Urban Development Corporation v Jacitar (JA) Ltd

• Jurisdiction: Jamaica
• Judge: Morrison P,F Williams JA,P Williams JA
• Judgment Date: 27 January 2017
• Neutral Citation: JM 2017 CA 7
• Docket Number: SUPREME COURT CIVIL APPEAL NO 10/2011
• Court: Court of Appeal (Jamaica)
• Date: 27 January 2017

[2017] JMCA Civ 1

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Morrison P

The Hon Mr Justice F Williams JA

The Hon Miss Justice P Williams JA

SUPREME COURT CIVIL APPEAL NO 10/2011

Between

Urban Development Corporation

Appellant

and

Jacitar (JA) Limited

Respondent

John Givans and Miss Carissa Bryan instructed by Vacianna & Whittingham for the appellant

Dr Randolph Williams and William Hines for the respondent

Morrison P

1 I have read the draft reasons for judgment of my brother F Williams JA. I agree with his reasoning and have nothing useful to add.

F Williams JA

2 On 7 October 2016, having heard this appeal, we made the following orders:

• “(i) The appeal is allowed;

• (ii) Costs to the appellant to be agreed or taxed;

• (iii) The court orders that the sum of $1,772,098.89, together with any accrued interest thereon, now being held in the account in the joint names of the respective attorneys-at-law for the parties at the Cross Roads Branch of the National Commercial Bank, pursuant to the order of the court made on 5 July 2011, be released to the attorneys-at-law for the appellant.”

3 We now seek to fulfil our promise made then to put our reasons in writing.

Background

4 Pursuant to a five-year lease agreement made on 1 February 1990, the respondent leased from the appellant, commercial space (that is, shops 51 and 52 on the ground floor of a building in downtown, Kingston). The building is a part of strata plan number 79, and is registered at volume 1128, folio 658 of the Register Book of Titles. From those shops the respondent, a wholesaler of fabric, operated a warehouse.

5 Between 22 and 25 May 1993, the respondent's said warehouse was broken into and a fairly-large quantity of fabric stolen.

6 By writ of summons and statement of claim dated 18 May 1994, the respondent sued the appellant for damages for breach of contract; and, in the alternative, negligence. By the same suit, the respondent also sued in negligence Protection and Security Limited (the security company). That company had been engaged to provide 24-hour security for the building in which the respondent's warehouse was located. The security company was the 2 ^nd defendant in the suit in the court below. The claim was for the sum of $1,148,620.00 for special damages, general damages and costs.

7 Pursuant to the said lease agreement (the lease), the respondent paid, as was required, a monthly sum of $2,123.33 for maintenance. The purpose of the payment of this sum was described in clause (h) of the third schedule to the lease as being for the “…safe, efficient and orderly use, maintenance and upkeep of all parts of the Building… including… the provision of twenty-four hour security at the building”.

8 As it turns out, the security services were not in fact provided by the appellant itself. Instead, the contract for the provision of the said services was one dated 20 June 1990, executed between a company known as Urban Maintenance (1977) Ltd (UML), (a subsidiary of the appellant); and the security company.

The defence in the court below

9 In its written defence dated 3 June 1994 and filed in the court below, the appellant advanced a defence that was a denial of both the alleged negligence and breach of contract. It also contended that if any of the defendants was negligent, it would have been the security company, which, it averred, failed to provide adequate security services for the building. In relation to the allegation that it, the appellant, was in breach of its contract with the respondent, the appellant asserted that the said security company was not its servant or agent; but an independent contractor. The appellant sought to rely on a provision in the lease (clause 7(2)) which stipulates that the lessor would not be liable for theft or removal of any property from the leased premises other than that done by its servants or agents.

10 The security company failed to enter an appearance or to file a defence. As a result, a default judgment was entered against it on 16 May 1995. That default judgment was subsequently set aside and then re-entered on about 22 May 2007, when the court ordered that damages be assessed against the security company at the trial of the matter against the appellant.

11 The appellant had also sought an indemnity or contribution against the security company. This it did by filing a notice dated 16 November 1995.

12 The matter came on for trial on 18 and 19 July 2007 and, in a written judgment dated 17 December 2010, the court made these orders:

• “(i) Judgment for the Claimant on the claim for breach of contract against the 1 ^st Defendant in the sum of $1,772,098.89.

• (ii) Judgment for the Claimant in negligence against the Second Defendant, in the sum of $1,772,098.89. Interest at 6% from the 18 ^th May 1994 to 16 ^th December, 2010.

• (iii) The 1 ^st Defendant's claim for an indemnity and contribution is dismissed.

Costs to the Claimant to be agreed or taxed.”

The appeal

13 The appellant filed an appeal against the judgment on 31 January 2011 and filed an amended notice of appeal dated 7 February 2011. It also sought and obtained on 6 July 2011 a stay of execution of the judgment, pending appeal. A condition of the grant of the stay was an order that the amount of the judgment be paid into an interest-bearing account in the joint names of the attorneys-at-law for the parties.

The grounds of the appeal

14 These were the grounds of the appeal:

• “(i) The Learned Trial Judge fell into error in holding that the First Defendant had breached the said Lease Agreement. There was no evidence of the alleged breach and the ruling that there was, put the Appellant in the position of an insurer of the Claimant's goods.

• (ii) No proper evidence was adduced to support the said sum of $1,148,620.00 awarded as the value of the goods, and the sum of $574,310.00 awarded as the mark-up. Further the said sum of $574,310.00 was not pleaded.

• (iii) The Learned Trial Judge failed to properly construe and apply Clause 7(2) of the Lease which stipulated that—

  “The Lessor shall not be liable for the theft or removal of any property from the leased premises other than by its servants or agents”.

  No evidence was adduced showing that the alleged theft and/or removal of the Claimant's goods was done or committed by the First Defendant's servants or agents.

• (iv) The Trial Judge defeated the purpose of the filing of Witness Statements by allowing the Claimant's/Respondent's Witness Frank Weir to give extensive viva voce evidence much of it properly inadmissible, under the guise of amplification, rendering the filing and serving of the said Witness Statement of little use to the Appellant.”

The hearing of the appeal The appellant's submissions

15 Before us, Mr Givans for the appellant presented oral arguments for what he referred to as his most cogent grounds of appeal, whilst relying on his written submissions for advancing the other grounds. He argued: (a) the ground relating to the interpretation of clause 7(2) of the lease (that is, ground (iii)); and (b) the matter of damages awarded – in particular the mark-up on the special damages, (that is, ground (ii)).

16 In relation to clause 7(2) of the lease and the evidence that was led in the court below, Mr Givans submitted that it was crystal clear that nowhere in the court below was any evidence led to support the respondent's contention that its goods were taken by anyone connected with the appellant. He argued that there were no primary or secondary facts adduced to show who stole the goods.

17 Mr Givans further submitted that the learned trial judge failed to address his mind to clause 7(2) at all. Additionally, he submitted that, apart from referring to the clause on page 4 of the judgment, the learned trial judge paid no further attention to it.

18 In relation to the damages awarded by the learned trial judge, it was Mr Givans' submission that there was, in a nutshell, an insufficiency of evidence to prove special damages. All that existed and the only matter on which the award was based, he argued, was a list of items lost that was prepared by Mr Frank Weir, one of the respondent's principals. Mr Givans also submitted that, given the quantum of the alleged loss, there needed to have been some documentary proof of it — whether in the form of a purchase order; a contract between the respondent and its suppliers or a tax return or other similar document. The mark-up, it was further submitted, had to be regarded as special damages; yet it was not pleaded or proven (referring to MacNamee v Kasnet Online Communications RMCA No 15/2008, judgment delivered 30 July 2009.)

The respondent's submissions

19 Dr Williams, who argued the appeal on behalf of the respondent, agreed with Mr Givans that the central question both in the court below and on appeal was whether the respondent's goods were stolen by the servants or agents of the appellant.

20 Although the issue might not have been dealt with fully and explicitly by the learned trial judge, Dr Williams submitted, it can clearly be seen to have formed a part of the consideration and ultimate decision of the court below.

21 Dr Williams further submitted that the security guards were the only persons who were supposed to have been at the premises at the material time and that there was no sign of forced entry through the respondent's door. It was, therefore, he contended, almost an inescapable inference to say that the security guards must have been the ones to have stolen the goods.

22 On behalf of the respondent, Dr Williams also placed heavy reliance on the case of Roe v Ministry of Health; Woolley v Ministry of Health [1954] EWCA Civ 7, dealing with the issue of vicarious liability.

23 In relation to Mr Givans' submissions on damages, Dr Williams submitted that the award for damages should not be...