enrichment through an act of fraud, the claimant was asking the court to
find unjust enrichment where the consideration totally fails. This
argument should be rejected on the basis that there was never an
agreement between the parties; consequently, there was no privity of
contract and thus consideration in this case does not arise;
(xi) It is well established that in claims of debt or simple contract verbal
acknowledgements or promises without more are insufficient. There
was no verbal contract between the parties and in alleging that there
was such a contract, the claimant is unable to show that the
circumstances of this case exempts the applicability of the Limitation
of Actions Act so as to make the contract enforceable;
(xii) The claimant has failed to establish in contract or in equity that the
defendants by their words or deeds entered into an agreement with her
to give her an interest in the said land in exchange for constructing a
dwelling house on their land. Judgment should be given for the
defendants on the claim and counterclaim and it should be ordered that
the claimant return forthwith the Duplicate of Certificate of Title
belonging to the 2
nd
defendant and all other relevant documents to the
defendants. Failure to so do should result in the claimant being held in
contempt of court with a penalty of imprisonment.
DISCUSSION AND ANALYSIS
I
SSUE
1:
W
HETHER THE CLAIM IS RESTRICTED TO THE CAUSES OF ACTION SPECIFICALLY
PLEADED IN THE CLAIM FORM
?
[13] An appropriate starting point is an examination of the contention by
counsel for the defendants that the claimant’s claim should be limited to
recovery of possession and the claim for the sum of $4,800,000.00 because
there was no claim in the claim form for any breach of contract nor was there a
claim for proprietary estoppel by the claimant.
[14] While the claimant has not expressly pleaded in her statement of case claims for
breach of contract and/or proprietary estoppel, on a careful reading of her
witness statement and that of her witnesses, those contentions are patent.
[15] In
Akbar Limited v Citibank NA [2014] JMCA Civ 43, Phillips J.A. considering
the issue of whether the defendant had specifically pleaded and proven his claim
for special damages, observed at paragraph 64 that:
[T]he important point is that the defendant must not be taken by surprise.
The defendant is entitled to know the type of claim being made by the
claimant and the amount that is being claimed. However, as stated by
Harris JA in Grace Kennedy Remittance Services Ltd v Paymaster
(Jamaica) Limited and Paul Lowe, SCCA No 5/2009, judgment
delivered 2 July 2009, endorsing Lord Woolf’s judgment/dicta in
McPhilemy v Times Newspaper[1999] 3 All ER 775, once the general
nature of a claim has been pleaded, if the witness statements are
exchanged those statements may supply particulars of a claim. There is
thus no longer the need for extensive pleadings. They are not
superfluous, they are still required to mark out the parameters of the case
of each party and to identify the issues in dispute, but the witness
statements and other documents will detail and make obvious the nature
of the case that the other party has to meet. In Eastern Caribbean Flour
Mills v Ormiston St Vincent and the Grenadines Civil Appeal No
12/2006 delivered 16 July 2007, Barrow JA at paras [43] and [44] also
endorsed the principles declared by Lord Woolf and stated: “[43] …
therefore, to prevent surprise at the trial, the pleading must contain the
particulars necessary to serve that purpose. But there is no longer a need
for extensive pleadings, which I understand pleadings to mean with an
extensive amount of particulars, because witness statements are
intended to serve the requirement of providing details or particulars of the
pleader’s case. [44] It is settled law that witness statements may now be
used to supply details or particulars that, under the former practice, were
required to be contained in pleadings…
[16] It appears therefore that the concern of the court is to ensure that the defendant
knows the case that he has to meet. The pleadings serve to establish the
parameters of such a claim and the issues which arise. The witness statements
and other documents should thereafter provide the details and particulars in
relation to that claim.