The Commissioner of Lands v Homeway Foods Ltd

• Jurisdiction: Jamaica
• Judge: Evan Brown, J.
• Judgment Date: 24 April 2020
• Date: 24 April 2020
• Docket Number: CLAIM NO. 2008 HCV 01887
• Court: Supreme Court (Jamaica)

[2020] JMSC Civ 70

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO. 2008 HCV 01887

Between

The Commissioner of Lands

Claimant/Appellant

and

Homeway Foods Limited

1 ^st Defendant/Respondent

and

Stephanie Muir

2 ^nd Defendant/Respondent

Miss Christine McNeil and Miss Carla Thomas instructed by the Director of State Proceedings for the appellant

Miss Carol Davis for the respondents

Compensation for mesne profits — Whether compensation includes the award of interest — Award of interest — Whether Registrar has discretion to award interest — Whether the compensation for mesne profits attracts interest payable on judgment debts — Judicature (Supreme Court) Act ss. 12 and 51. Judicature (Supreme Court) Additional Powers of Registrar Act ss. 3 (1) and 5 (1). Law Reform (Miscellaneous Provisions) Act. Civil Procedure Rules 12, 14 and 65.23.

CHAMBERS

Evan Brown, J.

Introduction and background

1 This is an appeal from a decision of the Registrar of the Supreme Court of Jamaica in which she assessed mesne profits and awarded interest pursuant to a judgment under the Land Acquisitions Act. The matter came before the Registrar by virtue of the following order of the learned trial judge (made on 31 July 2012):

“Homeway is entitled to compensation for mesne profits from the date of it relinquished possession until the date of recovery of possession. If not agreed within 60 days of this Order, these mesne profits are to be assessed by the Registrar of the Supreme Court”.

By notice of assessment, filed on 27 July 2018, the respondents applied to the Registrar for the assessment of mesne profits, pursuant to the above order. The sole ground of the application disclosed that the parties had failed to reach an agreement. The matter therefore came on for assessment before the Registrar on 11 February 2019.

2 The details of the Registrar's order appear below:

• 1. The parties agree to accept the average of the 2 assessors as the amount for mesne profits for the period May, 2006 to May 2016, at $16,129,657.00.

• 2. The Registrar assessed the applicable interest rate on mesne profits at 15% per annum. The Registrar orders that that interest rate be applicable for the period May 2006 to May 2016.

• 3. The Registrar orders that the interest rate of 6% per annum be applicable on the assessed sum from today's date to the date of payment.

• 4. The Registrar assessed that the sum due and owing to the defendants is $39,024,875.00 with interest at 6% per annum from today's date until the date of payment.

3 Issue was taken with two findings of law and one finding of fact. The contentious findings of law were, firstly, the applicable interest rate on the mesne profits is 15% per annum and two, the interest of 6% is applicable on the assessed sum from “today's date”. The finding of fact under challenge was the sum due and owing to the defendants is $39,024,875.00 with interest at 6% from today's date until the date of payment.

4 Three grounds of appeal were argued, adumbrated alphabetically:

• (a) The Registrar erred in law in awarding an interest rate of 15% on the sums agreed as mesne profits as the Registrar had no jurisdiction to award interest.

• (b) The Registrar erred in awarding an interest of 6% on the sums agreed as mesne profits as this was not a judgment debt.

• (c) The Registrar erred in finding that the sum due and owing to the defendants is $39,024,875,00 with interest at 6% per annum.

Issues

5 The substantive and overarching issue raised by this appeal is whether the Registrar has the power to award interest. Consequently, grounds (a) and (b) will be addressed together, for the most part. A second and subsidiary issue is whether it was competent to award interest of 6% per annum on the sum agreed as mesne profits. Ground (c) raises no point of law. The question of fact raised here is purely mathematical and its resolution depends on the answer to the first issue.

Ground (a)

6 Under ground (a), Miss Thomas submitted that the post of Registrar of the Supreme Court was created by statute and referred to sections 11 and 12(1) of the Judicature (Supreme Court) Act. Consequently, the Registrar can only perform duties provided for either under the Judicature (Supreme Court) Act or other statutory instruments. It was further argued that the nature of the duties of the Registrar are all administrative. Here reliance was placed on the last clause of section 12(1). Additional fortification for these submissions was sought in the case of Jennifer Messado and Company v North America Holdings Company Limited [Consolidated] (unreported) Supreme Court Civil Cl No.2011 HCV 0493 judgment delivered 20 June 2014 ( Jennifer Messado).

7 Continuing her submissions, it was urged that the Registrar may, however, make orders competent to be made by a Judge in Chambers but only as circumstanced and circumscribed by section 13 of the Judicature (Supreme Court) Act. The powers of the Registrar are further delineated by section 3(1) of the Judicature (Supreme Court) Additional Powers of Registrar Act.

8 Learned counsel then postulated that the duties of the Registrar are as prescribed by the foregoing provisions and if they do not confer on her the power to award interest on mesne profits under the Land Acquisition Act, then the Registrar lacks jurisdiction. What the court said in Jennifer Messado, supra, at paragraph 53, was cited in support of this submission.

9 It was learned counsel's contention that the award of interest is discretionary. This was especially so in this case where the respondent requested interest at the rate of 20% per annum. So that, the Registrar was called upon to exercise a discretion first, whether to grant interest and secondly, at what rate. In both instances, therefore, the Registrar was called upon to exercise a discretion. Reference was then made to the evidence of weighted loan interest rates obtaining at the commercial banks over the period January 1996 to May 2018 which was placed before the Registrar. Since the award of interest calls upon the Registrar to exercise discretion, it falls outside section 12 of the Judicature (Supreme Court) Act. That is to say, it is not in the nature of a ministerial act. Furthermore, the award of interest does not fall within any of the functions set out in the schedule to the Judicature (Supreme Court) Additional Powers of Registrar Act. The inevitable conclusion, therefore, is that the Registrar erred when she awarded interest.

10 Learned counsel turned her attention to the duty of the Registrar to “make such investigations and take such accounts in relation to proceedings in the Supreme Court as the Court may direct …”. The point urged here was that although it was the Court that ordered the Registrar to assess mesne profits, the order did not include a stipulation to award interest. Even if the court had done so, it would have been of no effect as a Judge could not have conferred on the Registrar a jurisdiction not stated in the legislative framework.

Ground (b)

11 Miss Thomas submitted that the award of mesne profits is not a judgment debt. It was a decision given by the Registrar. Therefore, the Registrar had no jurisdiction to award the accrual of 6% interest on the total award. Section 51 of the Judicature (Supreme Court) Act which prescribes an award of interest on judgment debt, was cited in support of this submission.

Ground (c)

12 The short submission was that this ground is the mathematical result of grounds (a) and (b). If it is that the Registrar had no jurisdiction to award interest, the sum due and owing would be the assessed mesne profits minus the awarded interest.

Respondents' submissions

13 Learned counsel for the respondents did not point the court to any legislation which specifically authorises the Registrar to award interest. She submitted, however, that the assessment of compensation for mesne profits necessarily contemplates the assessment and award of interest. Counsel adverted to the duty of the Registrar under section 12 of the Judicature (Supreme Court) Act and submitted that the Registrar was particularly proceeding under the direction of a Judge. The Registrar, having been directed to assess compensation for mesne profits, in order to put the aggrieved party in the position of recovering what has been lost pursuant to the principle of restitutio in integrum. Counsel insisted that that was what the Registrar did in this case.

14 Counsel then cited three cases to demonstrate the propriety of an award of interest at the commercial rate, and in circumstances where it had not been pleaded. In Jamaica Pre-Mix Concrete Limited v Othneil Lawrence (T/A Runaway Bay Communication Centre) and Alecia Lawrence (T/A Runaway Bay Communications Centre) [2014] JMSC Civ 71, at para 8, Batts J held that in commercial matters interest may be awarded as compensation for being kept out of one's money. Goblin Hill Hotels Limited v John Thompson and Janet Thompson (unreported) Court of Appeal, Jamaica, [Supreme Court] Civil Appeal No 57/2007 delivered 19 December 2008 was also cited to underline the point. The well-known case of British Caribbean Insurance Company Limited v Delbert Perrier (1996) 33 JLR 119.

15 Miss Davis responded to the submission that the court ordered-assessment of mesne profits could not have envisaged interest as the Judge would not have been competent to confer a power on the Registrar outside of the legislative framework. Miss Davis contended that position ought properly to have been the subject of an appeal to the Court of Appeal.

16 Miss Davis argued that the award of interest falls within the power of the Registrar to “make such investigations and take such accounts as the Court may direct…” It would be peculiar, she said, if the Registrar can call witnesses, among other things, to use her discretion and apply the law to do what she had been...