Sagicor Bank Jamaica Ltd v Harley Corporation Guarantee Trust Company Ltd
| Jurisdiction | Jamaica |
| Judge | McDonald-Bishop JA,Foster-Pusey JA,P Williams JA |
| Judgment Date | 23 July 2021 |
| Neutral Citation | [2021] JMCA Civ 36 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO COA2019CV00066 |
| Year | 2021 |
| Court | Court of Appeal (Jamaica) |
IN THE COURT OF APPEAL
THE HON Mrs Justice McDonald-Bishop JA
THE HON Miss Justice P Williams JA
THE HON Mrs Justice Foster-Pusey JA
SUPREME COURT CIVIL APPEAL NO COA2019CV00066
Christopher Kelman and Litrow Hickson instructed by Myers, Fletcher & Gordon for the appellant
Lijyasu M Kandekore for the respondent
I have had the privilege of reading, in draft, the reasons for judgment of my sister, Foster-Pusey JA. It is for the reasons she gave that I agreed with the decision and orders of the court made on 20 May 2020.
I too have read the draft judgment of my sister Foster-Pusey JA and I agree with the reasons which she gave for the decision we arrived at on 20 May 2020.
Sagicor Bank Jamaica Limited (‘the bank’) is a banking institution which is the successor in title to Citizens Bank Limited. By successive name changes, Citizens Bank Limited's name was changed to Union Bank of Jamaica Limited, then to Royal Bank of Trinidad and Tobago Bank Jamaica Limited (RBTT), then to RBC Royal Bank (Jamaica) Limited. Sagicor Group Jamaica acquired RBC Royal Bank (Jamaica) Limited in June 2014, and eventually merged it with its existing banking operations, Sagicor Bank Jamaica Limited. In light of the successive name changes involved, reference to “the bank” will be taken to include reference to its predecessor institutions. From time to time, if it will assist in better understanding of the facts, reference may be made to a predecessor institution.
Harley Corporation Guarantee Trust Company Limited (‘the respondent’) is a company incorporated in Jamaica and has its registered office at 1-C Braemar Avenue, Unit A, Kingston 10 in the parish of Saint Andrew.
On 24 June 2019, Wolfe-Reece J (‘the judge’), refused to grant the Bank's application for summary judgment in a claim for breach of contract, brought against it by the respondent, and also refused to strike out the respondent's claim.
By agreement for sale dated 25 February 1995, the bank's predecessor institution, Citizens Bank Limited, in its capacity as mortgagee, sold to the respondent property registered at Volume 1022 Folio 570 in the Register book of Titles, (‘the property’). A copy of the registered title was not included in the record of appeal, however, in its pleadings in the court below, the respondent stated that it was endorsed on the title as sole registered proprietor, on 6 March 1995.
The property was not vacant. Mr Etal Walters was occupying it. In an effort to obtain possession, the respondent, on 30 April 1995 served a notice to quit on Mr Walters, requesting him to vacate the property, however he refused to do so.
Mr Walters was not the previous registered owner of the property at the time when it had been sold by the bank by virtue of its powers as mortgagee. He and his wife had entered into an agreement with the previous registered owner, Mr Rudolph Daley, to purchase the property. Mr Daley, in Suit No CL D 162 of 1995 on 13 September 1995, sued the bank for damages for negligence and/or breach of contract and/or breach of fiduciary duty and/or breach of statutory duty. Mr Daley claimed that the bank sold his property at a gross under-value at a time when it knew, or ought to have known, that he had already sold the property, and at a time when he was servicing his mortgage. He sought, among other things, a declaration that he was entitled to an indemnity and/or contribution from the bank with respect to any or any alleged claim by Mr and Mrs Walters concerning their purchase of the property.
On 22 February 1996, Mr Walters, in Suit No CL W 55 of 1996 sued Mr Daley, the bank and the respondent seeking a declaration that he was the beneficial owner of the property.
The respondent, on 15 May 1996, filed a writ of summons against Mr Walters, and later filed its statement of case on 23 December 1996 in Suit No CL H 094 of 1996, seeking possession of the property.
On 17 October 1996, Mr Walters, in Suit No CL W 369 of 1997 brought a claim in terms similar to Suit No CL W 55 of 1996, against Mr Daley and the bank, seeking a declaration that he was the beneficial owner of the property.
In March 1998, the respondent, in its reply to Mr Walters' defence in Suit No CL H 094 of 1996, asserted that when the respondent's agent enquired of the bank whether the premises would be sold with vacant possession, the bank's agent stated that the property was being sold subject to tenancies. The respondent also pleaded that the bank put it in possession of the property.
The suits were consolidated and were heard by Sykes J (as he then was). On 30 January 2007, Sykes J made several orders, which included setting aside the bank's sale of the property to the respondent, and ordering the registrar of titles to remove the respondent's name from the title as registered proprietor.
Sykes J declared Mr Walters as the beneficial owner of the property, on condition that he paid to the estate of Mr Daley the balance of $35,000.00 which was due and owing. The estate of Mr Daley was indemnified in respect of any damage or loss suffered by Mr Walters. Additionally, the claim brought by the respondent for possession of property and mesne profit was dismissed.
The respondent appealed the decision, and the bank, Mr Daley's estate and Mr Walters were among the respondents to that appeal. The bank also appealed the decision, and Mr Walters, Mr Daley's estate and the respondent were also respondents to that appeal. The appeals were heard on 9, 10, 11 June and 25 September 2009. On 20 December 2010, this court, in allowing the appeal, set aside Sykes J's orders, declared that the respondent was the legal and beneficial owner of the property, and ruled that Mr Walters did not have any right to the property. The matter was remitted to the Supreme Court for assessment of the mesne profits that Mr Walters was to pay to the respondent, and costs of the appeal and in the court below were awarded to the respondent. Mr Daley's claim against the bank, was remitted to the Supreme Court for assessment of damages (see amended certificate of result of appeal dated 23 March 2011 and the case of Harley Corporation Investment Guarantee Company Limited v Estate Rudolph Daley and Others; RBTT Bank Jamaica Limited v Estate Rudolph Daley and Others [2010] JMCA Civ 46).
On 27 May 2014, the Privy Council refused Mr Walters' application for permission to appeal, on the basis that his application did not raise an arguable point of law.
By a claim form and particulars of claim filed on 16 May 2018, the respondent sued the bank for damages for breach of contract in respect of the 25 February 1995 agreement for sale of the property. The respondent pleaded that it had complied with the terms of the agreement for sale, as it paid all the sums that were due and owing, however, the bank failed to comply with the terms of the agreement for sale which required it to give vacant possession of the property. The respondent pleaded that this resulted in it having to engage in extensive litigation in the Supreme Court, the Court of Appeal, and the Privy Council in order to acquire vacant possession of the property, which eventually occurred by way of a writ of possession dated 10 February 2017 which was issued by the Supreme Court.
In response, the bank filed a defence on 28 August 2018 in which it asserted that the claim was brought outside of the relevant limitation period, and was, therefore, statute barred, as the cause of action had arisen more than six years prior to the commencement of the claim. It also pleaded, in the alternative, that the statements of case did not disclose any reasonable ground for bringing the claim against the bank, and constituted an abuse of the process of the court. The bank stated that the agreement for sale did not include a clause, either express or implied, providing that it would give vacant possession to the respondent, and the respondent was aware that it was selling the property in its capacity as mortgagee under the power of sale contained in a mortgage. Therefore, the loss, damage and expense claimed by the respondent was not caused by any breach by the bank of the agreement between the parties.
On 28 August 2018, the bank filed a notice of application for court orders seeking an order for summary judgment or, in the alternative, an order that the respondent's claim be struck out, with costs of the claim and the application. The application was supported by an affidavit of Andrew Foreman, attorney-at-law and the bank's manager of Legal Services, Group Legal, Trust & Corporate Services.
The grounds on which the bank sought those orders were that the respondent had no real prospect of succeeding in the claim, as it had brought the action outside of the relevant limitation period, and the respondent's statement of case did not disclose any reasonable grounds for bringing the claim. The claim therefore constituted an abuse of the court's process.
On 3 May 2019, counsel for the respondent, Mr Lijyasu M Kandekore, in responding to the affidavit of Andrew Foreman, swore to an affidavit which, before us, the parties could not agree on whether it had been admitted into evidence by the judge.
Both counsel indicated that the judge gave oral reasons, but they were unable to agree on them.
The notice of application was heard on 10 May 2019. The judge reserved her decision until 24 June 2019 when she ordered that:
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“1. [The bank's] Notice of Application for Court Orders, filed on August 18, 2018, is refused;
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2. [The bank] is granted leave to appeal; and
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3. Costs of the application to [the respondent], to be taxed...
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