Toushane Green v National Commercial Bank Jamaica Ltd and Another
| Jurisdiction | Jamaica |
| Judge | Straw J |
| Judgment Date | 21 March 2013 |
| Neutral Citation | [2013] JMSC Civ 45 |
| Docket Number | CLAIM NO. 2012 HCV02704 |
| Court | Supreme Court (Jamaica) |
| Date | 21 March 2013 |
[2013] JMSC Civ 45
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. 2012 HCV02704
and
Mrs. A. Cousins-Robinson instructed by Robinson & Clarke for the Claimant
Mr. K. Powel instructed by Michael Hylton & Associates for the Defendants
Sale of Goods Act — Ownership of Chattel — Bona fide Purchaser without Notice
The first defendant, National Commercial Bank Ja., Ltd. (NCB) recorded a Bill of Sale at the Island Record Office on July 25, 2007 in relation to a customer, Steven Scott. Mr. Scott granted the bank this Bill of Sale over his 2007 BMW motor vehicle as security for a loan of $5,000,000.00.
Mr. Scott deferred on the repayment of his loan and as a result, NCB authorized the second defendant, Mr. Owen Campbell on July 20, 2009 to recover possession of the vehicle.
On December 14, 2011, Mr. Campbell recovered possession of the 2007 BMW motor vehicle from the claimant, Toushane Green.
Mr. Green has brought a claim against both defendants for damages and recovery of possession of the vehicle. The Particulars of Claim state that he bought the said motor vehicle on or about October 25, 2011 from a car mart. At the time, he was shown the title which had the registered owner as Beverley Belnavis. The title had a signature at the back signing as transferor which appeared to be that of Beverley Belnavis.
The Particulars of Claim also aver that the title was already stamped at the Tax Office with a stamp dated July 26, 2011 and that there was no lien or mortgage endorsed on the title. The court has examined the title annexed and there is no dispute between the parties concerning this issue.
It is stated further that Mr. Green carried out due diligence by checking with the Tax Office and also CarFax in order to ensure that he was not purchasing a stolen vehicle. Having been so satisfied, he paid the full purchase price of $3.2 million (as agreed) to Ricardo Barker and Curtis Watson, the agents of Beverley Belnavis. There is no dispute in relation to these facts also.
NCB has now filed an application for summary judgment pursuant to Rule 15.2(a) of the Civil Procedure Rules (CPR) against the claimant on the ground that the claimant has no real prospect of succeeding on this claim.
The relevant section of the CPR provides as follows:
15.2 The court may give summary judgment on the claim or on a particular issue if it considers that-
a. The claimant has no real prospect of succeeding on the claim or the issue.
The court can therefore grant summary judgment once it is satisfied that the claimant has ‘no real prospect of succeeding.’
In discussing the equivalent provisions on summary judgment under part 24 of the English rules, Lord Woolf MR in Swain v Hillman (2001, 1 All ER 91, at 92) observed that the word ‘real’ distinguishes fanciful prospects of success.
In Gordon Stewart v Merrick Samuels, SCCA No. 2/2005, (delivered November 18, 2005, pg. 6). The President, Harrison JA stated that the prime test of ‘no real prospect’ requires that the learned trial judge do an assessment of the party's case to determine its probable ultimate success or failure:
The judge's focus is therefore in effect directed to the ultimate result of the action as distinct from the initial contention of each party.
It is important to note that in this case, the ultimate result of this action turns on the application of and interpretation of the law. However, there are relevant facts that will assist the court in the application of the law.
The application for summary judgment is based on the law dealing with the rights of parties in a Bill of Sale to possession a chattel.
Counsel for the defendants, Mr. Powell has submitted that the bank is the proper owner of the motor vehicle and is entitled to possession as the effect of a Bill of Sale is to transfer the ownership in the chattel from the granter to the grantee.
Counsel relied on Johnson v Diprose (1893) 1 QB 512 and Small Business Loan Board v Reid (1964) 7 WIR 287.
In Small Business, the Court of Appeal affirmed the above principle. It was held as follows:
The security given was an absolute assignment of the respondents' chattels and, subject to a provision for redemption on repayment, the appellant became the owner of the chattels. As owner, the appellant had the right to the immediate possession of the chattels, but the respondent was permitted to remain in possession as a mere bailee for and on behalf of the appellant who could terminate the bailment at its pleasure. As legal owner, the appellant at all times had the right to immediate possession of the chattels
...
In the Bill of Sale, signed by Mr. Scott, he assigned and transferred the motor vehicle to the bank, “To hold the same unto the Bank — and assigns absolutely subject to the provision for entry of satisfaction —” as outlined in the agreement.
There is no doubt therefore that the bank has been assigned ownership of the chattel and is entitled to possession as Mr. Scott has breached the terms of the agreement (i.e., repayment of funds to the bank and selling or otherwise disposing of the motor car (per Clauses 2 and 3c of the said Bill of Sale).
Counsel for the claimant, Mrs. Angella Cousins-Robinson has submitted that Mr. Green is a bona fide purchaser for value without notice of any other claim to the motor vehicle. She is relying on Sections 22, 23 and 25[1] of the Sales of Goods Act.
Before examining these sections of the Act, it is important to note that the Notice of Lien stamped by the Island Record Office on 12 th June 2007 in relation to the BMW, was never registered on the title. Mrs. Cousins-Robinson pointed to an error in recording of the chassis number. The error is in relation to one letter which reads ‘o’ instead of ‘p’. The defendants do not allege that this was ever corrected and in fact the Amended Defence filed 13 th March 2013 avers at paragraph 9 as follows:
The first defendant avers that despite attempts by it to secure custody of the certificate of title for the Motor Vehicle Mr. Scott collected same from the Inland Revenue Department and despite demand refused to provide it to the Bank. He has also refused and/or failed to satisfy his obligation under his loan agreement with the Bank.
I also note that the terms of the Bill of Sale required Mr. Scott to register or permit the registration of the interests of the bank on the title [par 26]. The relevant sections of the Act that the claimant is relying on are as follows:
Section 22 (1) —Subject to the provisions of this Act, where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller's authority to sell.
Section 23 — When the seller of goods has a voidable title thereto but this title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of the seller's defect of title.
Section 25 (1)...
To continue reading
Request your trial