Wayne Boothe v Denise Boothe v Digicel (Jamaica Ltd)

 
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[2019] JMSC Civ 99

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Anderson, J.

CLAIM NO. 2014 HCV 04601

Between:
Wayne Boothe
1 st Claimant/1 st Ancillary Defendant
and
Denise Boothe
2 nd Claimant/2 nd Ancillary Defendant

And

Digicel (Jamaica Ltd.)
Defendant/Ancillary Claimant

Stephen Sheltonr, QC and Stephanie Ewbank, instructed by Myers, Fletcher and Gordon, for the Claimants

Georgia Gibson-Henlin, QC, Stephanie Williams and Nicola Richards, instructed by Henlin, Gibson and Henlin, for the Defendant

Claim for Damages for Breach of Contractual Agreement Related to use and Occupation of Property and for Defamation — Lease Agreement — Breach of Covenant of Quiet Enjoyment — Ancillary Claim — Credibility of Witnesses — Whether Alleged Defamatory Words were said and Whether those Words are Defamatory

Anderson, K., J
1

This claim retains to a situation in which the defendant admittedly used and occupied the claimants' premises between the period of October 1, 2010 and May 7, 2014, to store a tank and pump on the claimant's premises, which were used for the storage of fuel. As of May 7, 2014, the claimants terminated their arrangement with Digicel, as regards that usage of their property. That was not a mutual termination of that arrangement. That termination arose, as a consequence of actions of the defendant which were taken, in relation to the alleged storage on the claimants' said premises, of stolen Digicel fuel, which caused the claimants concern. Aspects of those actions are being disputed for other purposes, within the overall ambit of this claim.

2

This is a claim for damages arising from the aforementioned use of the property by the defendant and is also, a claim for damages for defamation of character.

3

The claimants were admittedly paid the sum of $1,500,000.00, arising from the usage by the defendant, of the claimants' premises, for the first three (3) months, with the sum that was paid for each of those three (3) months, being $500,000.00. It is undisputed between the parties that that was not a sum which was ever agreed on, between the parties, as the sum expected to be paid for the defendant's usage and occupation of the claimants' premises.

4

The defendant has not denied that the said premises was being used by them during the aforementioned period of time and that only three (3) payments of $500,000.00 were made by the defendant to the claimant, during that period of occupation and usage. At the very least therefore, the claimants must be awarded the benefit of the sum of $500,000.00 multiplied by the number of months' usage of the premises by the defendant, less the sum of $1,500,000.00 already paid by the defendant to the claimants.

5

The total number of months' usage, up until the end of April, 2014, would have been 43 months and in addition to that, the claimants would, at the very least, also be entitled to recover compensation, arising from the defendant's occupation and usage of their premises, for at least one week in May of 2014. By my calculation therefore, the claimants would, at the very least, be entitled, if the defendant's counterclaim, which is now only seeking to recover damages for breach of the covenant of quiet enjoyment, were to be unsuccessful, to recover the sum:

$2, 200,000.00 ($500,000.00 x 44) plus $125,000.00 (1 week —$500,000.00 —4). Thus, that total would be: $2,325,000.00.

6

The defendant initially claimed in their ancillary claim, for the relief of specific performance and for continuing possession of the claimants’ premises in accordance with the terms of that which they contend, is the lease agreement, as evidenced by a letter of Intent — Exhibit 3 of the Agreed Bundle of Documents. That letter of intent specified that the term of ‘the lease’ would be five (5) years.

That letter of intent was signed by a representative of the defendant, but although, there are designated spaces with their names thereon, where it would have been expected that if they were willing to have signed that letter of intent, they would have signed same, in those spaces, the claimants' signatures are not on that document.

7

Since this is now: 2019, the defence counsel had properly conceded, during presentation of her oral closing submissions to this court, that continued possession of the relevant premises is no longer, legally feasible and that also, specific performance of the alleged ‘lease agreement’ is no longer possible. That is so, because the alleged term of the ‘lease agreement’ expired years ago.

8

As far as the defendant's ancillary claim is concerned, whereby the defendant is seeking now, to only recover damages for breach of the covenant of quiet enjoyment, it is the firm view of this court, that no lease agreement has ever existed between the parties, such that the defendant can properly recover from the claimant, damages for breach of the covenant of quiet enjoyment. See: Street v Mountford [1985] AC 809.

9

I am also not of the view that there existed between the parties, an agreement to create a lease. There were definitely, negotiations ongoing with a view to reaching agreement as to a lease being granted by the claimants to the defendant, which would have allowed for the defendant to use the claimants' premises for the defendant's intended purpose (s).

10

There was no agreement between the parties, as to the sum to be paid by the defendant to the claimants, if the defendant was to be a tenant of the claimant, using a part of the claimants' premises, to store fuel there. That is undisputed as between the parties who have testified in this court and whose evidence is relevant for this aspect of this case, those persons being: The 1 st claimant, for the claimants and Anthony Barrows, for the defendant. The fact that the 1 st claimant accepted sums of money that were paid from time to time, to enable the defendant to use the relevant premises for a particular purpose, does not mean that the parties reached agreement, either on the sum to be paid for usage of that premises by the defendant, much less that the parties had agreed to create a tenancy pertaining to that usage. The H.L case of Street v Mountford ( op. cit.), which was relied on, by the claimants' counsel, in making reference to various other cases therein, provides helpful guidance in matters such as these.

11

It is clear that not even the terms of the ‘letter of intent’ were ever agreed to, by either of the claimants, much less, both of them — who are the owners of the relevant property. That is the only reasonable explanation which this court has been able to infer, arising from the fact neither of the claimants ever signed that, ‘letter of intent.’

12

As regards the claimants' claim for defamation of character, I am of the view that the claimants' lead counsel quite properly conceded that said claim, based on the evidence presented to this court, in respect of that claim, can only now properly be pursued and likely be successful, at the instance of the first claimant, as against the defendant. That is, of course, because it is the first claimant who is well known in and around the general area where the relevant properly is situated, as being the owner and operator of the gas station which conducts its business operations as such, on that premises. Whilst the 2 nd claimant is a co-owner of the relevant premises, she is not involved in the day-to-day operations of the gas station. The alleged defamatory words pertain to an alleged unlawful, in fact alleged criminal act that was taking place...

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