Elisha B. Miller v Paulina Martha Simone Glinton, Marlon U. Miller, Gorbachev Miller

JurisdictionBahamas
CourtCourt of Appeal (Bahamas)
JudgeMadam Justice Crane-Scott, JA,Mr. Justice Jones, JA,Mr. Justice Evans, JA
Judgment Date09 June 2022
Neutral CitationBS 2022 CA 80
Docket NumberSCCivApp. No. 4 of 2022
BETWEEN
Elisha B. Miller
Appellant
and
Paulina Martha Simone Glinton
Marlon U. Miller
Gorbachev Miller
Respondents
BEFORE:

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Jones, JA

The Honourable Mr. Justice Evans, JA

SCCivApp. No. 4 of 2022

COMMONWEALTH OF THE BAHAMAS

Civil Appeal — Appeal from grant of interlocutory injunction — Appeal from refusal of crossapplication for vacant possession — Whether judge misapplied principles for grant of interlocutory injunction — Whether judge took irrelevant considerations into account — Whether judge erred in dismissing the Appellant's cross-application for vacant possession — Order 29 rr. (1) and (2) — Order 59 RSC, 1978.

Held:

For all the reasons set out in this judgment, the appeal is dismissed. The usual order is that costs follow the event. Accordingly, the Appellant shall pay the Respondents’ costs of the appeal, such costs to be taxed if not agreed.

In the circumstances of this case the judge's decision to grant the interlocutory injunction was not unreasonable and discloses no error of law. The evidence shows that after voluntarily leaving the house, the Appellant had repeatedly caused the utilities to the house where the Respondents still lived, to be disconnected.

In seeking an interlocutory injunction, albeit for a second time, all that the Respondents really sought from the judge was an order which would restrain the Appellant from interfering with their previously unhindered enjoyment of the amenities to the house until trial of the substantive action. Damages would obviously not provide them with an adequate remedy for the inconvenience they would suffer in the interim pending resolution of the dispute; and in any event, the balance of convenience clearly lay in favour of the grant of interlocutory relief.

The Appellant's Cross-Summons for vacant possession was clearly ill-conceived. It was instituted under O. 29 R.S.C., which, as the title suggests, is intended to facilitate, inter alia, the grant of interlocutory injunctions; as well as the detention and preservation or inspection of any property which is the subject matter of the cause or matter, or as to which any question may arise therein.

On an application for interlocutory relief, some resort to the pleadings and to the evidence will be inevitable. The fact that the judge has referred to the pleadings and to the affidavit evidence on the Court file without more does not automatically mean that the judge has taken account of irrelevant material, or that a “mini-trial” has erroneously been held.

We are further satisfied that nothing in the learned judge's Ruling suggests that she was influenced to dismiss the Appellant's Cross-Summons by findings she had earlier made in relation to the Respondents’ Summons. On the contrary, the judge's decision to dismiss the Cross-Summons was based on her finding (at paragraph 26 of her Ruling) that the Appellant's cross-application sought a remedy which lay at the heart of the substantive dispute and which will be determined at trial.

American Cyanamid v. Ethicon Limited, [1975] A.C. 396; considered

Business Ventures Solutions Inc v. Anthony Tharpe [2022] JMSC Civ. 15; mentioned

Chaplain v. Barnett (1912) 28 T.L.R. 256; mentioned

Franses v. Somar Al Assad and others, [2007] EWHC 2442 (Ch); considered

National Commercial Bank Jamaica Limited v. Olint Corp. Limited, [2009] UKPC 16; considered Regina v. Secretary of State for Transport ex parte Factortame Ltd et al (No. 2) [1991] 1 AC 603; mentioned

Scott v. Mercantile Accident Insurance Co., (1892) 8 T.L.R. 320; mentioned

The Appellant appealed against a written Ruling delivered by a Supreme Court judge which, inter alia, acceded to the Respondents’ application under O. 29 r. 1 of the Rules of the Supreme Court (“RSC”) and granted an interlocutory injunction directing the Appellant, his agents, servants or employees, to cease from interfering with the Respondents’ quiet enjoyment (specifically the water, power and cable services) to the house situated at Lot No. Coral Reef Estates Subdivision, Phase 2, in the City of Freeport, in the Island of Grand Bahama until the determination of the Respondents’ substantive action.

The Appellant further appealed the judge's further order which dismissed his Cross-Summons pursuant to Order 29 r. 2 and the inherent jurisdiction in which he sought an order granting him vacant possession of the above property.

The Appellant filed 14 grounds of appeal which sought to impugn the exercise of the learned judge's discretion in various ways.

After hearing arguments, the Court took time to consider its decision.

APPEARANCES:

Mr. Paul Wallace-Whitfield, Counsel for the Appellant

Ms. Constance McDonald Q.C., Counsel for the Respondent

Decision delivered by The Honourable Madam Justice Crane-Scott, JA
Introduction
1

This is an appeal by the Appellant against a written Ruling of the Honourable Madam Justice Hanna-Adderley handed down in the Supreme Court on 20 December, 2021 in which she, inter alia, acceded to the Respondents’ application under O. 29 r. 1 of the Rules of the Supreme Court (“RSC”) and granted an interlocutory injunction directing the Appellant, his agents, servants or employees, to cease from interfering with the Respondents’ quiet enjoyment (specifically the water, power and cable services) of the house situated at Lot No. 26 Coral Reef Estates Subdivision, Phase 2, in the City of Freeport, in the Island of Grand Bahama (“the property”) until the determination of the substantive action.

2

The Appellant further appeals the judge's further order which dismissed his Cross-Summons pursuant to Order 29 r. 2 and the inherent jurisdiction which sought an order granting him vacant possession of the property.

3

After hearing the parties’ respective arguments, we reserved to consider the grounds of appeal.

4

We have dismissed the appeal. The detailed reasons for our decision appear below.

5

The following background to the appeal, including excerpts from the judge's written Ruling, will set the stage for examination of the grounds of appeal.

Background
6

According to the affidavit evidence, the Appellant and the 1 st Respondent had lived together in a common law relationship for some 35 years. In or about October 1999, the Appellant purchased the property in question in his sole name and the house served as their residence and that of their children for over two decades.

7

In 2019 the Appellant vacated the residence and informed the Respondents that he was getting married. The 1 st Respondent was subsequently advised by way of letter addressed to her by the Appellant's attorney-at-law that the house had been appraised for the sum of $150,000.00 and that she and the children had the right of first refusal to purchase it for that sum failing which the house would be sold. The Respondents were given 90 days to secure financing. They were also informed that if the property were sold to a third-party, they would have to vacate the property before the sale.

8

On 27 November 2020, the Respondents having not accepted the offer, the Appellant wrote to the 1 st Respondent once again. He confirmed, inter alia, that on 24 September 2020 he had told her that his offer for the Respondents to purchase the house still stood but that the electricity and all other utilities would be turned off with effect from 15 December 2020. He enclosed a cheque for $ 2,000.00 to assist her with relocating and gave his permission for her to remove certain items from the home.

9

On 17 December 2020, the Appellant left the house for good and disconnected the electricity followed by the cable service. On 16 March 2021, he commenced eviction proceedings against them in the Magistrate's Court.

10

On or about 18 June 2021, the Respondents commenced proceedings against the Appellant by way of Originating Summons seeking a declaration as to their entitlement to an equitable interest in the property. The proceedings were subsequently converted to a Writ action by an Order of Court and directions given for the filing and service of the pleadings.

11

On or about 29 June 2021, the 1 st Respondent discovered that the water to the property had been disconnected. On 9 July 2021 she obtained an interlocutory injunction from Justice Andrew Forbes in the Supreme Court for the restoration of all the utilities. The utilities were restored in obedience to the Court's Order. The injunction, however, expired after 30 days and was not renewed.

12

In September 2021, the Appellant again disconnected the electricity, water, and cable services to the property. On 8 October 2021, the Respondents applied by Summons once again for an interlocutory injunction returnable on 19 October 2021. Their Summons sought the following interlocutory relief:

“1. An order pursuant to Order 29 Rule 1 of the Supreme Court that the Defendant, his agents, servants or employees cease from interfering with the Plaintiff's quiet enjoyment (particularly that the Plaintiff cease from interfering with the water, power and cable) of the house located at no. 26 Coral Reef Estates Subdivision, Phase 2, in the City of Freeport until the matter herein is determined by the Court.

2. An order that the Defendant restore the electricity, cable and water to the house. Alternatively, an Order that the Grand Bahama Utility Company Limited, The Grand Bahama Power Company Limited and Cable Bahamas be authorized to connect utilities in the Plaintiff's names.

3. And (sic) Order that the Defendant pays the costs of this Application.

4. Such further or other relief as to this Honorable Court shall seem just pursuant to Order 29 rule 2(4).” [Emphasis added]

13

The Appellant filed a Cross-Summons on 13 October 2021. The Cross-Summons was also returnable on 19 October 2021. He sought an order for vacant possession of the house pursuant to O. 29 r. 2 RSC...

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