University of the West Indies v Mona Rehabilitation Foundation

• Jurisdiction: Jamaica
• Judge: FORTE, P. , LANGRIN, J.A. , SMITH, J.A. (Ag.) , FORTE, P:
• Judgment Date: 31 July 2001
• Neutral Citation: JM 2001 CA 51
• Judgment citation (vLex): [2001] 7 JJC 3109
• Court: Court of Appeal (Jamaica)
• Date: 31 July 2001

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE FORTE, P THE HON. MR. JUSTICE LANGRIN, J.A THE HON. MR. JUSTICE SMITH, J.A. (AG.)

SUPREME COURT CIVIL APPEAL NOS: 17 & 21/2001

BETWEEN

UNIVERSITY OF THE WEST INDIE

DEFENDANT/APPELLANT

AND

THE MONA REHABILITATION FOUNDATION

PLAINTIFF/RESPONDENT

Dennis Goffe, Q.C. with Haydee Gordon instructed by Myers, Fletcher & Gordon

Emil George, Q.C, with Conrad George instructed by Hart, Muirhead & Fatta

John Francis

INJUNCTIONS - Quia timet - Restraining of construction of residential buildings on land adjacent to Rehab Centre - Whether nuisance to hospital and patients will be created - Whether interlocutory injunction correctly granted

FORTE, P.

1 This is an appeal from the following Order made by Donald Mcintosh J, sitting in the Supreme Court:

"It is hereby ordered that:

• 1. The Defendant be restrained until further Order by itself, its servants, agents, lessees, licensees, or otherwise howsoever:

  • (a) from dealing with, entering, remaining upon, or crossing the land demised to the Plaintiff by the Defendant under an oral lease for 99 years at a peppercorn and edged red on the plan annexed hereto;

  • (b) from permitting or allowing the land or any part thereof adjacent to or within 600 meters of the Plaintiff's medical wards and other facilities at the Mona Rehab Centre (edged blue on the plan annexed hereto) to be used for residential premises, in particular, from permitting its user for the purpose of housing relocated squatters moved from Mona Commons.

• 2. The costs of this application be costs in the cause.

  Order made for speedy trial."

2 Before we commenced this appeal, Mr. John Francis of the Attorney-General's office applied for the consolidation of Appeal SCCA 17/2001 with the appeal before us (SCCA 21/2001). The application was granted with no objection from the other parties. It should be noted that the appeal of the Attorney-General (SCCA17/01) though filed separately related to the same case and subject matter as that in appeal SCCA 21/01.

3 The plaintiff/respondent is an institution set up during a polio epidemic which befell Jamaica in 1954. It was situated on its present locale (12 acres) as a result of a 99 year lease granted by the appellant at peppercorn to the respondent per the Ministry of Health for this purpose of treating and rehabilitating polio victims. It has developed since 1954, into a fully-fledged hospital of over 100 beds caring for those suffering from physical disability, regardless of the cause. Mark Golding, the Chairman of the respondent attests in his affidavit that the Mona Rehabilitation Foundation was established in 1996 to assume the undertaking and operations at the Rehab Centre, and was vested with, and has assumed the benefit of the said lease. The majority of its patients are now motor accident and gunshot wound victims. It is now regarded in the region as a centre of excellence in its field, and serves patients from all around Jamaica and the wider Caribbean.

4 The appellant, the University of the West Indies, is itself a beneficiary of the Government of Jamaica of a long lease of the lands on which it is situate, granted for the purpose of setting up that institution for the academic benefit of Caribbean people. The respondent alleges that the appellant has entered into an agreement to lease a part of this land to the Government of Jamaica for the purpose of facilitating the Government's plan to relocate thereon squatters from Mona Common.

5 During the arguments before us, it was agreed:

• (i) That the land on which the housing development to house the squatters will be built is that piece of land to the north of the University Laundry (the "laundry land") and which sits directly across the roadway from the Rehab Centre now renamed the Sir John Golding Rehab Centre, named after Sir John Golding the virtual developer of the Centre.

• (ii) There is no plan to erect houses for squatters on the land edged in red on the plan tendered in evidence as Exhibit

• (iii) The respondent has no proprietary interest in the land described in (i) above.

6 As a result of these agreements Mr. John Francis stating that the Attorney General had no further interest, withdrew from the appeal.

7 On that background, it may now be appropriate to examine the indorsement on the writ filed in the suit by the respondent, no Statement of Claim having yet been filed.

8 The indorsement reads as follows:

"AND THE PLAINTIFF CLAIMS:

• 1. Damages for nuisance

• 2. Damages for breach of the Defendant's duty to permit the Plaintiff quiet enjoyment of premises leased to it.

• 3. Damages for trespass

• 4. An Injunction restraining the Defendant by itself, its...