Morgan (John) v Premium Finance Ltd

• Jurisdiction: Jamaica
• Judge: LANGRIN, J.A: , DOWNER. J.A. , HARRISON, J.A.
• Judgment Date: 16 May 2002
• Neutral Citation: JM 2002 CA 16
• Judgment citation (vLex): [2002] 5 JJC 1603
• Court: Court of Appeal (Jamaica)
• Date: 16 May 2002

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE DOWNER, J.A THE HON. MR. JUSTICE HARRISON, J.A THE HON. MR. JUSTICE LANGRIN, J.A

BETWEEN

JOHN MORGAN

DEFENDANT/APPELLANT

AND

PREMIUM FINANCE LTD.

PLAINTIFF/RESPONDENT

Nancy Anderson Crafton Miller & Co.

A.J. Dabdoub Clough, Long & Co.

SPECIFIC PERFORMANCE - Agreement for sale - Notice of appeal - Motion to strike out appeal - Whether appellant had locus standi at the time of filing the Notice and Grounds of Appeal

LANGRIN, J.A:

1 This is a motion to strike out the appeal of the defendant/appellant against the order of Ellis J, granting Specific Performance of an agreement.

2 On March 3, 2000 we struck out the defendant's appeal and promised to put our reasons in writing. We now give our reasons for doing so.

3 The facts upon which the question before us arises are shortly stated that the defendant/appellant and his common law wife are the shareholders of C.J.'s Rent-a-car Ltd., (hereinafter called "C.J.'s). The latter is indebted to the plaintiff company. The amount of that indebtedness remains a disputed fact. In consequence of the debt remaining unsatisfied, the plaintiff company obtained an order to wind-up C.J.'s. That order was made by the Supreme Court on the 16 ^th May, 1996 and upheld by the Court of Appeal on the 30 ^th October, 1996. The Trustee in Bankruptcy was then appointed provisional liquidator.

4 Subsequently, negotiations began between the plaintiff/company and the liquidator which resulted in two agreements dated:

• 1. March 1997 (Exhibit 13); and

• 2. August 1997 (Exhibit 2)

5 Exhibit 13 purported to transfer certain parcels of lands and a Mercedes Benz motor car to the plaintiff company, as contained in the schedule thereto. The assets contained in the schedule were subsequently replaced with four other properties. This agreement, though undated, was signed by the defendant and bears the seal of C.J.'s Limited: (Exhibit 13).

6 A new agreement was later concluded (Exhibit 2) which incorporated some terms of the first agreement (Exhibit 13). This new agreement was however, not signed by the defendant; in fact, the defendant denies any knowledge of this document.

7 The defendant maintains that he is not personally indebted to the plaintiff company and admits that C.J's is the entity that owes the money.

8 On the 7 ^th December, 1998 the defendant/appellant was provisionally declared a bankrupt by an order of the Supreme Court. A copy of the order was served on the appellant on 7 ^th January, 1999.

9 The plaintiff company therefore brought an action to obtain specific performance of the agreements for sale. However, this claim failed because it was not a party to the agreement. Therefore, the learned trial judge allowed an amendment to the statement of claim on the 17 ^th November, 1998. The effect of the amendment was to enable the plaintiff company to seek specific performance of both exhibits 13 and 2.

10 At the trial, the Trustee in Bankruptcy, said that when he embarked on the liquidation of C.J.'s, he discovered that the assets of the company were insufficient to satisfy the debt owing to the plaintiff company. The Trustee made arrangements to sell parcels of land which belonged to C.J.'s, but the defendant refused to sign the agreements for sale. It should be noted that the agreements for sale were drafted pursuant to Exhibit 2 which was not signed by the defendant.

11 On the 27 ^th day of May, 1999 the learned trial judge ordered that the plaintiff...