Patrick Fletcher v Wendy Lee (Administratrix of the Estate of Thomas Chambers, deceased)

• Jurisdiction: Jamaica
• Judge: Straw, J.A.,Foster-Pusey, J.A.,D Fraser, J.A.
• Judgment Date: 04 April 2025
• Neutral Citation: JM 2025 CA 23
• Court: Court of Appeal (Jamaica)
• Year: 2025
• Docket Number: Suit No.: COA2024APP00120

Patrick Fletcher

and

Wendy Lee (Administratrix of the Estate of Thomas Chambers, deceased)

Straw, J.A.; Foster-Pusey, J.A.; Fraser, J.A.

Suit No.: COA2024APP00120

Court of Appeal

Appearances:

Maurice McCurdy for the applicant.

Ms Jacqueline Cummings instructed by Archer, Cummings & Co for the respondent.

INTRODUCTION

Straw, J.A.

1 The applicant, Patrick Fletcher, was the defendant in the court below in a claim by the respondent, Ms Wendy Lee (in her capacity as administratrix of the estate of her deceased father, Thomas Chambers). By this claim, Ms Lee sought damages for trespass to two parcels of land and an injunction to restrain the applicant from committing further acts of trespass.

2 The applicant asserted that he is entitled to possession of the two parcels of land and contended that in or around 2008, he had entered into an agreement for sale with Mr Chambers to purchase both parcels for $35,000,000.00. He stated that he paid a deposit of $1,500,000.00, along with other payments totalling $28,000,000.00 and that the balance was to be paid on completion of the sale, in exchange for the duplicate certificate of title, with his name or that of his nominee, endorsed thereon.

3 The applicant also brought an ancillary claim by which he sought specific performance of the agreement for sale, a declaration as to his right of possession, damages in lieu of specific performance, and, in the alternative, a declaration that the respondent's interest in the lands was extinguished by operation of the Limitation of Actions Act.

4 A trial was held on divers days between 20 June 2022 and 17 March 2023 before Nembhard, J. (‘the learned judge’), and, on 22 March 2024, the learned judge gave judgment in favour of the respondent and dismissed the applicant's ancillary claim. He sought permission from this court to file notice and grounds of appeal out of time, a stay of execution of the orders of the learned judge and to adduce fresh evidence. After hearing arguments, on 28 March 2024, the court made the following orders:

• “1. The relisted notice of application filed on 15 October 2024 for extension of time to file notice and grounds of appeal and for a stay of the execution of the judgment of Nembhard, J. delivered on 22 March 2024, is refused.

• 2. Cost of the application to the respondent to be agreed or taxed.”

5 We now provide our reasons for the above orders.

THE APPLICATION

6 By way of a relisted application filed on 15 October 2024 (the initial application having been filed on 21 May 2024), the applicant sought the following:

• “1. That the Applicant be permitted to file the Notice of Appeal and Grounds of Appeal out of time.

• 2. That the execution of the judgment of [the learned judge] in the court below and in the matter of Claim No. 2017 HCV 04013 be stayed until the determination of this appeal.

• 3. That [the Applicant] be permitted to adduce fresh evidence as evidence in the appeal, being the expert report of Deputy Superintentend [sic] of Police George Dixon relating to the execution of the agreement for sale dated the 16th day of May 2024. …”

7 By his affidavit in support, sworn 17 May 2024, the applicant explained that at the trial of the matter, Mrs Symone Mayhew KC represented him, and that, upon delivery of the judgment, the learned judge granted a stay of its execution for 42 days in light of his indication that he intended to appeal. Further, the learned judge indicated that she would circulate the judgment by 2 April 2024, in light of that intention. He was advised and believed that, in the circumstances, it was necessary to obtain the circulated judgment to properly instruct his new attorney, Mr Maurice McCurdy, retained to pursue the appeal, before lodging a notice of appeal. It was not until 7 May 2024 that he received the circulated judgment from Mrs Mayhew, who indicated that she had received it from the court on the same date. Mr McCurdy was then able to assess the prospects of success on appeal and advised the applicant that his case would have benefited from a handwriting expert relevant to the agreement for sale. The services of Mr George Dixon were engaged, and a preliminary report was prepared, which was exhibited to the applicant's affidavit. The applicant expressed that he wished to be heard on appeal, as his new attorney had raised several issues as to the reliability of the findings of fact and law of the learned judge.

8 The proposed grounds of appeal were as follows:

• “a) The Learned Trial Judge … erred in her interpretation of section 36 of the Stamp Duty Act in that:

  • ○ Section 36 of the Stamp Duty Act states that “NO INSTRUMENT, NOT DULY STAMPED ACCORDING TO LAW, SHALL BE ADMITTED IN EVIDENCE AS VALID OR EFFECTUAL IN ANY COURT OR PROCEEDINGS FOR THE ENFORCEMENT THEREOF.”

  • ○ The Learned Trial Judge erred in refusing the agreement for sale which was submitted by [the applicant] was submitted [sic] for two reasons, the 1st BEING AS EVIDENCE THAT HE IS A [SIC] APPELLANT [SIC] IS A PURCHASER IN POSSESSION AND THEREBY ENTITLED TO REMOVE THE TOP SOIL [sic]. This point disqualifies the prohibition of section 36 as the admissibility was in respect of evidence of an agreement proving on a balance of probabilities that he is a purchaser in possession and not necessarily for the enforcement thereof. The 2nd reason the agreement for sale was submitted was for the enforcement thereof. On this issue, the matter concerning the admissibility of the offending document and the section 36 point becomes applicable.In the matter of Vinayaka Management Limited vs. Genesis Distribution Network Limited case … their lordships did affirm that;

  • • An agreement for sale ought not to be admitted into evidence for the purpose of ENFORCEMENT THEREOF UNLESS IT HAS BEEN STAMPED.

  • • IT IS NOT UNUSUAL FOR THE COURT TO ADJOURN THE HEARING OF A MATTER TO ALLOW THE STAMPING OF AN AGREEMENT FOR SALE OR SUCH SIMILAR DIRECTION UNDER SECTION 43 OF THE STAMP DUTY ACT.

  • • IT IS NOT UNUSUAL FOR THE COURT TO ACCEPT AN UNDERTAKING FROM COUNSEL TO STAMP THE AGREEMENT FOR SALE AND THE MATTER TO PROCEED.

  • • CONSIDERATION

  • ○ The learned trial judge erred in law in the law [sic] and fact in the exclusion of the agreement for sale between Thomas Chambers and [the applicant] which does establish that [the applicant] was to be placed in possession immediately after execution, which if admitted, on a balance of probabilities, the Learned Trial Judge would be in no doubt finding as to fact that [the applicant] was indeed a purchaser in possession, which would have affected her judgment.

  • ○ The misdirection by the Learned Trial Judge was fatal to the dismissal of the Ancillary Claim.

  • ○ If this court were to accept that the Agreement for Sale ought not to be excluded by the Learned Trial Judge on the basis of establishing evidence of an agreement between the parties respecting the issue of [the applicant] being a purchaser in possession, it is unavoidable that it ought to conclude that the dismissal of the Ancillary Claim ought to be set aside.

  • ○ If it were accepted that [the applicant] is an [sic] purchaser in possession, he ought not to be regarded as a trespasser, and the complexion of the substantive claim would not have applied to him. The acceptance of [the applicant] as a purchaser in possession is established in the Agreement for Sale, which should not have been excluded for the purposes of reliance for any reason outside of the order sought for specific performance.

  • ○ If the point is to be accepted, then an order for recovery of possession would have been necessary to have the purchaser deliver up vacant possession, which was not prayed in the claim form. Further, the Learned Trial Judge in her misdirection, found that [the applicant] was a trespasser, which would not have been her finding as to fact if the Agreement for sale was admitted for evidence of the material facts and not just an order for specific performance.

• b) Section 4 of the Limitation of Actions Act creates an avenue for those let into lawful possession to inherit the right to dispossess the lawful owner of the said parcel on the last date when payment was received. Being that there has never been a claim against the purchaser to recover the premises, [the applicant] would have been in physical and intentional custody of the premises, and the Respondent's rights to the paper title would already have been extinguished. The Learned Trial Judge failed to take this into consideration.

• c) The Learned Trial Judge erred in law which was fatal to the trial when as Rule 29.1 of the Civil Procedure Rules of 2002 … gives her the jurisdiction to control the evidence to be given and she could have rightfully directed that the agreement for sale won't be considered on the point of part performance given that it is not stamped.

• d) The Learned Trial Judge erred when she found that [the applicant] did not have compelling evidence to suggest that he had physical custody and an intention to dispossess the Respondent.

• e) The Learned Trial Judge erred in fact in ruling that the receipt drawn does not support the assertions of [the applicant] in that there was a live and valid agreement for sale between himself and Thomas Chambers.

  • ○ The parole evidence rule would have allowed [the applicant], if the agreement for sale was admitted, to make his matter more intelligible being that the receipts do not contradict what was in writing between the parties.

  • ○ The dates of the receipts, contents of the Agreement for sale and sworn evidence by [the applicant] would make it irresistible to the Learned Trial Judge to form the opinion, on a balance of probabilities, that [the applicant] was a purchaser in possession.” (Italics and emphasis as in the original)

9 A second affidavit was filed by the applicant, on 24 March 2025, by which he exhibited the agreement for sale and other documents that...