Vinayaka Management Ltd v Genesis Distribution Network Ltd

• Jurisdiction: Jamaica
• Judge: Brooks P,D Fraser JA,Laing JA (AG)
• Judgment Date: 14 October 2022
• Neutral Citation: JM 2022 CA 105
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CIVIL APPEAL NO COA2022CV00076

Between

Vinayaka Management Limited

Applicant

and

Genesis Distribution Network Limited

1 ^st Respondent

And

Nohaud Azan

2 ^nd Respondent

and

Ashnik Land Holdings Limited

3 ^rd Respondent

[2022] JMCA App 32

Before:

THE HON Mr Justice Brooks P

THE HON Mr Justice D Fraser JA

THE HON Mr Justice Laing JA (AG)

SUPREME COURT CIVIL APPEAL NO COA2022CV00076

APPLICATIONS NOS COA2022APP00179, COA2022APP00189, COA2022APP00190 & COA2022APP00196

IN THE COURT OF APPEAL

Ian Wilkinson KC, Lenroy Stewart and Jhawn Graham instructed by Wilkinson Law for the applicant

John Graham KC and Ms Peta-Gaye Manderson instructed by John G Graham & Co for the first respondent

Dr Lloyd Barnett, Weiden Daley, and Mrs Deneice Beaumont-Walters instructed by Hart Muirhead Fatta for the second and third respondents

Brooks P

1 I have read in draft the reasons for judgment of my brother Laing JA (Ag). I agree with his reasoning and have nothing further to add.

D Fraser JA

2 I too have the draft reasons for judgment of my brother Laing JA (Ag) and agree with his reasoning. There is nothing that I wish to add.

Laing JA (AG)

3 There were a number of applications before the court for consideration stemming from the orders made by a single judge of appeal (‘the single judge’) related to an appeal filed on behalf of Vinayaka Management Limited (‘the applicant’) challenging the decision of Staple J (Ag), made on 7 July 2022.

4 On 23 September 2022 having heard the parties we made the following orders:

We promised to provide our reasons for the decision and this is in fulfilment of that promise.

• “1. Application number COA2022APP00179 filed by the [applicant] on 18 August 2022, to vary or discharge the decision of the Honourable Mrs Justice Marcia Dunbar- Green JA, made on 17 August 2022 is refused.

• 2. Application number COA2022APP00189 filed by the [applicant]on 26 August 2022, for the respondents to give an undertaking as to damages or make payment into court is refused.

• 3. Application number COA2022APP00190 filed by the second and third respondents on 30 August 2022 for an order for the [applicant]to give security for the second and third respondent's costs of defending the appeal, is granted.

• 4. The [applicant]is to pay the sum of $2,500,000.00 into an interest bearing account in the joint names of the firms/attorneys-at-law representing the [applicant]and the second and third respondents, at a financial institution to be agreed on by the parties, pending the hearing of the appeal, such payment to be made within 30 days of the date hereof.

• 5. Application number COA2022APP00196 filed by the first respondent on 14 September 2022 for an order for the [applicant]to give security for the first respondent's costs of defending the appeal, is granted.

• 6. The [applicant]is to pay the sum of $2,500,000.00 into an interest bearing account in the joint names of the firms/attorneys-at-law representing the [applicant]and the first respondent, at a financial institution to be agreed on by the parties, pending the hearing of the appeal, such payment to be made within 30 days of the date hereof.

• 7. The [applicant's]appeal shall be dismissed with costs if the security is not provided in the amount, in the manner and by the time ordered.

• 8. The costs of Application Nos COA2022APP00179 and COA2022APP00189 are awarded to the respondents, to be taxed if not agreed.

• 9. The costs of Applications Nos COA2022APP00190 and COA2022APP00196 are to be costs in the appeal.”

Background

5 On 17 September 2021, Mr Sunil Vangani on behalf of a company named Royal Palm Limited and Mr Derrick Feare on behalf of the first respondent, Genesis Distribution Network Limited, entered into an agreement for sale as the purchaser and vendor respectively, in respect of property situated at Lot 12 Bogue Estate in the parish of Saint James, registered at Volume 1439 Folio 71 of the Register Book of Titles and the 1/15 ^th share in common properties comprised in certificate of title registered at Volume 1219 Folio 753 (hereinafter referred to as ‘the property’). The agreed purchase price was USD$4,400,000.00 and a deposit of USD$220,000.00 was paid by Mr Vangani to the first respondent.

6 The applicant was incorporated as a limited liability company under the laws of Jamaica on 5 October 2021. Mr Vagani is its Managing Director and majority shareholder of the applicant. The applicant was incorporated to complete an agreement for sale with the first respondent. They entered into an agreement for sale (‘the AFS’) which was dated 10 November 2021 and which was identical in all respects to the agreement for sale executed by Royal Palm Limited, save that the purchaser was now the applicant.

7 On or about 23 December 2021 the attorney-at-Law for the first respondent advised the attorney-at-Law for the applicant that the first respondent had unilaterally decided to cancel the AFS because it had found another purchaser who was willing to pay a significantly higher figure for the property, namely US$6,500,000.00.

8 Mr Vangani, on about 11 January 2022, lodged a caveat against the registration of any change in the proprietorship or any dealing in respect of the property. The first respondent lodged a registrable instrument of transfer to Ashnik Land Holdings Limited, the third respondent. The second respondent, Mr Nohaud Azan, is the principal of the third defendant. As a result of the instrument of transfer being lodged, the registrar of titles warned that the caveat would lapse on 26 April 3033, unless otherwise directed by a judge.

9 On 22 April 2022, the applicant filed a claim form and particulars of claim against the first respondent (which was at that time, the sole defendant in the court below), seeking a number of reliefs including specific performance of the AFS, a declaration that the AFS constituted a valid agreement between the parties and that the first respondent's purported rescission was invalid. The applicant also sought an injunction preventing the first respondent from selling the property to the third respondent or any other party.

10 The applicant filed a notice of application for court orders on 26 April 2022 seeking injunctive relief against the first respondent (‘the application for injunctive relief’). The application was accompanied by an affidavit in support of the application filed on 26 April 2022 sworn to by Mr Vangani.

11 By that application, the applicant sought to prevent the first respondent from transferring or in any way dealing with the property until after the determination of the claim and from dealing with or using the property in any manner which was prejudicial to the applicant. The applicant also sought an order to prevent the Registrar of Titles/National Land Agency from dealing with the property until the determination of the claim and an order that the caveat lodged by the applicant remain in force until the determination of the claim.

12 The applicant's application came up for hearing on 26 April 2022 before Pettigrew- Collins J. On that date, interim injunctive relief was granted by the learned judge, basically in terms of the orders sought by the applicant, and an inter partes hearing of the application was scheduled for 26 May 2022. The second and third respondents thereafter successfully applied to be added as parties to the claim.

13 Following several adjournments, the inter partes hearing of the application for injunctive relief was heard by Staple J (Ag), who on 7 July 2022, made the following orders:

• “1. The Claimant's application for interlocutory injunction is refused.

• 2. The application by the Second and Third Defendants for discharge of the interim injunction is granted.

• 3. Leave to appeal is granted to the Claimant.

• 4. The Claimant is granted an interim injunction pending the outcome of an application by the Claimant to the Court of Appeal for an injunction n pending appeal, as follows:

  • i. An interim injunction is granted restraining the first Defendant whether by itself, its agents, servants or otherwise howsoever, from transferring or in any other way dealing with the Certificate of Title for the property at Lot 12, Bogue Estate, in the parish of St. James registered at Volume 1439 Folio 71 of the Register Book of Titles and1/15 ^th share in the common properties comprised in Certificate of Title registered at Volume 1219 Folio 753 of the Register Book of Titles (hereafter called ‘the said property’):

  • ii. The First Defendant and the Registrar of Titles and/or the National Land Agency are prohibited from taking any steps, or any further steps, regarding Discharge Number 239234, Transfer Number 2392348 to Ashnik Land Holdings Limited and Mortgage Number 2392349 or any other dealing or accompanying instruments affecting the said Certificate(s) of Title;

  • iii. The caveat numbered 2371025 lodged on behalf of the Claimant against the said Certificate(s) of Title on the 11 ^th day of January, 2022, shall remain in place;

  • iv. The Claimant gives its undertaking as to damages, and the said appeal and application in the Court of Appeal shall be filed no later than 11 July 2022 by 3:00 pm.

• 6. Costs to the Defendants.

• 7. The Claimant's Attorneys-at-Law are to prepare, file and serve this Order.”

14 Staple J (Ag) refused to grant the interim injunction that was being sought on two main bases. The first, was that the AFS had not been stamped, and accordingly, by virtue of section 36 of the stamp duty act it could not be entered into evidence for purposes of being enforced (this will be referred to herein for convenience as ‘the stamp duty point’). In arriving at this conclusion, he relied on the case of Lookahead Investors Limited v Mid-Island Feeds (2008) Limited et al [2012] JMCA App 11 (‘ Lookahead’). The second, assuming he was wrong on the stamp duty point, was that the AFS was validly terminated by the applicant in accordance with...