Stephen Franklin v David Cowan and Monica Cowan

• Jurisdiction: Jamaica
• Judge: ANDERSON, J.
• Judgment Date: 26 January 2005
• Judgment citation (vLex): [2005] 1 JJC 2601
• Date: 26 January 2005
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

BETWEEN

STEPHEN FRANKLIN

PLAINTIFF

AND

DAVID COWAN

1 ^ST DEFENDANT

AND

MONICA COWAN

2 ^ND DEFENDANT

CIVIL PROCEDURE - Summary judgment

ANDERSON, J

1 The application being considered at this time arises from the filing of a writ in the Supreme Court by the claimant, Mr. Stephen Franklin, on February 5, 2002, in which he sought specific performance of an agreement for the sale of land, as well as an order that the defendants reimburse him in respect of monies paid by him to the National Water Commission for water rates for which the defendants were purportedly liable. The defence having been filed in June 2002, the matter came up for case management on February 18, 2004 when it was adjourned part-heard to continue on March 17, 2004. Thereafter, it was further adjourned and continued on September 30, 2004 and January 12 and 26 2005, on which latter date, a decision was handed down in respect of the application for summary judgment. At the time I handed down my decision, I promised to set forth my reasons in writing and this written judgment is in fulfillment of that promise.

2 A brief word on the dramatis personae will set the stage for these proceedings. Mr. Franklin, the plaintiff is from all appearances a member of that enterprising group of Jamaicans who left Jamaica by thousands in the years preceding Independence, to seek a better life for themselves and their families in the "Mother Country", England. Their hearts are however forever tethered to the Rock by invisible strings which cannot be broken, and so many of them seek to find that small piece of Paradise which they can call their own, in full expectation that they will someday retire there, perhaps to live out their natural lives there. The Cowans, on the other hand were a husband and wife team, the husband involved in the construction and development industry, and some interest in real estate. It was no doubt fate which brought them together and there commenced a relationship which has now to be untangled in the context of proceedings in the Supreme Court.

3 By a Notice of Application for Court Orders dated December 31, 2003 and filed in the Supreme Court on January 2, 2004, the Claimant/Applicant, Mr. Stephen Franklin sought from the Court the following Orders:

• 1. Judgment be entered for the Plaintiff against the Defendants in terms of the Statement of Claim filed herein pursuant to the provisions of Section 15.2 (b) of the Judicature (Rules of Court) Act, [The Civil Procedure Rules 2002]; alternatively,

• 2. That the Defendants defence be struck out on the grounds that the defence filed herein disclosed no reasonable ground for defending the claim and/or is frivolous vexatious and/or oppressive and/or otherwise amounts to an abuse of the process of the Court pursuant to the provisions of Section 26.3 (b) and (c) of the Judicature (Rules of Court) Act [The Civil Procedure Rules 2002].

4 In the Statement of Claim filed on the same day as the writ herein, the Claimant, (then "Plaintiff') claimed to have agreed to purchase a lot (lot # 6) on an approved sub-division plan, from the defendants for the price of Two Million Eight Hundred Thousand Dollars ($2.8 million). The Claimant now claims that he has carried out his side of the bargain by paying the said sum, but that in breach of the March 2, 1995 Sale Agreement, the Defendants have failed to effect completion of the transaction: The Plaintiff asserts that he was in fact put in possession of the said land and by a letter dated 29 ^th May 2000, the Plaintiff gave to the Defendants a notice making time of the essence to complete. According to the Plaintiff, the Defendants "have failed and/or refused to complete the said agreement."

5 The Plaintiff also claims that the Defendants should also re-imburse him for the sum of $9,292.00 paid to the National Water Commission (NWC), being sums outstanding to that agency in October 1997, for water supplied to the premises subject of the agreement, and which the Plaintiff had had to pay when the water supply was disconnected by the NWC for the outstanding arrears.

6 The section of the CPR under which the claimant seeks orders are sections 15.2 (b) and sections 26.3 (b) and (c).

7 These are set out hereunder -

Section 15.2 The Court may give summary judgment on the claim or on a particular issue it if considers that: -

• (a)

• (b) the defendant has no real prospect of successfully defending the claim or issue.

Section 26.3 (1) In addition to any other powers under these Rules, the Court may strike out a statement of case or part of a statement of case if it appears to the Court

• (a):-

• (b) that the statement of case or the part to be struck out is an abuse of the process of the Court and is likely to obstruct the just disposal of the proceedings;

• (a) that the statement of case or part to be struck out discloses no reasonable grounds for bringing or defending a claim.

8 The claim for Summary Judgment

9 The Claimant and the Defendant have both filed affidavits in support of their respective positions in relation to this application for summary judgment. In their defence, in addition to counterclaiming for the allegedly outstanding balance of the purchase price, the Defendants sought to assert that there had been fraud by an employee at the branch of the Jamaica National Building Society in Port Antonio, at which both the Claimant and the Defendants maintained their accounts, and suggested that the alleged fraud could have implications for the claim and the defence. It was because of this that it was agreed that a representative of that company should be called to give evidence.

10 The allegations by the Claimant

11 The Claimant, Mr. Cowan, in his affidavit in support of the application for summary judgment (also set out in his statement of claim), alleged that pursuant to the terms of an Agreement for Sale dated March 2 1995, ("the Agreement"), he agreed to purchase and the defendants agreed to sell certain lands amounting to one quarter of an acre, and "being part of the land registered at Volume 1267 Folio 920 of the Register Book of Titles." The land was also described in the Claimant's statement of claim as "the lot numbered 6 on the approved sub-division plan prepared by Dennis Clay Commissioned Land Surveyor, from survey done in June 1995 at the instance of the defendants". This description is confirmed in the Defendants' defence. The purchase price of Two Million Eight Hundred Thousand Dollars ($2,800,000.00) was payable by a deposit of $88,000 on signing, a further deposit of $2,200,000.00 payable on or before the 24 ^th March 1995, with the balance of $512,000.00, "on completion". This is also admitted by the Defendants in their defence. "Completion" was to take place "on payment of ail monies payable under this agreement in exchange for Surveyor's Diagram in the name of the purchaser", while possession was to be granted "on payment of the second deposit."

12 According to the Claimant's affidavit sworn on December 23, 2003 and filed in support of the application for Court Orders on January 2, 2004, it was agreed that the Claimant who is ordinarily resident in the United Kingdom, would send the balance of the purchase price to the 1 ^st Defendant's bank account, Number 80013535 at (the Port Antonio Branch of) the Jamaica National Building Society (JNBS). The Claimant avers and, based upon the affidavit evidence and the evidence of the representative of JNBS, the court accepts, that the account number was the one given him by the 1 ^st Defendant. The Claimant further states that on the 16 ^th March 1995 he instructed his bankers to credit the said account with the Jamaican Dollar equivalent of Forty-three Thousand Three Hundred and Ninety-five Pounds Sterling ( £43,395.95) which converted to J$2,200,025.10. The building society confirmed by letter dated March 29, 1995 that this had been done. On the 14 ^th June 1995 he gave similar instructions and as a result received confirmation that J$450,000.00 had been credited to the Defendant's said account. Copies of the confirmation letters from JNBS were exhibited to the plaintiffs affidavit.

13 The Claimant further alleges that on the 25th November 1995, and the 8 ^th February 1996, he paid further sums of One Thousand One Hundred Pounds Sterling ( £1,100.00) and Ninety-two Pounds Sterling ( £92.00) respectively, to the Defendants' daughter, Heather Cowan, who also resided in England, for and behalf of the Defendants.

14 He received receipts which were also exhibited to the affidavit and, based on the rate of exchange agreed between the parties, the amounts given to the Defendants' daughter represented J$61,984.00 . Indeed, the receipt for the second payment to Heather Cowan was signed by her on behalf of David Cowan and endorsed "final payment". (There is in fact no dispute concerning these latter payments to the daughter which are both admitted in the defence). The claimant says that taken together, all...