose of land and other property of whatever kind, by virtue of section 3 of the Housing Act. New Falmouth is a limited liability company registered under the laws of Jamaica and the registered proprietor of all that parcel of land part of Orange Grove, in the parish of Trelawny, being part of the land comprised in the certificate of title registered at Volume 1008 Folio 636 of the Register Book of Titles. Mr James Chisholm is the sole shareholder, chairman and chief executive officer of New Falmouth.

5 Several acres of the land registered to New Falmouth (the subject lands) have been unlawfully occupied by numerous persons and have been the subject of two law suits. As such, it will be useful to outline the more-salient aspects of the legal history of the subject lands.

Claim no 1: HCV 01702 of 2007

Claim for recovery of possession

6 In 2007, New Falmouth brought claim no HCV 01702 of 2007, against 99 defendants (alleged to be squatters) for recovery of possession of the subject lands. On 6 April 2010, after a lengthy trial, Donald McIntosh J delivered the judgment of the court, ordering, inter alia , recovery of possession and the payment of damages in the sum of $50,000.00 by each defendant to New Falmouth. New Falmouth, as part of its efforts to enforce that judgment to recover possession, sought to have the Jamaica Public Service Company Limited (JPS) discontinue power supply to the unlawful occupants of the subject lands.

Applications for stay of execution of McIntosh J's judgment and for injunctive relief

7 On 6 and 8 March 2012, notices of application for (i) a stay of execution of McIntosh J's judgment and (ii) for injunctive relief (to prevent interference with the 99 defendants' possession of the subject lands), respectively, were filed under claim no HCV 01702 of 2007. Both applications, although brought in the suit between New Falmouth and the 99 defendants, were in effect (for reasons that will shortly be discussed) made by the Minister. The main ground on which the applications were made was that on 29 February 2012, the Minister had declared the lands comprised in certificates of title registered at Volume 1008, Folio 636 and Volume 1389, Folio 427 of the Register Book of Titles to be improvement areas in accordance with section 6 of the Housing Act (the Act) and so he was at liberty to compulsorily acquire the subject lands. The applications were supported by affidavits filed on 6 and 8 March 2012, deposed to by Joseph Ameen Shoucair, (Mr Shoucair) attorney-at-law, managing director of the Housing Agency of Jamaica (the HAJ) and ‘a duly authorized agent of the Honourable Minister Housing of Jamaica [sic]’. (See, for example, paragraph 1 of his affidavit filed on 8 March 2012 in HCV 01702 of 2007.)

8 On 8 March 2012, G Brown J, heard the ex parte application for the stay of execution, granted an interim stay for a period of 30 days and set the application to be heard inter partes on 20 April 2012. On 30 March 2012, McDonald-Bishop J (as she then was) heard the application for injunctive relief and ordered that New Falmouth, its servants, agents or anyone else acting on its behalf or on its instructions (including the public-utility companies) be restrained from interfering with the 99 defendants' possession and quiet enjoyment of the subject lands until the determination of the inter partes application for a stay.

9 On 20 April 2012, when the application for the stay of execution went before McIntosh J, after hearing submissions from counsel for the parties, he adjourned the matter, requesting that either the Minister or the deponent (Mr Shoucair) should appear. On 4 May 2012, McIntosh J delivered his decision, dismissing the application. Neither the Minister nor the deponent had appeared in court. However, the learned judge recognised the presence of officers of the HAJ (Mrs Simone Morris-Rattray and Mrs Janice Buchanan-McLean) and handed them a copy of the orders which he had made. There was no appeal from the learned judge's decision.

10 The reasons for the learned judge's decision were contained in the formal order filed on 18 May 2012, which stated, inter alia , the following:

• ‘3. It is clear from the Application to Stay Execution that this is intended to be an Indefinite One, as there is no indication of a date or period for allowing the Claimants to have the fruits of the judgment/award handed down in their favour.

• 4. The presence of legal officers from the Housing Agency may be intended to suggest to the Court that the Government is taking actual and immediate steps to assist the Parties in a mutually beneficial settlement.

• 5. Given the History of this case; the length of the trial and the efforts made by the Court to assist the Defendants, who seem to have been misled by politicians into squatting on private property, notwithstanding their unlawful act this Court empathises with the gullible Defendants.

• 6. The Application is iniquitous. It may be that the law is not a shackle to the Law Makers. That does not apply to the Court which must dispense justice according to the Law.

• 7. It is the Court's view that the Application is devoid of sincerity, it is an attempt to pervert the course of Justice and an Abuse of the process of the Court.

• 8. The application is refused with costs to the Claimants [sic] to be taxed if not agreed.

• 9. Leave to appeal granted to the Defendants on the condition that the Defendants pay all costs of the Claim appealed and present the application within fourteen (14) days hereof.’

Minister lodges caveat and gazettes order to compulsorily acquire

11 On 1 May 2012 the Minister lodged a caveat against the certificate of title for lands registered to New Falmouth, including the subject lands, and gazetted notice of the subject lands being declared to be an improvement area pursuant to section 6 of the Housing Act, published in the Jamaica Gazette dated 15 May 2012 to facilitate the compulsorily acquisition of the subject lands.

Claim no 2: HCV 02767 of 2012

Applications before Campbell J

12 On 18 May 2012, the Minister filed against New Falmouth a fixed-date claim form with claim no HCV 02767 of 2012, seeking several declarations, including one that he was entitled to compulsorily acquire the subject lands. He also filed a notice of application for injunctive relief against New Falmouth in the same claim. The fixed-date claim form was supported by the affidavit of Mrs Simone Morris-Rattray, senior manager of the legal services department and company secretary of the HAJ, sworn to on 18 May 2012. In response to the applications filed by the Minister, New Falmouth, on 22 October 2012, filed a notice of application for court orders, seeking as a matter of urgency, to strike out the Minister's application on the ground that, inter alia , the said application was an abuse of process and was actually seeking in substance the same relief sought under claim no HCV 01702 of 2007, which had already been refused.

13 On 21 May 2012, V Harris J (then acting) after hearing the submissions of counsel, ordered that, by consent, New Falmouth and its agents be restrained from dealing with the subject lands and from interfering with the occupants or any of the structures which were then on the land, without the consent of the Minister or the court, until 7 June 2012, to which date the matter was adjourned to be heard.

14 The hearing, which began before Campbell J on 21 May 2013, continued over several months, at the end of which Campbell J ruled that the application before the court was an abuse of process; dismissed the Minister's claim and made orders as summarized in paragraph [3] herein.

The appeal

15 It is from the above decision of Campbell J that this appeal emanates. The grounds of appeal, as set out in the notice and grounds of appeal filed on 27 March 2014, are as follows:

• ‘i. The learned judge misdirected himself in law and fact when he found that the stated or alleged purpose of the Claimant/Appellant is not for general interest of the community but merely for private individuals voluntarily associated together for their own benefit.

• ii...