Judy Stowe v Kerel Lashley

• Jurisdiction: Trinidad & Tobago
• Judge: Mr. Justice Robin N. Mohammed
• Judgment Date: 21 January 2020
• Neutral Citation: TT 2020 HC 21
• Court: High Court (Trinidad and Tobago)
• Docket Number: Claim No. CV 2014-04544
• Date: 21 January 2020

Judy Stowe

Claimant

and

Kerel Lashley

(as the Executor of the Estate of Gloria Morales, deceased, who died on the 22 ^nd August 2008, by his lawful attorney Evans Petamber by virtue of Power of Attorney DE201002629688D001)

1 ^st Named-Defendant

The Estate of Gloria Morales (Deceased)

(who died on the 22nd August 2008)

2 ^nd Named-Defendant

Before

The Honourable Mr. Justice Robin N. Mohammed

Claim No. CV 2014-04544

IN THE HIGH COURT OF JUSTICE

Appearances:

Ms Angelique S. Olowe instructed by Mr Terrance Dick and Mr Phillip Wilson for the Claimant

Mr Walede Michael Coppin instructed by Scoons Attorneys and Counselors at Law for the Defendants

DECISION ON DEFENDANT'S APPLICATION FOR SUMMARY JUDGMENT AND/OR TO STRIKE OUT THE CLAIMANT'S CLAIM

I. Introduction and Procedural History

1 This matter involves a claim for damages arising out of a breach of contract entered into by Kerel Lashley, via his lawful attorney, Evans Petamber (hereinafter referred to as the “First Defendant”). The Claimant filed a Claim Form and Statement of Case on the 1 ^st day of December 2014 claiming that the First Defendant breached an Agreement for Sale of the property situate at No. 10 Dennis Mahabir Street, Woodbrook, Port of Spain (hereinafter referred to as “the said Property”)

2 The Claimant prayed for:

• (i) An injunction restraining Kerel Lashley and the Estate of Gloria Morales from taking possession of the said property.

• (ii) An order restraining the Defendants from entering and remaining on the said property.

• (iii) A declaration that the Defendants do not have the Grant of Probate or beneficial interest in the said property and as such are trespassers.

• (iv) An injunction restraining the Defendants from taking possession of the said property.

• (v) An injunction restraining the Defendants from interfering with the Claimant's use of the property.

• (vi) A declaration that the Claimant is entitled to remain in the said property.

• (vii) A Declaration that the Executor, Kerel Lashley, by virtue of his lawful attorney has no locus.

3 On the 1 ^st day of December, 2014 the Claimant also filed a Form 10 Notice of Application supported by affidavit for interim relief to prevent the sale, entry and interference of the said Property by the Defendants, their servants and/or agents. An interim ex parte injunction was granted on the said 1 ^st December in favour of the Claimant restraining the Defendants from selling, entering and/or interfering with the said Property as well as from taking possession of, and/or evicting the Claimant from, the said Property, until the further hearing of the application for interim relief or until further order.

4 On 7 ^th January, 2015, the return date for the injunction, permission was granted to Mr Coppin to appear amicus curiae for the Defendants on the basis that he was approached to represent the Defendants but was not yet officially retained. The Court granted him an opportunity to place himself on record by the 8 ^th day of January, 2015 and to file a response affidavit on behalf of the Defendants by the 30 ^th January, 2015. The Court also continued the injunction granted on the 1 ^st December, 2014 and adjourned the matter to the 25 ^th February, 2015.

5 On the 30 ^th January, 2015, three (3) affidavits in response were filed on behalf of the Defendants, one sworn by Kerel Lashley, one by Evans Petamber and the third by Farid Scoon, Attorney-at-Law and Managing Partner of Scoons, Attorneys and Counsellors at Law. A Defence was also filed on the 30 ^th day of January, 2015.

6 On the 25 ^th February, 2015, after hearing the Attorneys-at-Law for both the Claimant and the Defendants, it was ordered that the injunction granted on the 1 ^st December, 2014 be discharged. In addition, it was also ordered that the First Defendant's proposed application to strike out the Claim and/or for summary judgment be filed and served on or before the 31 ^st March, 2015. The Claimant was ordered to respond to the application by the 27 ^th April, 2015 and both the Defendants and Claimant were directed to file and exchange written submissions with authorities on or before 15 ^th May, 2015.

7 On April 1 ^st, 2015 the First Defendant filed and served its application to strike out and/or for summary judgment. Written submissions with authorities were filed and exchanged as directed.

8 I have considered the evidence and submissions filed by both the Claimant and Defendants. Upon review and application of the law in relation to summary judgment and striking out, I am of the view that the First Defendant's application does notsatisfy a suitable case for the grant of summary judgment. I have concluded that the Claimant has put forward a claim that has a reasonable prospect of success. I am of the opinion that the facts presented by the Defendant do not present a clear resolve to permit this court to grant summary judgment pursuant to Part 15.2(b) of the Civil Proceedings Rules 1998 (“CPR”). At the same time, I am also of the view that the Claimant's claim of fraud and breach of contract ought not to be struck out pursuant to Part 26.2(1)(b) & (c) of the CPR.

9 However, I am of the opinion that the Second Named Defendant which is “The Estate of Gloria Morales” is not a proper party to the proceedings. The court shall order that the Defendant's application to strike out the Second Defendant as a party to these proceedings be upheld. In accordance with Part 15.6(2) of the CPR this matter will continue at the stage of the case management conference and I shall give directions in preparation for the next hearing of this matter.

10 I have hereinafter canvassed the reasons for my decision.

II. The Application

11 Before the Court for determination is the First Defendant's Notice of Application filed on the 31 ^st March, 2015 pursuant to Part 26.2 of the CPR by which the First Named Defendant seeks an order that—

• [1] The claims against the Second Defendant in the Statement of Case of the Claimant filed on December 1 ^st 2014 be struck out as an abuse of process.

• [2] The claim of Fraud outlined in paragraph 20, paragraph 24 and its sub-paragraphs 24A, 24B, 24C, 24D and 24E be struck out as an abuse of process and disclosing no grounds for bringing the claim.

• [3] The claim for Breach of Contract outlined in the sub-paragraphs 24(i) – 24(xiii) of the Statement of Case be struck out as an abuse of process and disclosing no grounds for bringing the claim.

• [4] Summary Judgment be entered against the Claimant as the Claimant has no realistic prospect of success on her claims for fraud and breach of contract.

12 The grounds of the said Notice of Application are as follows:

• (a) The estate of Gloria Morales has no legal personality and is properly represented by the First Defendant who is being sued in his capacity as Executor of Gloria Morales. The First Defendant is the proper defendant of claims against the Estate of Gloria Morales and as such the First Defendant would invariably need to be appointed to act on behalf of the Second Defendant thereby subjecting a Defendant to two or more identical actions simultaneously. This would be an abuse of process.

• (b) The Claimant's action for fraud is vexatious, scurrilous and obviously ill-founded as it is in stark contradiction with the evidence she annexed to support her claim.

• (c) The Claimant's action for breach of contract fails on its face to disclose a claim that is sustainable in law because:

  • (i) The Claimant has failed to identify a valid contract or memorandum in writing for the sale of land under Section 4(1) of the Conveyancing and Law of Property Act Chap 56:01 on which she bases her cause of action and has failed to identify the terms breached.

  • (ii) The Claimant's allegations of breach of contract is vexatious, scurrilous and obviously ill-founded as it is based on a misapprehension of the law regarding contentious probate proceedings.

  • (iii) The Claimant's breach of contract is self-contradictory as she admits in paragraphs 15 and 24(i) to Probate being decreed in solemn form of law and in paragraph 10 that she received further notice of this grant by letter dated September 2 ^nd 2014.

  • (iv) There is no cause of action for breach of specific performance as alleged in sub-paragraph 24(x).

  • (v) The proper claim for failure to take up a grant is citation.

• (d) The claim for fraud and breach of contract are fanciful as it is clear that the allegations in the statement of case are contradicted by all the documentary evidence and other material on which it is based.

• (e) The Claimant has not pleaded and or annexed any contract that conforms to section 4 (1) of Conveyancing and Law of Property Act Ch 56:01 and satisfies the conditions for a valid agreement memorandum or note thereof, is in writing, and signed by the party to be charged or by some other person thereunto by him lawfully authorized. Rather, the Claimant attempts to resile from a valid contract which there is patent evidence that she has relied on over the course of three months.

• (f) The Claimant has not pleaded any sustainable breach of contract by the First Defendant as it is based on a misunderstanding of the law on contentious probate proceedings as contained in sections 67–70 of the Wills and Probate Act Chap 9:03 and the Civil Proceedings Rules 1998 (as amended). The Claimant has herself admitted that the Defendant has been granted probate in solemn form of law and that she has had knowledge of this at least from September 2 ^nd, 2014. The Claimant is therefore asking the Court to make an effectual order.

• (g) The Claimant's claim for breach of contract is internally contradictory as it alleges that the First Defendant has breached the contract by failing to obtain a grant of probate and rather than praying that the Court compels the First Defendant to do so via citation attempts to compel the First Defendant to grant specific...