Palmer (Garnett) v Prince Golding and Etta Golding (Deceased after litigation commenced)

• Jurisdiction: Jamaica
• Judge: DOWNER, J.A. , ARRISON, J.A.: , LANGRIN, J.A.:
• Judgment Date: 20 December 2000
• Neutral Citation: JM 2000 CA 54
• Judgment citation (vLex): [2000] 12 JJC 2007
• Court: Court of Appeal (Jamaica)
• Date: 20 December 2000

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:

GARNETT PALMER

APPELLANT

AND

PRINCE GOLDING

1 ^st DEFENDANT/RESPONDENT

AND

ETTA GOLDING (Deceased after litigation commenced)

2 ^nd DEFENDANT/RESPONDENT

Raphael Codlin instructed by Raphael Codlin & Co. for the appellant

Donald Scharschmidt, Q.C. and Leigbton Miller instructed by Alton Morgan and Co. for the respondent

CONTRACT OF SALE - Specific performance - Whether notice to complete had the effect of extinguishing the contract

DOWNER, J.A.

1 The principal claim of the appellant Garnett Palmer against the developer Prince Golding is that Golding ought to be obliged to specifically perform the contract of sale allegedly made in December 1984, to transfer to him Lots 19 and 20 of Long's Wharf in the parish of Clarendon. Clarke J., found that the contract was signed by both parties in March 1985. Since the contents of both contracts are identical and undated, in the light of the learned judge's finding, the March date will be used in this judgment. In the Court below, Palmer failed, as the decision went in favour of the developer Golding. So the appellant Palmer, has appealed to this Court with a prayer to reverse the order of the Supreme Court.

2 Because of the complexity of the issues raised, and the manner in which it was proposed that the issue should be determined, an appropriate starting point is the order of Record J. which is cited in full below. It reads:

"BEFORE THE HONOURABLE MR. JUSTICE RECKORD THE 15 ^th DAY OFOCTOBER 1992

UPON the Notice of Motion dated the 23 ^rd day of September, 1992 corning on for hearing this day and upon hearing Mr. Alton E. Morgan, Attorney-at-Law, instructed by Messrs. Alton E Morgan & Co., Attorneys-at-law, for the Defendants and Mr. Raphael Codlin & Company Attorneys-at-Law for the Plaintiff

IT IS HEREBY ORDERED BY CONSENT that:-

• 1: The Order made in this action by the Honourable Mr. Justice Patterson on the 12 ^th of February 1992 that;

  • 1. The parties hereby agree to a trial by motion for a declaration on the issue of whether or not the Notice to Complete dated the 12 ^th of November, 1990 served on the Plaintiff had the effect of extinguishing the contracts which are the subject matter of this action.

  • 2. The Plaintiff be granted leave to file and deliver Statement of Claim within 7 days of the date of this Order

  • 3. The Defendants Attorneys are hereby released from their undertaking given on July 22, 1991;

  • 4 Injunction granted for preservation of status quo pending hearing of motion

  • 5. The Plaintiff undertakes to pay any damage suffered by the Defendants in consequence of injunctions granted or undertakings given by the Defendants in this suit.

  • 6. Costs to be costs in the cause.

  Be and is hereby vacated.

• 2. The matter to proceed to trial on the issues

• 3 Costs to be costs in the cause

BY THE COURT".

3 But this is only part of the story, after correspondence between the Attorneys-at-law on both sides caveats were issued at the instance of the appellant in respect of Lots 19 and 20, and another consent order was made before Theobalds J. It reads:

"IN CHAMBERS

THE 11 ^th DAY OF FEBRUARY 1993 BEFORE THE HONOURABLE MR. JUSTICE THEOBALDS

UPON the Summons dated the 2 ^nd day of February 1993 corning on for hearing this day and UPON hearing Mr. Raphael Codlin instructed by Raphael Codlin & Co., Attorneys-at-law for the Plaintiff and Mr. Alton E. Morgan instructed by Alton E. Morgan & Co., Attorneys at law for the Defendants IT IS HEREBY ORDERED BY CONSENT that:

• 1. Injunction granted to the Plaintiff restraining the Registrar of Titles from entering any dealings on duplicate Certificates of Title registered at Volume 1197 Folio 589 and Volume 1197 Folio 590 of the Register Book of Titles. Injunction to stand until the 31 ^st July 1993.

• 2. The Plaintiff, through his Attorney, agrees to abide any order which the Court may make in respect to damages which might be awarded to the Defendants.

• 3. The Defendants at liberty to apply to the Court by Motion to determine any issues that might arise on the pleadings.

• 4. Liberty to either party to apply

• 5. Costs to be the costs in the cause.

BY THE COURT".

4 These orders explain in part why frequent references to interlocutory proceedings are necessary and the number of affidavits which were in evidence before the learned trial judge. Further the respondent Golding gave no evidence at the trial, so his story was told by the affidavits admitted into evidence and documents. This is regrettable, because in some instances there was correspondence between Palmer and Golding and Palmer gave evidence of instances of conversations between them which was not refuted. One instance concerned the issue of actual possession and occupancy.

5 Was there a sub-division contract of sate in Lots 19 and 20 formed in March 1985?

6 It must be emphasised that the contract in issue is a sub-division contract, consequently, there are certain statutory terms and common law requirements of which this Court must take judicial notice. (See Sec. 21 of the Interpretation Act). There is the impact of the Local Improvements Act (The "Act"), see Section 5 sub section (4)and(5) and 12(d); the doctrine of past consideration, as well as the law of deposit on land transactions as expounded in Workers Trust and Merchant Bank Ltd. v DoJap Investments Ltd. (1993) 30 JLR 56 at 58–61.

7 Ground 2 of The Notice and Grounds of Appeal reads:

"(2) That the learned Judge misdirected himself in holding that there is significance in the amendment by the Parish Council of the Subdivision Plan when His Lordship himself has conceded that Counsel's submission for the Plaintiff was correct when he states in his Judgment:

Mr. Codlin has submitted that so long as the contract subsists with the plaintiff not in breach, Mr. Golding is obliged to carry out infrastructural work in respect of all four lots before completion. In my opinion Mr. Codlin is correct.

The learned Judge completely ignored and made no mention of the Local Improvements Act. Section 9 which was submitted to him both in oral and written address which empowers the relevant Minister to approve Subdivision Plan sanctioned by the Parish Council and further provides in Section 9 subsection 8 that:

'The decision of the Minister under this section shall be final and not subject to any further right of appeal.'

The provision of the Act therefore, provides clearly that once the Minister has approved the Subdivision Plan sanctioned by the Parish Council, that is the end of the matter, and the Parish Council has no authority to amend a Plan after it has been approved by the Minister".

8 The omission to take into account the provisions of the Act is a matter of public interest as the provisions of the Act are meant to protect the environment and provide for the orderly development of land. Further the Act ensures that purchasers obtain basic amenities which run with the land. Having regard to these features it ought to have been contended that the contract of 1987 on which the respondent relied was invalid. That contract failed to incorporate the mandatory terms of the 1985 contract and at the time of its formation it was an illegal contract. A contract formed two years after approval was given for the sub-division was illegal because there was an implied prohibition against a formation of such a contract if the infrastructure was not completed. In this case there has been no attempt to commence the infrastructure. The 1987 contract could not replace the March 1985 contract if that contract still subsisted. The other point that should be noted at the outset was that the conditions in the contract were imposed pursuant to the Act. That is the basis for raising the illegality of the 1987 contract. I must say that I have doubts about the finding of the learned judge about the March 1985 date of the contract. Since the learned judge relied on the credibility of Mr Crafton Miller I cannot disturb that finding. It must be pointed out however, that although the learned judge accepted that the affidavits signed by Mr Miller were prepared by Mr Alton Morgan another attorney-at-law, it is not true that Mr Miller had no record to check the facts as the learned judge found. Mr Miller had an office copy of the March contract as the evidence will show. What is noteworthy is that the respondent Golding in an affidavit at page 99 of the record speaks of the December 1984 Agreement.

9 The relevant averment in the Statement of Claim reads as follows:

"6. At the time when I signed the Agreement, CONDITION 13 was as it appears on the application for the subdivision granted by the Clarendon Parish Council, that is to say, it provided that no Title shall be issued for the subdivision until the approval of the Parish Council was granted."

10 There was no proof that there was an amendment to condition 13. Even if there was, no amendment would be valid after the Minister had given his approval. Then the Statement continues thus:

• "7. The Defendants in spite of repeated requests by the Plaintiff failed to provide the infrastructure as provided for in the contract and also failed to complete the contract in respect of lots 19 and 20 according to its terms in that the contract provides that the Defendants should present the duplicate Certificates of Title for the two lots with the Plaintiff's name endorsed thereon, and the Defendants have neither tendered to the Plaintiff nor any representative of the Plaintiff any instrument of Transfer to be signed by the Plaintiff so as to vest the said properties in the Plaintiff.

• 8. That on the day of 19 the Plaintiff tendered to the Defendants Attorneys-at-law...