Toussant Tucker v Inez Bogues

• Jurisdiction: Jamaica
• Judge: Anderson K., J,Anderson, J,Hon. K. Anderson, J.
• Judgment Date: 31 May 2013
• Neutral Citation: [2013] JMSC Civ 90
• Docket Number: CLAIM NO. 2012HCV02698
• Court: Supreme Court (Jamaica)
• Date: 31 May 2013

[2013] JMSC Civ 90

IN THE SUPREME COURT OF JUDICATURE

CLAIM NO. 2012HCV02698

Between:

Toussant Tucker

Claimant

and

Inez Bogues

Defendant

Carlton Williams instructed by Williams , McKoy & Palmer for the Claimant

George Traile instructed by Phillip Traile & Co. for the Defendant

Anderson K., J

1 This ruling is now being delivered after oral arguments were presented to me concerning an application by the defendant for Court Orders, on May 24, 2013. I had then reserved my ruling, but now, having had the opportunity to have given careful consideration to the respective oral and written arguments made to this court hereby deliver this written ruling. On May 31, 2013, I had informed the parties, in Chambers, of my ruling. I had then promised to put my reasons in writing and this ruling constitutes my fulfilment of that promise.

2 The defendant's application for Court Orders which was filed on July 24, 2012, concerns a claim which was filed against her by the claimant, on May 15, 2012. This court will first outline the nature of the claim, which has by permission of this court and without objection to the application by the claimant, for amendment of his claim, been amended and as of May 24, 2013, filed as an amended claim form and amended particulars of claim respectively.

3 The claim as amended, seeks various reliefs, the main ones of which are specific performance of a contract for the sale of a premises located at Merrivale in the parish of St. Andrew and registered at Volume 495 Folio 42 of the Register Book of Titles (hereinafter termed as “the premises”); and/or in the alternative, damages for breach of contract; and/or in the alternative, damages for fraud and/or exemplary damages.

4 The essence of the claimant's allegations, is that on June 16, 1991, the then proposed vendor — who is the defendant and the then proposed purchaser — who is the claimant, entered into a written agreement for sale of the premises. The purchase price was $415,000.00, of which, the sum of $100,000.00 was paid as a deposit upon the execution of that agreement for sale by the parties to this claim. It is further alleged that within months of the parties' execution of the agreement for sale and the payment of the deposit, the defendant (then proposed vendor), sought to increase the purchase price to $600,000.00, but this was objected to by the claimant (then proposed purchaser). As a consequence, the claimant lodged a caveat, in order to protect his interest in the premises. At the date when the agreement for sale was executed, the premises was then registered in the name of Cyprian Eugene Ferguson, deceased. This is a fact which is not disputed by the defendant. It is also not disputed by the defendant that also at that date and up until now, the claimant was then and still is, the sole beneficiary of the estate of Cyprian Eugene Ferguson, deceased. Furthermore, as this court now understands it, there is no dispute that at the date when the agreement for sale was executed, the defendant was not then legally able to have sold the premises, as she had not, prior to then, taken the necessary steps to have her name registered as the lawful owner of same. Furthermore, it is also not disputed that at some later date, the defendant applied to the Registrar of Titles to be registered as the owner of the premises, as a consequence of adverse possession. The date of that application to become the registered holder, is as yet unknown to this court, as the claimant's statement of case has not as yet, disclosed same and the defendant has not, as yet filed any statement of case, albeit that she has filed an acknowledgement of service which verifies that she was served with the claimant's claim form, but not particulars of claim, as the claimant, no doubt at that time, through her attorney, being oblivious of the Rules of Court requiring otherwise, served an affidavit in support of claim form, setting out certain particulars of his claim. The claimant's claim form and that affidavit were filed on May 15, 2012 and were both served on the defendant on June 20, 2012. The filing of an affidavit in support of claim form, in a regular claim form matter as this is, was clearly done in breach of applicable Rules of Court. See Rules 8.1(1) (b) and 8.2 of the Civil Procedure Rules (CPR) . Nonetheless, since the defendant has not, at least up until now, taken issue with the failure to serve particulars of claim on him, at the same time as the claim form was served on him and since also this court has, without objection from the defence, granted permission to amend claim form and particulars of claim and the same have now both been filed, this court will make no issue of same, for the purposes of this ruling on the defendant's application for court orders. To date, however, the defendant has filed no defence which would, at the very least, be part and parcel of her statement of case. In that regard, see Rule 2.4 of the Civil Procedure Rules for the definition of the term —“Statement of Case.” The failure to file any defence to date is a point which will be of some significance as regards the outcome of this ruling upon the defendant's application for Court Orders and thus, will be addressed further, in that context, later on in this ruling.

5 As things later progressed involving the parties to this claim, the caveat placed on the title by the defendant, was permitted to lapse, so as to permit the defendant to become registered as the owner of the premises. The defendant became the registered owner of said premises, by means of Certificate of Title registered at Volume 1454, Folio 813 of the Register Book of Titles. Following on that, the claimant served on the defendant and on the defendant's attorney-at-law, a notice requiring completion of the sale and making time of the essence. That notice was served on the defendant via registered post and was received by her, on January 10, 2012. To date, however, that once proposed sale, has not been completed and now the parties are in dispute concerning same, before this court. The claimant is alleging fraud on the defendant's part and the claimant's counsel has contended before me, that one of the aspects of fraud which have been particularized in the claimant's Amended Particulars of Claim, pertains to, “concealed fraud,' this insofar as the defendant had, with intent to defraud the claimant, pursued and obtained registered title to the premises based upon adverse possession.

6 Having now completed the outline of the claimant's case, in response to which, no defence has, as yet, been filed, the bases underlying the defendant's application for Court Orders, can now...