Thomas v Crampad International Marketing Company Ltd et Al
| Jurisdiction | Jamaica |
| Judge | Kerr, J.A.,Carberry, J.A.,Campbell, J.A. |
| Judgment Date | 10 April 1987 |
| Neutral Citation | JM 1987 CA 31 |
| Docket Number | Civil Appeal No. 46 of 1984 |
| Court | Court of Appeal (Jamaica) |
| Date | 10 April 1987 |
Court of Appeal
Kerr, J.A.; Carberry, J.A.; Campbell, J.A.
Civil Appeal No. 46 of 1984
C. M. Daley and L. Heywood for appellant.
W. B. Frankson, Q.C. for 1st respondent.
R. Codlin and Mrs. Barbara Lee for 2nd respondent.
Statement of claim - Amendment
Specific performance - Amendment of statement of claim to add claim for specific performance granted after close of defence — Judgment for an order for specific performance of sale of property — Damages for trespass by appellant — On counterclaim judgment for damages for breach of covenants by respondents — Appeals by parties. Judge erred in entertaining application to amend statement of claim — Cause of action had not arisen at time wait filed — No claim for breach of contract at time pleadings closed — Could not be anticipated that on pleadings breach of contract or prayer for specific performance were to be determined at trial — Justice of case against granting amendment — Order for specific performance cannot stand — Entry by landlord premature — Action for trespass maintainable — On Counterclaim order made for recovery of possession.
The appellant as owner of 6 Marvic Close, St. Andrew, by an agreement dated 15th August, 1980 leased those premises, including a dwelling-house and furniture, to the first plaintiff, a company incorporated in and under the laws of Jamaica, for a term of three years. The second plaintiff and her father, Ronald Brown, were Directors of the company. The second plaintiff was the company's nominee in occupation as permitted by Clause 3 of the Agreement.
On June 1st, 1982, the appellant claiming that his right of entry had accrued on the expiration of a notice to quit, entered the demised premises and ejected the second plaintiff. By writ filed 8th June, 1982, the plaintiffs jointly brought an action against the appellant claiming damages for trespass to goods, forcible dispossession and praying for an injunction to restrain the defendant “from trespassing or remaining in possession of the demised premises.”
On the basis of affidavits filed by and on behalf of the plaintiffs an interlocutory injunction was granted in the terms preyed.
The plaintiffs' claims were unconditionally denied and contested in the pleaded defence of the defendant who counter-claimed for damages and recovery of the premises on the following grounds:
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(1) Deterioration of the premises by the neglect or default of the plaintiffs or by breaches of express covenants in the lease.
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(2) The lease agreement having been terminated by an effective notice in accordance with a specific term in the lease, the defendant has lawfully exercised his contractual right to re-take possession and the interlocutory injunction was based on false claims affidavits.
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(3) The dwelling house was required as a residence for the defendant and his family.
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(4) Damages for breach o covenants and for the wrongful occupation of the premises.
Vanderpump, J., despite strenuous objectives by the defence acceded to an application on behalf of the plaintiff company made after the close of the defence and granted an amendment to the plaintiff's claim by adding a claim for specific performance on the basis of an allegation in the statement of claim that there had been an exercise of the option to purchase contained in the lease. On the claim so amended, the learned judge gave judgment for the plaintiff for an order for specific performance of a contract of sale of 6 Marvic Close. In addition, on the claim for trespass he gave to the first plaintiff nominal damages of $500.00 and to the second plaintiff $5,000.00.
On the counter-claim he gave judgment for the defendant for $19,719.00 for damages for breach of covenants against the second–named plaintiff for $9,296.00 being reimbursement to the defendant for the employment of security guards due to the delay in resuming possession after the defendant in obedience to the injunction had relinquished occupation. Consistent with the order for specific performance the defendant's claim for recovery of possession was rejected. The learned judge's reasons for judgment were fully set out in his written judgment dated 6th July, 1984.
On appeal the appellant sought variation of the judgment to the following extent:
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(i) That the judgments and award of damages in favour of the plaintiffs be set aside.
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(ii) That an order for possession be granted him against the first plaintiff.
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(iii) That certain claims for damages disallowed by the learned trial judge be granted to the appellant.
In turn, the respondents by respondents' notices sought a variation of the judgments on the counter-claim by setting aside the judgments in favour of the appellant and substituting judgments in favour of the respondents.
The first ground argued by the appellant was of a preliminary nature in that (i) it challenged the jurisdiction of the trial judge in the absence of consent by the defendant to grant the application to amend the statement of claim so as to include a cause of action which arose after the writ had been filed; and (ii) contended that in any event in granting the amendment the Court did not exercise its discretion judicially.
Now the plaintiffs' statement of claim contained the following averments relevant to this question:
“1. ………
5. That before the said lease was terminated the defendant purportedly served
Notice on the plaintiff in accordance with the terms of the said lease seeking to bring the lease to an end.
6. That the said Notice was defective, in that, among other things it did not specify the exact period of its duration neither did it conform with the provisions of the Rent Restriction Act……
11. Further or in the alternative the plaintiffs will say if which is not admitted the said Notice aforesaid was valid and the term in the said lease was determined the plaintiffs held over and thereby became a tenant protected by the Rent Restriction Act under the said terms and conditions stipulated in the lease aforesaid. The plaintiffs will further say that the entry by the defendant upon the said premises as hereinbefore described constitutes a breach of a statutory duty and the plaintiffs fall within the category of persons whom the statute intends to protect.
13. That in the month of June 1982 the plaintiffs delivered a letter to the defendant together with a cheque for $15,000.00 pursuant to its right to exercise the option contained in the said lease and the defendant tore up the cheque and stated that he wanted the premises”
In response, both in the stated defence and in the counter-claim, defendant countered that the notice was valid, that the first plaintiff being a company was not entitled to the security of tenure ac a statutory tenant under the Rent Restriction Act and in response to paragraph 12 pleaded thus:
“In answer to paragraph 12 of the Statement of Claim the defendant admits that on the 10th of June, 1982 he received a letter from the first plaintiff's attorneys-at-law dated 9th June, 1982 together with a cheque for $15,000.00 in the purported exercise of an option which the first plaintiff alleged it had and the defendant tore the said cheque in the presence of a representative of the first plaintiff and informed the said representative that the first plaintiff had no option to exercise and that he was not selling his house. The defendant subsequently returned the torn cheque un-negotiated to the first plaintiff's attorneys-at-law through the defendant's attorney-at-law by letter dated 11th June 1982 rejecting the said purported exercise of an alleged option:– The defendant denies that on the 9th of June 1982 the plaintiffs had any option pursuant to the terms of the lease agreement or that any alleged option was properly exercised. The defendant will rely on the plaintiffs' aforesaid conduct as evidence of the mala fides of the plaintiffs in the relationship between the plaintiffs and the defendant touching the said lease agreement and of the intention of the plaintiffs to use their alleged possession after the due termination of the said agreement to ground a false claim to an option.”
In his judgment Vanderpump, J., said that the writ contained:
“No breach of contract, that appeared later as paragraph 12 of the Statement of Claim. This was clearly a new cause of action and was accordingly an irregularity. In his closing address Mr. Daley asked that it be dismissed. He cited Brickfield v. Newton [1971] 3 All E.R. 323, 333–4. What he should have done is to have made an application to set aside the irregularity; O. 2, r.2. He did not do that. He filed a defence which resulted in a waiver of the irregularity. He cannot now complain.”
Before us Mr. Daley submitted in effect that the learned judge was not competent to grant the amendment since at the time of the filing of the writ, the cause of action had not yet arisen. The writ dated 7th June, 1982 was filed in the Registry of the Supreme Court on the 8th June and the purported exercise of the option was made on June 10, 1982.
The learned trial judge in his judgment at p.14 (p.120) did specifically note that the option was exercised on 10th June, though apparently he did not appreciate its significance.
In reply Mr. Codlin submitted that when parties pleaded summaries of the facts upon which they are relying for their respective cases and called evidence in support, they vested the Court with jurisdiction to determine all the issues raised and dealt with and the question for this Court would be whether there was evidence upon which the learned trial judge could have decreed specific performance. If there was, then the Court of Appeal should not interfere. He sought support in Order 18, rule 15 and which is applicable to Jamaica by virtue of section 686 of the ...
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