Fatima Garcia Cox v Gloria Cox
| Jurisdiction | Turks and Caicos Islands |
| Judge | Mr. Justice B. St. Michael Hylton |
| Judgment Date | 29 July 2022 |
| Docket Number | Action No. CL 32/21 |
| Court | Supreme Court (Turks and Caicos) |
The Hon. Mr. Justice B. St. Michael Hylton QC (Ag)
Action No. CL 32/21
IN THE SUPREME COURT OF THE TURKS AND CAICOS ISLANDS
Mr. Mark Fulford and Ms Chloe McMillan for the plaintiff
Mr. Selvyn Hawkins Jr and Ms Shantae Francis for the 1 st defendant
No appearance by the 2 nd defendant
By writ of summons filed 22 April 2022 the Plaintiff seeks (among other things) declarations and an order of conveyance in relation to a parcel of land located at 56 to 55 Walter Cox Drive, registered at Parcel 60606/398 (“the Land”). The Land forms part of a larger estate which belonged to the 2 nd defendant's father Walter Cox, who is now deceased.
For ease of reference and intending no disrespect, I will refer to the plaintiff as “Fatima”, the 1 st defendant as “Gloria”, the 2 nd defendant as James”, and the 2 nd defendant's father as “Walter”.
Walter and Gloria were James' parents, James and Fatima are married, and Gloria was the administrator of Walter's estate.
In late 2008 or early 2009 Fatima moved to the Turks and Caicos Islands. She alleges that in the course of several conversations at around that time, James told her that there was an incomplete structure situated on the Land (“the Home”) and that Gloria would give him the Land. Fatima claims that thereafter, personally and together with James, she repaired and made additions to the Home. Fatima also claims that in 2012 with the assistance of her brother, she constructed another building on the Land.
In 2011 Fatima and James were married, and from 2011 to 2019 she, James and her children lived at the Home. In 2019 James left the Home because his relationship with Fatima had deteriorated. Shortly after, in 2020 Gloria commenced proceedings to have Fatima evicted from the Home.
Fatima claims Gloria's conduct is unconscionable, as she was well aware that Fatima has been residing at the Home with her children, of the extensive work Fatima had done on the Home and as she had not previously expressed that Fatima was a “mere guest” in the Home. Fatima also says that until shortly before filing this action she was unaware that Gloria had not transferred the Home to James.
Gloria has not filed a defence. Instead, on 21 March 2022, Gloria filed a summons to strike out Fatima's writ of summons. On 1 April 2022 Fatima filed a summons for summary judgment. James has neither acknowledged service nor filed a defence.
Gloria applies pursuant to O. 18 r 19 (1) of the Rules of the Supreme Court 2000 to strike out Fatima's writ of summons on the following grounds:
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a. it discloses no reasonable cause of action against Gloria; and/or
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b. it is scandalous, frivolous or vexatious; and/or
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c. it is an abuse of process of the Court.
Gloria has not personally sworn an affidavit in support of the striking out summons. The striking out summons is instead supported by the affidavit of her daughter, Felicita Cox-Walkin (“Felicita”). Fatima has not filed an affidavit in answer to the summons to strike out.
Fatima's application pursuant to O. 14 Rules of the Supreme Court 2000, is based on the ground that Gloria has no defence to the claim. Fatima's application is supported by her affidavit filed on 1 April 2022. Gloria has not filed an affidavit in answer to the summons for summary judgment.
In their affidavits and submissions in support of their respective summonses, Counsel for Fatima and Gloria rehearsed lengthy and conflicting factual backgrounds about prior related proceedings which have no bearing on the summary judgment application, and minimal bearing in respect of the striking out application (possibly relevant only to the abuse of process ground). The circumstances surrounding the related proceedings can be summarised as follows:
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a. On 15 October 2020, Fatima applied in the Magistrates Court for an order restraining Gloria from evicting her from the Home. On 20 October 2020 the Magistrates Court granted an interim injunction. Gloria subsequently made an application in that court for possession of the Home. On 3 November 2020 the Magistrate discharged the injunction and gave directions for the hearing of Gloria's application for possession.
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b. Prior to the determination of the Magistrates Court proceedings, Fatima commenced proceedings in the Supreme Court CL152/20 on 3 December 2020. The proceedings were filed in the wrong form, by originating summons, instead of by a writ of summons. At a hearing on 7 January 2021, Fatima withdrew the incorrectly filed originating summons. There is a dispute between the parties as to what happened at that hearing. Gloria claims that the learned Judge expressed certain views about the merits of Fatima's claim, and ordered her to pay Gloria's costs. Fatima denies that the Court made any order on 7 January 2021.
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c. Fatima subsequently filed the present action.
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d. On 22 February 2022 this Court stayed the Magistrates Court proceedings until a determination is made by this Court in this action.
This Court has not based its determination of either summons on any comments which may or may not have been made at the hearing of the originating summons on 7 January 2021, but on the pleadings, evidence and submissions before me.
I will consider Gloria's summons to strike out first, both because it was first in time, and more importantly, because an affirmative ruling on that summons will obviate the need for a determination on the summary judgment summons.
Although Gloria's application relies on all three grounds in the rule, her primary ground was that the writ and statement of claim disclose no reasonable cause of action against her. In order to succeed on an application to strike out an action on this ground, a defendant must satisfy the Court that even if the plaintiff proves all the pleaded allegations, the action would still fail. I must therefore proceed on the premise that if the action goes to trial, Fatima will be able to prove all the allegations in her statement of claim.
Royal Bank of Scotland International Ltd v JP SPC 4 is a very recent decision of the Privy Council. The learned Law Lords summarized the law in this way 1:
An application to strike out should not be granted unless the court is certain that the claim is bound to fail…a claim should not be struck out unless it is effectively unarguable, has no chance of succeeding and as such is a plain and obvious case.
Fatima is seeking to rely on a proprietary estoppel against Gloria. The statement of claim makes the following references to Gloria who is the registered owner of the Home:
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16. The Plaintiff has lived at the property with her children and her husband as a family, from 2011 to March 2019 (when the 2 nd Defendant left the
family home), but the Plaintiff has personally resided at the property from or around 2009 to present date, with the full knowledge of the 1 st Defendant, depriving herself of the opportunity of constructing a home elsewhere for her family. -
17. This was well known to the 1 st Defendant, who is well aware that the Plaintiff has been residing there with her children, and her husband, the 2 nd Defendant for years and that the Plaintiff has done extensive work on the property. Ms Gloria Cox would go to the soup kitchen weekly and would carry back plant skins and give to the Plaintiff for her garden. She would also on occasion stop by when the works were ongoing and observe; on some of those occasions she saw the Plaintiff working and would make jokes about her work ethic.
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21. Neither the 1 st Defendant or the 2 nd Defendant expressed to Plaintiff that she was a mere guest on the property prior to 2 nd Defendant's departure from the property and prior...
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