Sandra Bailey v Donovan Lewis
| Jurisdiction | Jamaica |
| Judge | Phillips JA,P Williams JA,Straw JA (AG) |
| Judgment Date | 10 May 2019 |
| Neutral Citation | JM 2019 CA 55 |
| Date | 10 May 2019 |
| Court | Court of Appeal (Jamaica) |
[2019] JMCA Civ 14
SUPREME COURT CIVIL APPEAL NO 7/2010
The Hon Miss Justice Phillips JA
The Hon Miss Justice P Williams JA
The Hon Miss Justice Straw JA (AG)
Gordon Robinson instructed by Winsome Marsh for the appellants
Miss Michelle Smith instructed by Lewis, Smith, Williams & Company for the respondent
Civil practice and procedure - Pleadings — Striking out of claim — Whether judge erred in striking out claim on a preliminary issue.
This appeal concerns the right to possession of a gazebo and other associated facilities existing adjacent to a unit in a residential scheme. Mrs Sandra Bailey and Mr Basil Bailey (the appellants), sought to challenge the decision of Sinclair-Haynes J (as she then was), delivered on 17 December 2009. In that decision, the learned judge refused to grant a declaration sought by the appellants that they were entitled to the said gazebo and other alleged facilities by way of adverse possession, and granted possession of the disputed area to Mr Donovan Lewis (the respondent). This challenge was brought on grounds that the learned judge erred when she struck out the entire claim based on a preliminary issue, and erred in her rejection of the appellants' claim for possessory title.
The appellants entered into an agreement for sale to purchase Lot 14, Kingswood, Stony Hill in the parish of Saint Andrew, comprised in the certificate of title registered at Volume 1187 Folio 78 of the Register Book of Titles (Lot 14), from Monarch Investments Company Limited (Monarch) on 20 July 2005. They were duly registered on the said certificate of title for the property on 27 April 2006.
The 1 st appellant (Mrs Sandra Bailey), in an affidavit filed 15 July 2008, deponed that when considering the purchase of Lot 14, a gazebo was attached to the building. She therefore considered the gazebo to be a part of Lot 14, and bought Lot 14 with that belief. The appellants, she deponed, were placed in possession of Lot 14 on 1 September 2005, and since then, have remained in continuous and open possession of the said property.
In June 2008, the appellants commenced construction to extend and reinforce the gazebo. The respondent, a developer of the said property, raised an objection indicating that the gazebo was on an area of land forming part of the common area of the scheme, and not on the appellants' property. Mrs Bailey deponed that that was the first time a claim was being made to the land on which the gazebo had been built. The respondent also sent certain items of correspondence to the appellants, objecting to any extension of construction on the gazebo, ending in a letter dated 9 July 2008, from his attorneys-at-law to that of the appellants, indicating that if the gazebo, “the offending structure”, was not removed within seven days, the respondent would have it forcibly removed.
On 15 July 2008, the appellants filed a claim form against the respondent and Mr Lloyd Wilson (another developer of the said property). They sought a declaration that they were entitled by way of adverse possession to ownership in fee simple of the area of 35.080 square meters of land described as Lot B, being part of the certificate of title held jointly by the respondent and Mr Wilson, registered at Volume 1187 Folio 830 (the property). This area of land is specifically shown on survey diagram bearing survey department examination number 319247, dated 27 June 2005, prepared by Horace A Manderson, Commissioned Land Surveyor. They also sought, by way of consequential relief, an order that the Registrar of Titles be directed to rectify the certificates of title registered at Volume 1187 Folio 830 and Volume 1187 Folio 78 of the Register Book of Titles to reflect the said ownership.
On 15 July 2008, the appellants also filed an application for an interim injunction restraining the respondent and Mr Wilson from entering or interfering, in any way, with their enjoyment of the said area of 35.080 square metres adjacent to their land, which was on the respondent's land. The grounds of the application were that the appellants were in possession of the land, and had filed a claim for a declaration that they were the owners of the same by way of adverse possession; that they had good prospects of succeeding on the claim; and that the respondent had threatened to take immediate steps to interfere with the appellants' possession of the property. The application was supported by the affidavits of Mrs Sandra Bailey and Mr James Smith, managing director of Monarch, sworn to on 15 July 2008, and that of Mr Rudolph Smellie, attorney-at-law for the appellants, who attached the Certificate of Title for the said property.
Mr James Smith stated in his affidavit that as at 25 October 1993, the said property, bearing civic address 5 Ordon Close, Kingswood, Stony Hill in the parish of Saint Andrew, was registered in Monarch's name. The property had been purchased from Mr Loy Anthony D'Oyen. He stated that at the time of the purchase, the property consisted of a “single floor town house and an extension to the back thereof in the form of a gazebo or porch”. He said that at least from October 1993, Monarch occupied the property inclusive of the gazebo and the land, and had remained in continuous, open, quiet, and undisturbed possession of the same until 31 August 2005. Mr Smith stated that Monarch entered into an agreement for sale with the appellants dated 25 June 2005, and pursuant to that agreement, the company gave up possession of the property to the appellants as at that date, viz, 31 August 2005.
On 15 July 2008, Brooks J (as he then was) restrained the respondent and Mr Wilson from interfering in any way with the property until 29 July 2008, when the application was fixed to be considered.
The respondent, in an affidavit filed 25 July 2008, deponed, that at all material times, he was the owner and developer of a subdivision at Ordon Close, Kingswood, Stony Hill in the parish of Saint Andrew, which was completed about 20 years ago. He stated that Lot 14 on the subdivision was 5 Ordon Close which he had designed and constructed. He stated that the boundaries of each unit were “clearly defined and delineated and the areas common to all unit owners [were] properly earmarked”.
He indicated that a previous owner of Lot 14 had utilised the services of famed interior decorator, Mrs Joyce Buchanan, who in the process of remodelling the unit, added a wooden porch above the steps at the rear of the building. That addition encroached on his property which was earmarked for the common area, and did not form a part of the certificate of title for Lot 14, but was on property in his name. He informed the owner of this, and requested the removal of the wooden porch. He stated that the owner and Mrs Buchanan met with him and requested his permission for the wooden porch to remain as it was not a permanent structure, and that it would be removed at any time at his demand. He stated that he therefore allowed the wooden porch “to remain at [his] licence”. He maintained that all subsequent owners were informed that the wooden porch did not form a part of the property and that it was only allowed to remain if it would be removed at his (the respondent's) request.
The respondent stated further that at the time Monarch was purchasing Lot 14, Mr Smith had made a request to him to transfer the area occupied by the porch. He declined this request and indicated to Mr Smith that the porch could only remain as long as Mr Smith understood that it was not a part of the property. Mr Smith, the respondent deponed, accepted that, and also requested that the porch not be removed.
The respondent stated that, subsequently, when Mr Smith had entered into negotiations for the sale of the property, he (Mr Smith) told the respondent that the prospective purchasers were interested in acquiring the area occupied by the porch. Mr Smith again requested whether he, the respondent, was interested in transferring that part of the land on which the gazebo was situate. The respondent said that he was not interested in doing so.
Subsequent to that request, the respondent stated that he had received a request from Mr Mark Golding, Monarch's attorney-at-law of the firm of Messrs Hart Muirhead Fatta, requesting that he transfer the said area to the purchasers of the property. He indicated that he declined yet again, and informed Mr Golding that the piece of land formed a part of the common area, and the gazebo had only been allowed to remain on the lot, on the understanding that the structure was not permanent, and that the owners were aware that the use of the porch was “only based on [his] expressed permission”. He said that Mr Golding expressly stated that he accepted that the land occupied by the porch was not being transferred to the purchasers, which he subsequently confirmed in writing to the respondent's attorneys.
The respondent stated further that on or about 16 June 2008, he noticed that the occupants of the property had deposited building materials nearby, and so he inquired about the purpose of the building materials and was informed that the material was for building a structure to include the area of the porch. He said that he had informed the appellants that they could not do so as the land did not belong to them. He stated further that they had acknowledged that, but claimed that Mr Ronald Thwaites, their attorney-at-law, had indicated that he, the respondent had agreed to transfer to them the area on which the gazebo was situate. The respondent said that he informed them that that information was incorrect, as he had no intention of transferring that area to them, and that they should desist from any construction on it and, in fact, they...
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