Watersports Enterprises Ltd v Jamaica Grande Ltd, Grand Resort Ltd and Urban Development Corporation

• Jurisdiction: Jamaica
• Judge: HARRISON, J.A.
• Judgment Date: 04 February 2009
• Neutral Citation: JM 2009 CA 3
• Judgment citation (vLex): [2009] 2 JJC 0401
• Court: Court of Appeal (Jamaica)
• Date: 04 February 2009

IN THE COURT OF APPEAL

BETWEEN

WATERSPORTS ENTERPRISES LTD.

APPELLANT

AND

JAMAICA GRANDE LIMITED

1 ^ST RESPONDENT

AND

GRAND RESORT LIMITED

2 ^ND RESPONDENT

AND

URBAN DEVELOPMENT CORPORATION

3 ^RD RESPONDENT

Dr. Lloyd Barnett, Keith Bishop and Miss Kerry-Ann Ebanks instructed by Bishop and Fullerton for Appellant/Applicant.

Stephen Shelton, Miss M. Wong and Gavin Goffe instructed by Myers Fletcher Gordon for Jamaica Grande Ltd.

Mr. Christopher Samuda instructed by Samuda and Johnson for Grande Resort.

John Vassell Q.C. and Miss Tenesha Watkin instructed by Vacianna and Whittingham for Urban Development Corporation.

CIVIL PROCEDURE - Stay of execution - Discharge of injunction - Recovery of possession - Whether appellant had good and arguable case - Proprietary estoppel

HARRISON, J.A

The Application

1 This is an application by WaterSports Enterprises Ltd. (the Applicant/ Appellant) to stay execution of the order of Brooks, J., made on the 25 ^th of September, 2008.

2 The terms of the order of the learned judge are as follows:

• 1. Watersports Enterprises Limited does not have any estate or interest in any of the lands comprised in Certificates of Titles registered at Volume 1211 Folio 653 and Volume 1094 Folio 240 and Volume 1094 Folio 241 of the Register Book of Titles;

• 2. Watersports Enterprises Limited does not have any estate or interest in either of the land comprised in Certificates of Title registered at Volume 1236 Folio 249 or Volume 1059 Folio 240 of the Register Book of Titles;

• 3. Judgment for the Defendants against the Claimant in Claim No. 2004 HCV 02189;

• 4. The injunctions granted in Claim No. 2004 HCV 02189 are hereby discharged;

• 5. The Registrar of Titles shall forthwith remove Caveat No. 1317519 from affecting Certificates of Title registered at Volume 1211 Folio 653, Volume 1094 Folio 240, Volume 1094 Folio 241, Volume 1236 Folio 249 and Volume 1059 Folio 240 of the Register Book of Titles;

• 6. A Case Management Conference to be held on the 7th of October 2008 at 9:00 for 45 minutes in respect of Fixed Date Claim Form No. 2004 HCV 2364 to provide directions concerning an enquiry as to damages allegedly suffered by Jamaica Grande Limited as a result of Watersports Enterprises Limited having lodged Caveat No. 1317519;

• 7. Watersports Enterprises Limited shall quit and deliver up on or before the 31st day of October 2008, to Grande Reports Limited and/or The Urban Development Corporation, all those parcels of land forming parts of the lands comprised in Certificates of Title registered at Volume 1236 Folio 249, Volume 1059 Folio 240, Volume 1211 Folio 653, Volume 1094 Folio 240 and Volume 1094 Folio 241 of the Register Book of Titles;

• 8. Costs of all other parties to be paid by Watersports Enterprises Limited, such costs to be taxed if not agreed;

• 9. Certificate for two counsels granted in respect of each claim.

3 In consequence of the foregoing, the order sought inter alia, by the Applicant as follows:

"1. That the judgment of Mr. Justice Brooks delivered on the 25th day of September 2008 be stayed pending the outcome of the appeal, in particular the order which requires the Appellant to vacate on or before the 31st October 2008 the premises it occupied and conduct its business from since the 1960s.; and

...."

The Grounds in Support of the Application

4 The grounds on which the Applicant is seeking the orders are, inter alia, as follows:

The Relevant Factual Background

• a. The Appellant has a good and arguable case on appeal in that the learned judge misinterpreted Section 24 (4) of the Urban Development Corporation Act (UDC) thus depriving the Appellant of its property or rights to private property it has occupied openly and undisturbed for well over 40 years in breach of the protection of its property rights granted by section 18 of the Constitution;

• b. The learned judge misdirected himself by concluding that the agreement signed between the Appellant and the hotel operators which was made after the expiration of the limitation period refers to land occupied by the Appellant...