[2023] JMCA Civ 16

JAMAICA

IN THE COURT OF APPEAL

BEFORE: THE HON MRS JUSTICE MCDONALD-BISHOP P (AG)

THE HON MISS JUSTICE SIMMONS JA
THE HON MR JUSTICE BROWN JA (AG)

SUPREME COURT CIVIL APPEAL NO COA2020CV00010

BETWEEN MARTIN LYN 1ST APPELLANT

AND MELISSA ELIZABETH LYN 2ND APPELLANT

AND MARTYN MAXWELL LYN 3RD APPELLANT

AND SARAH CHIH-JEN HSIA 1ST RESPONDENT

AND MARVIN GORDON HALL 2ND RESPONDENT

AND HENDERSON EMANUEL DOWNER 3RD RESPONDENT

AND MARCOS HANDAL 4TH RESPONDENT

AND UNA PEARL WITTER 5TH RESPONDENT

AND BRENDA ROSE FRANCIS 6TH RESPONDENT

Michael Hylton QC and Ms Timera Mason instructed by Hylton Powell for the
appellants

Emile Leiba, Mrs Julianne Mais-Cox and Ms Chantal Bennett instructed by

DunnCox for the respondents

22 March 2022 and 31 March 2023

MCDONALD-BISHOP P (AG)

Introduction

[1] The case that has given rise to this appeal is an example of the disturbing and
unacceptable feature of the construction industry in Jamaica, where land developers
commence construction on lands, encumbered by restrictive covenants, before obtaining
an order from the court for modification or discharge of the covenants, as they are obliged
to do, under the Restrictive Covenants (Discharge and Modification) Act.

[2] These proceedings emanated from two claims brought in the Supreme Court
concerning a multiple-family residential development (‘the development’) constructed by
the appellants, Martin Lyn and his children, Melissa Elizabeth Lyn and Martyn Maxwell
Lyn (‘the Lyns’), in the area of the Corporate Area known as “The Golden Triangle”. The
first claim (2017HCV02997) was filed by the Lyns seeking modification of restrictive
covenants encumbering the land on which the development is constructed (‘the Lyns’
claim’). The second claim (2018HCV02906) was brought by the respondents, Sarah Chih-
Jen Hsia (‘Ms Hsia’); Marvin Gordon Hall (‘Mr Hall’); Henderson Emanuel Downer (‘Mr
Downer’); Marcos Handal (‘Mr Handal’); Una Pearl Witter (‘Ms Witter’); and Brenda Rose
Francis (‘Ms Francis’), objecting to the modification of the restrictive covenants and
seeking, among other things, an order for demolition of the offending development (‘the
respondents’ claim’).

[3] The Lyns failed in their claim to have the restrictive covenants modified, while the
respondents succeeded in obtaining the demolition order in respect of the offending
development. Aggrieved by that outcome, the Lyns have approached this court in their
bid to have the decision of the Supreme Court set aside. The gravamen of their complaint
is that the decision of the Supreme Court is erroneous as the respondents are not the
beneficiaries of the restrictive covenants affecting the land on which the development is
constructed and so the respondents lack the legal standing to enforce them.
The parties

[4] The Lyns are the registered proprietors of land described as part of Vale Royal in
the parish of Saint Andrew being the Lot numbered Three, Block P on the plan of Vale
Royal deposited in the Office of Titles on 1 November 1927 and comprised in certificate
of title registered at Volume 394 Folio 3 of the Register Book of Titles. It is part of lands
comprised in certificate of title registered at Volume 283 Folio 92 of the Register Book of
Titles and bears the civic address, 18 Upper Montrose Road, Kingston 6 (the Lyns’ land’).

[5] The respondents are owners of neighbouring lands (‘the respondents’ lands’). The
1st and 2nd respondents, Ms Hsia and Mr Hall, are the registered owners of land described
as Lot numbered Nine Block X on the plan of Vale Royal deposited in the Office of Titles
on 1 November 1927 and comprised in certificate of title registered at Volume 331 and
Folio 80 of the Register Book of Titles, being part of the land comprised in certificate of
title registered at Volume 283 Folio 92. Its civic address is 7 Upper Montrose Road,
Kingston 6. (‘the Hsia/Hall land’).

[6] The 3rd respondent, Mr Downer, is the registered proprietor of land described as
part of Vale Royal in the parish of Saint Andrew being the Lot numbered Two Block S on
the plan of Vale Royal deposited in the Office of Titles on 1 November 1927 and being
the land comprised in certificate of title registered at Volume 1141 Folio 151 of the
Register Book of Titles formerly registered at Volume 350 Folio 90. The civic address is 3
Upper Montrose Road, Kingston 6 (‘Mr Downer’s land’).

[7] The 4th respondent, Mr Handal, is the registered proprietor of land described as
Lot numbered Four Block Q on the plan of Vale Royal deposited in the Office of Titles on
1 November 1927 and comprised in certificate of title registered at Volume 1416 Folio
459 of the Register Book of Titles with civic address, 4 Upper Montrose Road, Kingston 6
(‘Mr Handal’s land’). The land was formerly registered at Volume 353 Folio 95.

[8] The 5th respondent, Ms Witter, is the registered proprietor of land described as
part of Vale Royal in the parish of Saint Andrew being Lot numbered One on the plan of
No 5 Upper Montrose Road, deposited in the Office of Titles on 21 June 1979 and
comprised in certificate of title registered at Volume 1155 Folio 636, being part of the
land comprised in certificate of title registered at Volume 353 Folio 66 of the Register
Book of Titles. The civic address is 5A Upper Montrose Road, Kingston 10 (‘Ms Witter’s
land’).

[9] Ms Francis, the 6th respondent, is the registered proprietor of land described as
Lot numbered Eight Block X on the plan of Vale Royal deposited in the Office of Titles on
1 November 1927 and being the land comprised in certificate of title registered at Volume
1304 Folio 981 and formerly at Volume 297 Folio 48 of the Register Book of Titles. The
civic address is 1 South Hopefield Avenue, Kingston 6 (‘Ms Francis’ land’).

The background to the claims and the proceedings in the Supreme Court

[10] In April 2017, the Lyns obtained approval from the Kingston and Saint Andrew
Municipal Corporation (‘KSAMC’) to construct a multiple-residence complex on the Lyns’
land. This approval was subject to the Lyns making an application to the court for
modification of “any relevant restrictive covenants” associated with the land. The Lyns’
land was, indeed, subject to five restrictive covenants. The most relevant ones, for
present purposes, are covenants 2, 4, and 5 (‘the relevant covenants’ or ‘the covenants’).
They read:

“1. …

2. Not to subdivide the said land except in accordance with

the aforesaid plan or in accordance with a plan approved
by the Board under [The Local Improvements Law
1914], in which latter case, none of the lots shall be less
than half an acre in area.

3. …

4. Only one residence shall be erected on any lot of the said

land; such residence together with the buildings
appurtenant thereto shall cost not less than Eight
Hundred Pounds and shall be filled with proper sewer
 installation and no pit closet shall be erected for use on
the said land.

5. No building shall be erected within thirty feet of any road

and ten feet of any other boundary.”

[11] Despite these covenants and the condition laid down by the KSAMC, the Lyns
commenced construction on their land, in August 2017, before making an application to
the court for the modification or discharge of any of the relevant covenants. It was not
until 18 September 2017 that the Lyns filed a fixed date claim form in the Supreme Court
seeking to modify the relevant covenants in these terms:

“2. The land above described shall not be subdivided save

and except into lots for the erection of Townhouses and
or apartments in accordance with the statutory approvals.

4. No building other than Townhouses and or apartments

with the necessary outbuildings appurtenant thereto shall
be erected on the said land and such buildings shall be
used for no other purpose other than for private
residential use.

5. No Townhouse and or apartments house to be erected on

the said land shall be erected at a distance of less than
Twenty Feet from any road boundary thereof and eight
feet of any other boundary save and except that this shall
not apply to the Guardroom, Swimming Pool, Gazebo and
Garbage receptacle.”

[12] On 27 February 2018, Ms Hsia and Mr Hall were served with a notice of the Lyns’
claim. On 7 March 2018, Ms Hsia and Mr Hall filed and served their objection to the
modification of the relevant covenants.

[13] Following the filing of that objection, Ms Hsia and Mr Hall, on 31 July 2018, filed a
fixed date claim form in which they were joined by the other four respondents. The
respondents sought, among other things, a declaration that they are entitled to the
benefit of the relevant covenants and an injunction restraining further construction on
the Lyns’ land until and unless the covenants were modified. On the same date, they also
filed a notice of application for an interim injunction restraining the Lyns from continuing
construction or any form of development on their land until further orders of the court.
On 5 October 2018, the respondents filed an amended fixed date claim form in which
they sought an additional order that the Lyns demolish, forthwith, the structure
constructed on their land in so far as it is in breach of the relevant covenants.

[14] On 14 December 2018, the interim injunction was granted in the terms sought by
the respondents. The chronology of events shows that by then, the development was
almost completed and occupation of it had commenced. There was dispute between the
parties in the court below as to whether construction continued after the interim
injunction was granted. The Lyns have insisted that construction had not continued after
the injunction and sought to establish that to be the true position in this court.

[15] With respect to the two claims, these were heard together (pursuant to an order
of the Supreme Court) by a judge of the Supreme Court (‘the learned judge’), over several
days in July and October 2019. On 21 January 2020, the learned judge delivered her
decision with written reasons outlined in her judgment bearing neutral citation number
[2020] JMSC Civ 5 (‘the judgment’).

[16] The Lyns’ claim failed. The learned judge refused their application for modification
of the restrictive covenants and awarded costs to the respondents.

[17] On the respondents’ claim, which succeeded, the learned judge declared that the
respondents are entitled to the benefit of the relevant covenants. She granted an order
for, among other things, the structure on Lyns’ land to be demolished “in so far as it is in
breach of the restrictive covenants attached to the Lyns’ certificate of title and to convert
the structure into a single dwelling residence with appropriate out buildings in a manner
to conform with the restrictive covenants”. Costs in that claim were also awarded to the
respondents.
The appeal

[18] Aggrieved by the decision of the learned judge, the Lyns filed a notice with grounds
of appeal on 7 February 2020, seeking to have this court: (1) set aside the orders of the
learned judge on both claims; (2) dismiss the respondent’s claim; (3) declare that the
relevant covenants are only enforceable against the original covenantors; and (4) award
the costs of the proceedings in the court below and in this court to them.

[19] However, at the hearing of the appeal, counsel for the Lyns, speaking through Mr
Hylton QC, indicated that the grounds of appeal are limited to the decision of the learned
judge on the respondent’s claim. Queen’s Counsel advised that the Lyns would not pursue
the appeal from the learned judge’s decision on their claim. Therefore, no arguments
were advanced in support of that aspect of the appeal. On that basis, the appeal from
the Lyns’ claim would have to be dismissed given no formal notice of withdrawal was
filed. Consequently, the correctness of the learned judge’s decision on the Lyns’ claim
does not fall for this court’s determination.

[20] Concerning the appeal from the decision on the respondents’ claim, the Lyns have
advanced eight grounds of appeal. It is not necessary to set out the grounds for present
purposes. It suffices to say, as counsel on both sides have agreed, that the eight grounds
of appeal are sufficiently encapsulated in two broad issues, which, essentially, are:

(i) whether the learned judge erred in finding that the respondents
are entitled to the benefit of the relevant covenants and could
lawfully enforce them (grounds a. – e.); and

(ii) whether the learned judge incorrectly exercised her discretion in

ordering the demolition of the structure on the Lyns’ land (grounds
f. – h.).
Issue (i) – Whether the learned judge erred in finding that the respondents
are entitled to the benefit of the relevant covenants and could lawfully enforce
them (grounds a. – e.)

[21] It is undisputed that none of the parties had personally entered into covenants
with the original vendor of their lands. The Lyns were not the first transferee or original
covenantor with respect to the relevant covenants. The same applies to the respondents
who are not standing in the position of original covenantees. The respondents are,
nevertheless, claiming the benefit of the relevant covenants affecting the Lyns’ land.

[22] For the benefit of restrictive covenants to run at law, three fundamental things
must be present: (1) the covenants must directly affect the land of the covenantor by
controlling its user; (2) the observance of the covenants must directly benefit the land of
the covenantee; and (3) the original contracting parties must have intended that they
shall run with the land of the covenantee at the date of the covenant. The absence of
any of these three things would, invariably, lead to a finding that the covenants are
personal and so would not be enforceable by or against third parties.

[23] With regard to the transmission in equity of the benefit of the restrictive covenants
to a successor in title, it is necessary that not only must the covenants touch and concern
or benefit some dominant land, but also that the benefit was either: (a) effectively
annexed to the covenantee’s land; (b) expressly assigned to the successor in title of the
covenantee’s land; or (c) has become enforceable by reason of the presence of a building
scheme or a scheme of development (‘scheme’).

[24] It seems apposite to say from the very outset, that there is no evidence and,
indeed, no assertion by the respondents of express annexation of the relevant covenants
to their land or express assignment of the covenants to them as successors in title of the
original covenantees. The parties have agreed that the primary issue is whether the Lyns’
land and the respondents’ lands are part of a scheme. If they are, then the respondents
would be entitled to the benefit of the relevant covenants and able to lawfully enforce
them.
Is there a scheme?

[25] In determining whether the respondents are entitled to the benefit of the relevant
covenants, the learned judge principally found and concluded that:

(1) It is clear there is no dispute between the parties that the

restrictive covenants are negative in nature (para. [37] of the
judgment).

(2) The registered titles do not indicate that the relevant covenants
are for the protection of land retained by the original covenantor
(para. [38] of the judgment).

(3) The relevant covenants are not in place for the protection of
retained land but rather for the protection of lots created in the
subdivision (para. [39] of the judgment).

(4) The respondents are entitled to the benefit of the relevant

covenants because “a building scheme/development was created
with reciprocal obligations in 1927 when the plan generating the
subdivision was deposited” and thus the obligations created
“passed to successors in title and are not personal to the original
covenantor, but enforceable by the lot holders inter se” (para. [47]
of the judgment.

[26] The legal position is that there is no inflexible insistence on formal words by which
covenants should be imposed within a scheme. The creation of a scheme of reciprocal
rights and obligations is a matter of intention that can be manifested in different ways.
As such, a scheme can be created by different devices. There are those devices by which
covenants are created in an express manner with the intention clearly and expressly spelt
out in the wording of the conveyance or other relevant documents. However, even if not
expressed, the creation of mutual covenants sufficient to ground a scheme, can be
implied from conveyancing documents as well as from extrinsic evidence thrown up in
the surrounding circumstances (see Preston & Newsom, Restrictive Covenants Affecting
Freehold Land, 7th edn, page 48).

[27] The requirements for establishing a scheme were given full judicial consideration
and explanation by Parker J in Elliston v Reacher [1908] 2 Ch 374 whose decision was
affirmed on appeal in the judgment reported at [1908] 2 Ch 665. At page 384, his
Lordship identified four requirements that must be fulfilled before it can be said that a
scheme exists. They are enumerated and summarised to be as follows:

(1) The parties must have derived title under a common vendor;

(2) Prior to selling the lands to which the parties are entitled the
vendor laid out his estate for sale in lots subject to restrictions
intended to be imposed on all the lots, or a defined portion thereof
(including the lands purchased by the parties). The restrictions,
though varying in details as to particular lots, are consistent and
consistent only with some general scheme;

(3) The restrictions were intended by the common vendor to be and

were for the benefit of all the lots intended to be sold, whether or
not they were also intended to be and were for the benefit of other
land retained by the vendor; and

(4) The parties or their predecessors in title purchased their lots from
the common vendor upon the footing that the restrictions subject
to which the purchases were made, were to enure for the benefit
of the other lots included in the general scheme whether or not
they were also to enure for the benefit of other lands retained by
the vendors.

[28] Parker J further noted that once the first three elements are established, the fourth
may be readily inferred, provided the purchasers had notice of the facts involved in the
first three elements. However, according to his Lordship, “if the purchaser purchases in
ignorance of any material part of those facts, it would be difficult, if not impossible, to
establish the fourth point” (see page 385 of the report). The common vendor’s object in
imposing the restrictions, his Lordship said, must be gathered from all the circumstances
of the case, including the particular nature of the restrictions.

[29] In keeping with Parker J’s formulation, if these four requirements are satisfied, the
respondents would be entitled to enforce the restrictive covenants entered into with the
common vendor by the Lyns’ predecessors in title “irrespective of the dates of the
respective purchases”.

[30] It should be noted, however, that Elliston v Reacher is now viewed by some
writers as the ‘original approach’ to the question of whether a scheme of development
exists. Professor Gilbert Kodilinye in his helpful text, Commonwealth Caribbean Property
Law, 2nd edition, page 168, for his part, explains it thus:

“Although the requirements in Elliston v Reacher are still

considered to be a valuable guide as to the existence or
otherwise of a building scheme, there are cases in which
schemes of development have been held to exist despite the
absence of one or more of these requirements.”

[31] What is now viewed as the “modern and less stringent approach” stresses the
existence of only two pre-conditions which, once fulfilled, would satisfy the establishment
of a scheme of development, regardless of whether the other two Elliston v Reacher
conditions are fulfilled (see Baxter v Four Oaks Properties Ltd [1965] 1 All ER 906
and Re Dolphin’s Conveyance, Birmingham Corporation v Boden and others
[1970] Ch 654) (‘Re Dolphin’s Conveyance’). These two pre-conditions were
established by Cozens-Hardy MR and Buckley LJ in Reid v Bickerstaff [1909] 2 Ch 305
and approved by the Privy Council in Jamaica Mutual Life Assurance Society v
Hillsborough Limited and others [1989] 1 WLR 1101 (‘Jamaica Mutual Life v
Hillsborough’).
[32] In delivering the opinion of the Board, Lord Jauncey in Jamaica Mutual Life v
Hillsborough, at pages 1106 – 1107, noted that:

“It is now well established that there are two perquisites of a

building scheme namely: (1) the identification of the land to
which the scheme relates, and (2) an acceptance by each
purchaser of part of the lands from the common vendor that
the benefit of the covenants into which he has entered will
enure to the vendor and to others deriving title from him and
that he correspondingly will enjoy the benefit of covenants
entered into by other purchasers of part of the land.
Reciprocity of obligations between purchasers of different
plots is essential.”

[33] Accordingly, in keeping with the modern and less stringent approach embraced by
the Privy Council in Jamaica Mutual Life v Hillsborough, there are two essential
requirements for proving the establishment of a scheme:

(1) identification of a defined area of land to which the scheme

relates; and

(2) evidence that each purchaser of a part of the lands from the
common vendor purchased his land with the knowledge that the
benefit of the covenants into which he has entered will enure to
the vendor and to others deriving title from him and that he,
correspondingly, will enjoy the benefit of the covenants entered
into by other purchasers of part of the land.

[34] The Lyns did not seek to challenge the learned judge’s findings that there is a
defined area of land to which the scheme relates. They have accepted that the learned
judge had sufficient evidence of the boundaries of the area, and thus it was open to her
to have found that there was a certain or ascertainable geographical area satisfying the
first requirement for the establishment of a scheme. It is important to note, however,
that this requirement is not completely satisfied only by what the vendor has done in
defining the area. The Privy Council case of Emile Elias and Co Ltd v Pine Groves Ltd
[1993] 1 WLR 305 (‘Emile Elias v Pine Groves’) is instructive in this regard. Citing the
dictum of Cozens-Hardy MR in Reid v Bickerstaff, concerning this requirement for there
to be a defined area, their Lordships opined that it is not sufficient that the common
vendor has himself defined the area within which the scheme is operative. According to
their Lordships, for there to be the creation of a valid scheme, the purchasers of all the
land within the area of the scheme must also know what that area is. There is no issue
joined between the parties, in this case, as to whether all the purchasers of the Vale
Royal subdivision knew what that area was at the time of purchase.

[35] What has generated debate between the parties is the satisfaction of the second
requirement regarding the purchasers’ knowledge and intention as it relates to the
reciprocity of the burden and benefit of the covenants at the time of purchase from the
common vendor.

[36] An attempt will be made to fully dispose of the several specific issues in dispute
between the parties within the context of determining whether the second requirement
has been satisfied. Each specific issue is examined below against the background of the
evidence, the relevant law, and the submissions of the parties.

(i) Whether the restrictive covenants affecting the lands must be the same

[37] In para. [44] of the judgment, the learned judge stated:

“[44] What is clear from this is, that the relevant lands all
come from the same parent title and from a common vendor
and are part of the Vale Royal Lands which was subdivided
into lots by a plan that was deposited in the Office of Titles
on the same day – November 1, 1927. The lots were
subject to the same three restrictive covenants under
consideration which… were for the benefit of all the lots in
the subdivision.” (Emphasis added)

[38] Mr Hylton contended that the learned judge erred by concluding that the lots were
subject to the same restrictive covenants. He argued that the learned judge fell into error
because she incorrectly proceeded on the basis that the respondents needed only to show
that their certificates of title and the Lyns’ certificate of title had similar restrictive
covenants. All the lots in the defined area, Queen’s Counsel argued, must be subject to
the same restrictive covenants in order to satisfy a finding that there is a scheme.

[39] Queen’s Counsel noted, in this regard, that the area which the learned judge found
to be a scheme, consisted of 129 lots. Therefore, if one is maintaining that there is a
scheme comprising 129 lots, it must be proved that there is reciprocity of obligation and
benefit with all 129 lots. This, he said, would require the respondents to produce the
certificates of title for all 129 lots instead of the seven they had produced. Mr Hylton
further argued that even on an analysis of the seven certificates of title that were before
the learned judge, a finding that there was reciprocity of obligation and benefit could not
be supported.

[40] In considering Mr Hylton’s submission that all 129 titles that form part of the
original subdivision of Vale Royal needed to be produced, it is noted that he cited no
authority in support of his argument. In the absence of any authority, to this effect,
brought to the attention of the court, I would be reluctant to lay down any rule or principle
that all certificates of title within an alleged scheme must be produced. Accordingly, I am
not prepared to disturb the learned judge’s decision on the basis that she was not
provided with all 129 titles for the Vale Royal subdivision.

[41] Regarding Mr Hylton’s complaint that the covenants must be the same, what the
learned judge said is that “[t]he lots were subject to the same three restrictive covenants
under consideration”. I understand her to be saying that the three covenants for which
the Lyns had sought modification were the same on all the certificates of title for the
relevant lots. She did not say, as contended by Mr Hylton, that all the restrictive covenants
on the certificates of title are the same. However, I do find that the learned judge was
incorrect in saying that the relevant covenants are the same. There are differences among
them as pointed out by Mr Hylton, even though, in essence and effect, they are
substantially geared at addressing the same matters and imposing similar restrictions
regarding subdivision and residential density. Therefore, at highest, they would, for the
most part, have been similar rather than “the same”.

[42] In any event, the absence of identical restrictive covenants affecting all the lots is
not fatal to the establishment of a scheme. As Cozens-Hardy MR stated in Reid v
Bickerstaff, although the obligations to be imposed within the area must be defined,
“those obligations need not be identical”. In Lamb v Midac Equipment (Jamaica)
Limited [1999] UKPC 4 (‘Lamb v Midac’), Lord Nicholls, similarly, observed that:

“The essence of a scheme of development is reciprocity of

obligation and benefit: each purchaser from the common
vendor was intended to be subject to similar obligations,
and each was intended to have the benefit of the obligations
entered into by his fellow purchasers. This is now well
established law: see, for instance, Reid v. Bickerstaff [1909]
2 CH 305. The existence of this intended reciprocity is a
matter for proof by evidence, having regard to the
circumstances of each case. Proof, as here, of the division of
land by a common vendor into several lots, and the taking
of similar covenants from each purchaser, goes some way
towards the desired goal. By itself, however, this evidence is
insufficient.” (Emphasis added)

[43] Additionally, in White v Bijou Mansions Ltd [1938] Ch 351, at page 362, Greene
MR opined that there must be “some common regulations intended to apply to the whole
of the estate in the development” but he stated that he would “not exclude the possibility
that the regulations may differ in different parts of the estate or that they may be subject
to relaxation”.

[44] Accordingly, there is no requirement that all the lots in a scheme must be subject
to the same or identical restrictive covenants in order to find that there was an intention
to impose a scheme of reciprocal obligations and benefits. In the instant case, there are
“some common regulations” or “similar covenants” imposing restrictions on the parties’
lands, especially regarding subdivision and housing density. Therefore, I do not find the
differences in the specific wording of some of the restrictive covenants, noted by Mr
Hylton, to be detrimental to the respondents’ case that a scheme existed.
 (ii) Whether there was a common vendor

[45] The learned judge noted at para. [16] of the judgment that:

“[16] The evidence in this matter discloses that originally the

lands from which the [appellants’] and the [respondents’]
lands derive, was a plantation that was sub-divided in the
1920’s into large tracts of land and eventually further sub-
divided into half acre lots. All the lands in the locale where the
relevant lots are located came from a parent title registered
at Volume 283 Folio 92 of the Register Book of Titles and were
cut off from the parent title with covenants encumbered on
the title regarding, among other things, the type of residence
allowed on the land.”

[46] She further noted that the respondents at trial had traced the history of the parties’
lands to successfully establish the requirement that there was a common vendor. The
learned judge had regard to that history in para. [27] of the judgment. The evidence
shows that the property that was subdivided was first registered to Charles Costa (‘Mr
Costa’) and John Henry Cargill (‘Mr Cargill’) on 1 November 1927 in certificate of title
registered at Volume 283 Folio 92 (‘the parent title’). The parent title had five restrictive
covenants endorsed on it which are more or less the same as those endorsed on the
certificates of title for all the respondents except Ms Witter. There is no evidence or
indication on the parent title as to how, by whom and by what means those restrictive
covenants came to be endorsed on it.

[47] Mr Costa died in 1940 and Harold Herbert Dunn (‘Mr Dunn’) became registered
joint tenant with Mr Cargill. There was, therefore, a change in ownership of the lands in
the subdivision after 1940. The parent title shows that between 1933 and 1950, splinter
titles were issued from it. There is no evidence or indication that any purchaser had taken
any covenant with any vendor at the time the restrictive covenants were imposed on the
splinter titles.

[48] The Lyns’ certificate of title is a splinter title. It shows Thelma Morin (‘Ms Morin’)
to be their first predecessor in title, having been registered as proprietor in April 1942.
Given, the contents of the parent title for the Vale Royal subdivision, the death of Mr
Costa in 1940, and Ms Morin’s registration as owner in 1942, it means the Lyns’ land
would have had to be transferred from Mr Dunn and Mr Cargill as vendors to Ms Morin
as purchaser. This is an inference that is drawn because the original contract of sale and
instrument of transfer in relation to Ms Morin were not adduced in evidence.

[49] As it relates to the respondents’ land:

(a) Ms Hsia and Mr Hall became the owner of their land (Volume 331
Folio 80) in August 2015 after a series of successive transfers. Their
first predecessor in title was Gertrude Rose Hart to whom the
certificate of title was issued in February 1938. Again, no contract
of sale or transfer documents have been adduced to show from
whom the property was purchased. It seems safe to infer,
however, that the vendors would have been Mr Costa and Mr
Cargill. They would not have been the same as the vendor of the
Lyns’ land. So even though the Hsia/Hall and Lyns’ lands were from
the same plan and parent title, technically speaking, the vendors
would not have been the same.

(b) Concerning Mr Downer’s land (Volume 1141 Folio 151), it was

registered in August 1977 in Mr Downer’s sole name with no
indication of the previous owner. It states, however, that it formed
part of the same plan of Vale Royal deposited in the Titles Office in
1927, but it was formerly comprised in certificate of title registered
at Volume 350 Folio 90. This title is reflected on the parent title
from which the Lyns’ land was cut off and shows a registration date
in 1939 to Mr Gilbert Russell Laing, who appears to be the first
predecessor in title. Therefore, it may be inferred that Mr Downer’s
predecessor in title would have also purchased his land from the
original owners, Mr Costa and Mr Cargill, even though there is no
 indication from whom Mr Downer had bought his land. Again, his
vendor was not shown to be the same vendor of the Lyns’ land.

(c) Mr Handal’s land (Volume 1416 Folio 459) also formed part of the
same plan of Vale Royal deposited in the Titles Office in 1927. Mr
Handal became the owner on 7 December 2007. His land was said
to have been lands formerly comprised in certificate of title
registered at Volume 353 Folio 95. There is no evidence as to the
identity of the vendor but even more importantly, there is no record
of this title number on the parent title (even though a portion of
the title is illegible). In short, no effort was made by the
respondents to connect his certificate of title to the parent title.
Consequently, in the absence of evidence, it cannot be said
definitively that Mr Handal’s predecessors in title had bought their
land from the same vendor as the Lyns’ original predecessor in title.
This is a gap in the respondents’ evidence regarding the alleged
purchase of all the lands from a common vendor.

(d) Ms Witter’s land (Volume 1155 Folio 636) is shown to have been
part of the plan deposited in 1927, albeit the lot was shown on a
plan deposited on 21 June 1979. It is clear, however, from an
examination of the parent title that Ms Witter’s original predecessor
in title, Mr Victor Gray Williams, was registered as owner in October
1939. Therefore, the inference to be drawn is that the vendor of
her land would have been the same as the vendor of the Hsia/Hall
and Mr Downer’s lands. It would not have been the same as the
vendor of the Lyns’ land.

(e) Finally, the certificate of title for Ms Francis’ land (Volume 1304
Folio 981) shows that the land also formed part of the plan
deposited in 1927. The certificate of title in evidence is dated 5
 February 1998, although it is endorsed with mortgages that
predated the date of issue. However, the land is described as being
formerly comprised in certificate of title registered at Volume 297
Folio 48. An examination of the parent title does not reveal this
certificate of title as a splinter title and there is no evidence
adduced to establish the original splinter title from which Ms
Francis’ title would have evolved. Given this evidential deficiency,
there is no evidence of the date of first purchase and the vendor
from whom the land was purchased. The respondents have not
brought evidence to fill this lacuna. So in the end, there is no nexus
shown on the evidence between the title for Ms Francis’ land and
the parent title from which it can be inferred that Ms Francis’ land
was purchased from the same vendor of the Lyns’ land.

[50] The foregoing trace of the history of the lands shows that the learned judge was
not correct to find that “[the] description of the lands is the same on all the title [sic] of
the [respondents], save for the lot number” (para. [43] of the judgment). She was also
not accurate in her finding that “the relevant lands all come from the same parent title
and from a common vendor” (para. [44] of the judgment). The evidence did not support
those findings, on a balance of the probabilities, because there were unexplained or
unresolved gaps in the evidence regarding the history of ownership and devolution of all
the lots in question to the parties. Therefore, the learned judge would have had no proven
fact from which she could have properly drawn the inference that all the lands of the
parties were derived from a common vendor.

[51] Accordingly, the respondents who have raised the issue that they are entitled to
the benefits of the relevant covenants by virtue of a scheme would have failed on this
limb. Once there is no common vendor, there cannot be a scheme.

[52] In any event, even if I am wrong, and there was, indeed, a common vendor, the
cases have made it clear that the mere fact that land is divided into lots and sold by a
common vendor with similar covenants is not conclusive that a scheme exists. As Cozens-
Hardy MR said in Reid v Bickerstaff at page 319:

“A building scheme is not created by the mere fact that the

owner of an estate sells it in lots and takes varying covenants
from various purchasers.”

So too, in Lamb v Midac, Lord Nicholls noted that:

“Proof, as here, of the division of land by a common vendor

into several lots, and the taking of similar covenants from
each purchaser, goes some way towards the desired goal. By
itself, however, this evidence is insufficient.” (Emphasis
added)

[53] Therefore, though the learned judge found that the Lyns’ land and the
respondents’ lands were bought from a common vendor and that the same relevant
covenants were imposed on each lot, she had to go further, as she did, to examine
whether there was evidence of an intention to create a scheme of reciprocal obligation
and benefit. I will now do the same.

(iii) Whether the common vendor had an intention to establish a scheme

[54] The intention of the common vendor to establish a scheme of reciprocal benefit
and obligation is the third Elliston v Reacher requirement. Under the modern approach,
however, it seems the absence of this requirement is not fatal to the establishment of a
scheme. Regarding the requisite intention of the common vendor, Parker J in Elliston v
Reacher, at page 384, opined:

“…the vendor's object in imposing the restrictions must in

general be gathered from all the circumstances of the case,
including in particular the nature of the restrictions. If a
general observance of the restrictions is in fact calculated to
enhance the values of the several lots offered for sale, it is an
easy inference that the vendor intended the restrictions to be
for the benefit of all the lots, even though he might retain
other land the value of which might be similarly enhanced…”
[55] Inspired by the reasoning of Parker J in Elliston v Reacher, counsel for the
respondent, through Mr Leiba, maintained that an intention to create reciprocity or
mutuality of obligation and benefit can properly be inferred from common restrictive
covenants. Counsel relied on the nature and wording of the relevant covenants to rebut
the assertion of counsel for the Lyns that the only evidence as to the vendor’s intention
is that of the Lyns’ expert that the covenants were imposed to satisfy conditions of
approval. According to Mr Leiba, there was no evidence in the court below that the
common vendor owned neighbouring lands, which the restrictive obligations could be
said to protect, and none was adduced by the Lyns. The learned judge also concluded
that there was no evidence that any land was retained by the common vendor for which
the covenants were intended and so they must have been intended for the benefit of all
the lands being sold.

[56] The authorities have posited that the best evidence of what was intended would
naturally come from the common vendor himself who, if available, could be called to give
evidence of his intention or persons closely involved with the transactions at the time of
sale could also furnish it. In this case, there is no such evidence available as the first sale
of the lots was done approximately 90 years ago. Indeed, there is no clear indication of
who the vendors were in respect of some of the relevant lands at the various times they
were sold to the parties over the years up to 2007. The contracts of sale and instruments
of transfer relative to the lots have not been produced. There is no evidence of
advertisement of the lots. In short, neither side had produced any evidence before the
learned judge that could point to the direct intention of the common vendor or any vendor
(for that matter) when the lots were being sold.

[57] Therefore, any conclusion of the likely intent of a common vendor would have had
to be derived from reasonable inferences drawn from an examination of all the available
documentary evidence and all the surrounding circumstances disclosed on the evidence
that was before the learned judge. Unfortunately, all before the learned judge, of some
materiality to the case, were: (a) the deposit plan of 1927 for the Vale Royal subdivision
that had no covenants or conditions endorsed on it; (b) the parent title for the Vale Royal
subdivision with (what appears to be) five restrictive covenants endorsed on (which were
not identical to those on the splinter titles); and (c) the certificates of titles for the parties’
lands with similar restrictive covenants and the transfers to the relevant proprietor
endorsed on each of them. There is nothing indicative in these documents of the intention
of a common vendor to create a reciprocal scheme of benefit and burden, which was to
bind original covenantors and their successors for the benefit of original covenantees and
their successors.

[58] In Re Dolphin’s Conveyance, Stamp J helpfully reiterated that (page 661 of the
report):

“It is trite law that if you find conveyances of the several parts
of an estate all containing the same or similar restrictive
covenants with the vendor, that is not enough to impute an
intention on the part of that vendor that the restrictions
should be for the common benefit of the vendor and of the
several purchasers inter se: for it is at least likely that he
imposed them for the benefit of himself and of the unsold part
of the estate alone.”

[59] The learned judge had concluded that she was satisfied that the vendor did not
retain any land for himself for which the benefit was intended. The evidence from which
the learned judge would have made such a finding is not readily apparent in the absence
of evidence illustrating what had occurred on or around the time of partition and sale of
lots in the subdivision between 1933 and 1950 (final transfer on the parent title). The
fact that there was a change of ownership of the subdivision upon the death of one of
the first joint owners in 1940 shows that lots must have been retained even after 1940
up to, at least, 1942 when Mrs Morin, the Lyns’ predecessor in title, was registered as
the owner of the Lyns’ land. Also, the parent title shows that up to 1950, eight years after
the transfer to Mrs Morin, lots were still being cut off from the subdivision and the parent
title splintered. Therefore, it cannot be said, with any degree of conviction, that at the
time the covenants were imposed on any of the parties’ lands, there was no land retained
by the vendor. This, therefore, could not have been a proper foundation on which to base
a conclusion that the common vendor intended to benefit only the lands he was selling
and no land retained by him. It must be admitted, however, that even if the common
vendor intended to benefit land retained by him, a scheme could still have been intended
provided he also intended for the covenants to benefit the other lots sold by him. The
endorsements on the exhibited certificates of title, standing alone, have not unequivocally
established the intention of the vendor, one way or the other.

[60] In any event, even if it is accepted that the intention of the common vendor to
establish a community of reciprocal obligation and benefit was sufficiently proved by the
respondents, the learned judge would still have had to go further with her analysis; and,
again, she correctly did so. She had regard to the second most important requirement
regarding the knowledge and intention of the purchasers of the lots in the subdivision at
the time of partition for sale. Accordingly, the remaining question is whether she erred
in her conclusion regarding this final requirement.

(iv) The knowledge and intention of the purchasers inter se

[61] Following the lead of the Privy Council in Jamaica Mutual Life v Hillsborough,
and the cases cited in it, there must also be evidence that at the time of partition of the
defined area for sale, there was:

“an acceptance by each purchaser of part of the lands from

the common vendor that the benefit of the covenants into
which he has entered will enure to the vendor and to others
deriving title from him and that he correspondingly will enjoy
the benefit of covenants entered into by other purchasers of
part of the land.”

[62] With respect to whether there was evidence of an intention or acceptance by each
purchaser to be part of the alleged scheme, Mr Hylton relied on the cases of Jamaica
Mutual Life v Hillsborough, Lamb v Midac and Hugh Small v Oliver & Saunders
(Development) Ltd [2006] EWHC 1293 (Ch) (‘Hugh Small v Oliver & Saunders’) in
support of his arguments. He submitted that direct evidence must be adduced to show
that the original purchasers of the lots had accepted that they had an obligation
enforceable not only by the vendor but those deriving title from the vendor and that each
purchaser knew that purchasers of the other lots had entered into, or would enter into,
similar covenants. Mr Hylton submitted that in the absence of such evidence, there is a
lack of material from which an intended reciprocity of obligation and benefit among all
purchasers can be inferred. Queen’s Counsel maintained that a scheme will not be implied
merely from the existence of a common vendor and common covenants.

[63] Mr Hylton argued further that the learned judge was plainly wrong to conclude, as
she did at para. [44] of the judgment, that by virtue of the endorsements of the covenants
on the certificates of title, “the original purchasers had notice of the covenants and, ipso
facto, took subject to them and intended to be bound by them”. He submitted that on
the evidence that was before her, the learned judge ought to have found that the
respondents had failed to prove that all the purchasers of lots in the scheme intended to
be bound by a scheme of mutual obligation for the benefit of all purchasers.

[64] Pointing to paras. [38], [39], [42], [45] and [46] of the judgment, Mr Leiba
submitted, in response, that the learned judge correctly had regard to the language of
the relevant covenants, which are consistent with the existence of reciprocal restrictions
intended to benefit and burden the lots within the scheme. He argued that Jamaica
Mutual Life v Hillsborough could not be used to support the contention of the Lyns as
an examination of the parent title in the instant case reveals that instruments of transfer
for each and every parcel of land from it contained restrictions. He argued that these
restrictions were clearly for the benefit of all the lots and that the Lyns purchased their
land with full knowledge of these restrictions.

[65] Counsel also argued that the facts of Lamb v Midac could not aid the Lyns as
there is no language on the material in this case from which it may be inferred that the
restrictions were imposed for the common vendor’s own benefit. Mr Leiba also submitted
that the Lyns’ reliance on Hugh Small v Oliver & Saunders is misplaced because the
case is distinguishable.
[66] There is no direct evidence of execution of deeds of covenants pointing to express
undertakings of mutual rights and obligations (a) between the original common vendor
and any person from whom he obtained title; (b) between the common vendor and the
original purchasers; and (c) the purchasers among themselves. Additionally, as already
found, there was no formal instrument of transfer or other conveyancing documents
adduced in evidence illustrating the terms of the transfers of the lots in question to the
original and successive purchasers. The notations on the parent title of the various
splinter titles show that conditions were attached to each transfer. However, if the
purchasers were to have examined the parent title, the terms of the conditions are not
detailed on the parent title for every purchaser to see what is contained in each
instrument of transfer for all the lands. The most they would have been able to see from
the plan is that each transfer to purchasers before them was done by the vendor, subject
to conditions. There was nothing to show at the time, what the exact terms of the
conditions were and that future purchasers would be subject to the same or similar
conditions.

[67] However, although direct evidence would have been ideal, its absence is not fatal
to the finding of a scheme of development. It is well settled that in the absence of such
proof, the court may look at extrinsic evidence and the circumstances surrounding the
original purchases (see Jamaica Mutual Life v Hillsborough). Additionally, it was
stated in Elliston v Reacher that if it is found that the certificates of title were derived
under a common vendor and that it was the intention of the common vendor to create a
scheme of mutual obligations and benefits, then once the original purchasers had notice
of these facts at the time of purchase, it may be inferred that the purchasers bought the
lots on the common footing that they would be mutually bound by the covenants as well
as mutually entitled to enforce them.

[68] The learned judge did not express a finding that there is evidence to prove that at
the time of purchase by the parties’ predecessors in title, they knew that they were buying
from a common vendor who had the intention to create a scheme of mutual obligation
and benefit. On the strength of the authorities, it is knowledge and acceptance of these
facts, and not simply the notification of covenants on each title, which may properly give
rise to the inference of acceptance by all the purchasers from a common vendor of mutual
burden and benefit and their acceptance to be mutually bound.

[69] Instead of making a finding on the matters above, the learned judge concluded
that there was knowledge on the part of the purchasers and “reciprocity of obligation
when the covenants were endorsed on the title”. In arriving at that conclusion, the
learned judge had regard to what she stated was the wording of the covenant concerning
the number of residences permitted on the lands (paras. [45] and [46] of the judgment).
At para. [45], she noted that the covenant states:

“Only one residence shall be erected on any lot of the said

land and such residence together with the buildings
appurtenant thereto shall cost not be less than eight hundred
pounds and shall be fitted with proper sewer installation and
no pit closet shall be erected for use on the said land.”
(Emphasis added)

Then, at para. [46], she observed:

“The wording of this covenant is similar in all the titles of the

[respondents] and the [Lyns]. The use of the words ‘on any
lot of the said land’, to my mind denotes that the framers
of the covenant intended all the lot owners to observe this
covenant for their mutual benefit, namely to create a
homogeneous community with similar housing infrastructure.
This homogeneity could only be maintained if all owners
honoured this obligation reciprocally.” (Emphasis added)

[70] Regrettably, I cannot entirely agree with the analysis and findings of the learned
judge on this issue. Firstly, the learned judge’s analysis points to a finding of what the
‘framers’ of the covenant intended. Although she has not expressly stated to whom she
is referring as the ‘framers’, this is not taken to mean the purchasers in the subdivision
because the purchasers would not have framed the covenants. There is nothing to
indicate that any of the purchasers were involved in the drafting of them. Restrictive
covenants were already endorsed on the parent title before the lots were sold to the
parties or their predecessors in title and the covenant regarding housing density was not
endorsed on the parent title (understandably so). It must have been the original vendor
of lots in the subdivision in 1933 who had imposed the relevant covenant regarding
housing density. There is no evidence of the input of any purchaser regarding the
imposition of the covenants.

[71] Therefore, from the reasoning of the learned judge, it may be safely argued that
she rested her conclusion on what the “framers” of the covenant desired - “a
homogeneous community with similar housing infrastructure” and that “the homogeneity
could only be maintained if all the owners honoured this obligation reciprocally”. This
reasoning has only taken into the account the desire of the vendor and the need for the
purchasers to honour the obligations imposed by the vendor arising from that desire.
There is no account taken of the need for there to be acceptance by the purchasers of
the obligation and benefit as among themselves. The intention or desire of the vendor is
not enough. Therefore, the finding regarding the desires of the framers of the covenant
and the need of the purchasers to uphold the vendor’s desire for homogeneity would not
have been sufficient to ground the necessary element of reciprocity that is required for
the establishment of a scheme.

[72] Secondly, the wording of the covenant that the learned judge cited in para. [46]
of the judgment was not similar in all the respondents’ certificates of title. It suffices to
say at this juncture that the words “any lot of the said land” is found in all the respondents’
certificates of title except Ms Witter’s. It is either covenant 4 or 5 in those certificates of
title.

[73] The wording of that covenant unequivocally means any lot of the land comprised
and described in the particular certificate of title to which the covenant applies. This is
clear from the wording of covenant 1 of the certificates of title of five of the respondents.
On each of the five certificates of title, covenant 1 starts either with the wording “not to
erect on the land above described…” or “not to erect on the land above described
(hereinafter called ‘the said land’)…”. Thereafter, reference is made throughout the
restrictive covenants to “the said land”. So, where the words, “the said land” appear in
those certificates of title, they mean the same land described in the preceding section of
the certificate of title. The wording cannot be stretched to mean any other land in the
Vale Royal subdivision, which would include the land of any other party in this case.

[74] Similarly, the certificates of title for the Lyns’ and Ms Francis’ lands refer to “the
said land” in covenant 1, but unlike the preceding five certificates of title noted above,
there is no express indication in brackets that “the land above described” will thereafter
be referred to as the “said land”. However, the certificate of title for each lot (as in the
case of all the others exhibited), clearly shows that “the said land” is the land described
in the particular certificate of title and to no other land in the larger subdivision of which
the land forms a part. So, as in the preceding five certificates of title, there is no cross-
referencing to any other land in the subdivision or, more specifically, any land of the
parties to the claim.

[75] A second reason the meaning of the phrase “any lot of the said land” cannot be
taken as referring to any lot in the Vale Royal subdivision is the wording of covenant 2
on six of the relevant certificates of titles, including the Lyns’. As already indicated (but
which I find it necessary to repeat), covenant 2 on the certificates of title for all the lots,
except Ms Witter’s, reads:

“2. Not to subdivide the said land except in accordance

with the aforesaid plan or in accordance with a plan
approved by the Board … in which latter case, none of
the lots shall be less than half an acre in area.” (Emphasis
added)

[76] The emphasised portions above clearly show that the covenant does not preclude
subdivision of the relevant land but indicates how the subdivision must be done and if
done, the size of the divided lots should not be less than half an acre. Therefore, the
covenant treating with housing density has taken into account the possibility of
subdivision of the lots to which it applies. This would mean that the land comprised in
the particular certificate of title (which is the land being referred to and no other) can
have more than one lot if subdivision approval is granted in the manner allowed by
covenant 2. The covenant highlighted by the learned judge, therefore, means if the land
is subdivided, in accordance with covenant 2, only one residence must be on each divided
lot. It follows too that if no subdivision is granted, only one residence must be on the
undivided lot.

[77] There is no similar covenant endorsed on Ms Witter’s land that refers to “any lot
on the said land” affecting that land. Covenant 3 on the certificate of title for that land
simply states: “[t]he said land shall not be subdivided”. This unquestionably shows that
reference to “any lot on the said land” in the other parties’ certificates of title, is in relation
to their lands that could be subdivided and not Ms Witter’s land. Ms Witter’s land, itself,
was the result of the subdivision of another lot shown on the parent title.

[78] Accordingly, the reference to “any other lot”, in five of the respondents’ titles as
well as the Lyns’ title, does not convey any notion of the reciprocity of obligation and
benefit on the part of the purchasers, as among themselves, which is essential for the
establishment of a scheme. In my view, nothing of value or materiality for the resolution
of the dispute between the parties turns on the wording of the covenant emphasised by
the learned judge. In short, the covenant does not import the requisite acceptance of
reciprocity, among the purchasers inter se, needed for the creation of a scheme.

[79] In considering the contention of the respondents that there is enough evidence
from which the reciprocity of obligation and benefit may be properly inferred, I have
taken guidance, once again, from Jamaica Mutual life v Hillsborough and Lamb v
Midac. It seems useful, at this point, to provide a brief insight into the reasoning of the
Privy Council in Jamaica Mutual Life and Hillsborough to more fully demonstrate the
nature of the evidence required to establish this second crucial requirement. For
expediency, the succinct and accurate summary of the facts of this case is adopted, with
slight modification, from Professor Gilbert Kodilinye in Commonwealth Caribbean Property
Law at page 169.
[80] In that case, the applicant’s and the first and second objectors’ predecessors in
title had purchased their lands from common vendors. The lands were encumbered with
restrictive covenants not to divide the land into lots of less than one acre each and not
to carry on trade or business on it. The instruments of transfers did not annex the benefit
of the covenants to any land retained by the common vendors, nor was there any
subsequent assignment of the benefit of the covenants to any of the objectors’
predecessors in title. The third and fourth objectors were purchasers of neighbouring land
subjected to the same restrictions. The applicant, being desirous of developing its land
as a multi-unit residential complex brought an application under section 5 of the
Restrictive Covenants (Discharge and Modification) Act 1960 for the court to determine
whether its land was affected by the restrictions and as to whether and by whom the
restrictions were enforceable.

[81] The Privy Council found that no scheme existed so that the covenants in the
applicant’s title ran with the land for the benefit of the objectors and their successors in
title. In arriving at that conclusion, the Privy Council noted these salient facts:

(a) There was nothing in the instruments of transfer to the purchasers

to suggest that the vendors were selling off a number of lots as
part of a scheme;

(b) There was no indication that the purchasers had assumed

obligations to any persons other than the vendors or had acquired
the benefit of obligations incurred by other persons;

(c) There was no evidence as to whether the sales of the lots were
advertised; and

(d) There was no evidence as to what, if any, representations were

made by the vendors to the purchasers at the time of sale.

Their Lordships then opined:

 “In the absence of any such extraneous evidence the terms
of the instruments of transfer alone [fell] far short of what is
required to establish community of interest or reciprocity of
obligation between purchasers… to imply ‘a building scheme
from no more than a common vendor and the existence of
common covenants’ would be going much too far.”

[82] Earlier, in Lamb v Midac, the Privy Council had observed that:

“…there is no evidence, such as might be provided by

a contract of sale, from which a court could properly
infer that each purchaser knew that purchasers of the
other lots had entered into, or would enter into,
similar covenants. The absence of this evidence is fatal
to Mr. Lamb on this part of his case. In the absence of
such evidence there is a lack of material from which intended
reciprocity of obligation and benefit between all the
purchasers can be inferred.” (Emphasis added)

[83] In White v Bijou Mansions Ltd, Greene MR, similarly, opined at page 362:

“There are certain matters which must be present before it is

possible to say that covenants entered into by a number of
persons, not with one another, but with somebody else, are
mutually enforceable… The material thing I think is that
every purchaser, in order that this principle can apply,
must know when he buys what are the regulations to
which he is subjecting himself, and what are the
regulations to which other purchasers on the estate
will be called upon to subject themselves. Unless you
have that, it is quite impossible in my judgment to draw the
necessary inference, whether you refer to it as an agreement
or as a community of interest importing reciprocity of
obligation.” (Emphasis added)

[84] Having considered the various authorities cited above, and having stepped back
and looked at the matter generally (as the Privy Council did in Emile Elias v Pine
Groves), I have seen nothing in the evidence presented before the learned judge from
which a court could properly infer the existence of an agreement importing reciprocity of
obligation and benefit needed for the establishment of a scheme. The mere endorsements
of the relevant covenants on the parent title for the Vale Royal subdivision and on the
parties’ certificates of title, standing alone, are insufficient to satisfy this criterion.
Therefore, the absence of crucial evidence satisfying this fundamental requirement would
have been fatal to the respondents’ case in the court below as it is to their case on appeal.

[85] In the result, I find that the learned judge would have erred in her conclusion that
there was evidence of reciprocity of obligation and benefit on the part of the purchasers
as between them and a common vendor and as among themselves that would support a
finding that a scheme exists. The appeal would, therefore, succeed on these grounds.

[86] However, the learned judge had gone further to find that a scheme existed on
other grounds, which warrant the attention of this court. This aspect of the judge’s
findings will be briefly addressed.

(v) Whether other factors provide sufficient evidence of the existence of a scheme

[87] The learned judge had also buttressed her conclusion that there was a scheme by
“other factors”, which, in her view, were (a) the opinion of the Lyns’ expert witness that
the respondents are entitled to the benefit of the covenants; (b) the initial evidence of
Mr Martin Lyn that the respondents were entitled to the benefit of the covenants; and (c)
the case of Sagicor Pooled Investment Funds Limited v Robertha Ann Matthies
and others (unreported), Supreme Court, Jamaica, Claim Nos 2008HCV3060, 3061 &
3062, judgment delivered 7 September 2011 (‘Sagicor Pooled Investment’). In that
case, it was decided by the Supreme Court and upheld by this court (neutral citation
[2017] JMCA Civ 35) that “registered proprietors of Upper Montrose Road are entitled to
the benefit of the covenants”.

[88] It seems safe to say that once the requirements laid down by law for the
establishment of a scheme are not satisfied, as found above, it would be contrary to law
to hold that a scheme exists by virtue of the three factors identified by the learned judge.
In any event, even if other factors could be relied on to prove the existence of a scheme,
those the learned judge identified were of no evidential value, whether standing alone or
collectively. The question of whether the respondents were entitled to the benefit of the
covenant was, ultimately, a legal one that could not have been resolved by anyone but
the learned judge after a consideration of the issues, the evidence and the circumstances
of the case before her.

[89] Therefore, the opinion of the Lyns’ expert, the statement of Mr Martin Lyn and the
pronouncements of the courts in the case of Sagicor Pooled Investment would have
been irrelevant considerations. Accordingly, as submitted on behalf of the Lyns, and for
the reasons they advanced in their submissions, the learned judge would have erred in
finding a scheme on the basis of these three factors.

Conclusion on issue (i)

[90] After an examination of the issue as to whether a scheme is proved to exist, it is

agreed among the parties that there was a defined area required for the development of
a scheme. This was not an issue on appeal. I conclude, however, on the totality of the
evidence that the respondents had failed to adduce sufficiently cogent evidence that all
the parties or their predecessors in title acquired their lands from a common vendor.
Flowing from this, it is also equivocal whether, even if there was a common vendor, he
had an intention to impose a scheme of mutual obligations and benefit among the
purchasers rather than only for the benefit of land retained by him at the time of partition.

[91] But even if those matters had been proved, and I am wrong to find to the contrary,
the evidence, nevertheless, failed to point to the requisite element of mutual reciprocity
of obligation and benefit among the purchasers themselves, as explained by the
authorities, which is necessary for the existence of a scheme. More particularly, there is
no direct evidence and no evidence from which it could be inferred that the original
purchasers had known and accepted at the time of the partition of the land for sale that
they had an obligation enforceable not only by the common vendor but those deriving
title from him (including other purchasers) and that each purchaser knew and accepted
that purchasers of the other lots had entered into, or would enter into, similar covenants
with the common vendor and among themselves.
[92] Consequently, I would hold that the learned judge erred in finding that there was
a scheme by which the relevant covenants would have burdened the Lyns’ land for the
benefit of the respondents’ lands. The respondents would have failed to produce sufficient
evidence to prove their claim, on a preponderance of the probabilities, that they are the
beneficiaries of the covenants and entitled to enforce them. Accordingly, the evidence
provided in the court below would have fallen short of the requisite standard of proof
and so, the Lyns succeed on this aspect of the appeal.

Issue (ii) – Whether the learned judge incorrectly exercised her discretion in
ordering the demolition of the structure on the Lyns’ land (grounds f. – h.)

[93] Having concluded that the learned judge erred in her finding that a scheme had
been established and that the respondents are beneficiaries of the relevant covenants,
the issue regarding the demolition of the structure would automatically be determined,
without more. There would have been no legal basis on which the learned judge could
have made the demolition order at the instance of the respondents, because they would
have had no legal standing to enforce the relevant covenants. Therefore, they would not
have been entitled to that relief. So, even though the Lyns are clearly in breach;
unfortunately, the respondents do not have the legal standing to obtain the orders they
sought in their claim to remedy it.

[94] In concluding on this issue, the court is guided by the standard of review of the
exercise of the discretion of a judge at first instance as enunciated in Hadmor
Productions Ltd and others v Hamilton and others [1982] 1 All ER 1042. At page
1046, Lord Diplock stated, in part:

“On an appeal from the judge’s grant or refusal of an

interlocutory injunction the function of an appellate court… is
not to exercise an independent discretion of its own. It must
defer to the judge’s exercise of his discretion and must not
interfere with it merely on the ground that the members of the
appellate court would have exercised the discretion differently.
The function of the appellate court is initially one of review
only. It may set aside the judge’s exercise of his discretion on
the ground that it was based on a misunderstanding of the law
 or of the evidence before him or on an inference that particular
facts existed or did not exist, which, although it was one that
might legitimately have been drawn on the evidence that was
before the judge, can be demonstrated to be wrong on by
further evidence that has become available by the time of the
appeal, or on the ground that there has been a change of
circumstances after the judge made his order that would have
justified his acceding to an application to vary it.”

[95] In The Attorney General of Jamaica v John MacKay [2012] JMCA App 1, this
court, endorsed and applied these principles at para. [20] of the judgment, where
Morrison JA (as he was then) stated:

"This court will therefore only set aside the exercise of a discretion
by a judge on an interlocutory application on the ground that it was
based on a misunderstanding by the judge of the law or of the
evidence before him, or on an inference – that particular facts
existed or did not exist – which can be shown to be demonstrably
wrong, or where the judge’s decision ‘is so aberrant that it must be
set aside on the ground that no judge regardful of his duty to act
judicially could have reached it’.”

[96] Although the instant case did not involve an interlocutory application before the
learned judge, the principles are applicable, nevertheless, in so far as the decision to
order the demolition of the building was based on the exercise of her discretion. The
standard of review is, therefore, applied and it is concluded that the learned judge erred
in the exercise of her discretion because it was based on some errors of law,
misunderstanding of the evidence, and inferences that particular facts existed that are
shown to be demonstrably wrong. In those circumstances, the intervention of this court
would be justified and the order for demolition would have to be set aside.

[97] However, before disposing of the appeal, I find it irresistible to note a few
observations in the light of the conduct of the Lyns in undertaking the construction in
breach of the covenants despite the conditional approval given to them by the KSAMC. I
make bold to say that had it been found that the respondents were entitled to the benefit
of the covenant, there is a strong possibility that the court might have treated differently
with the question of the exercise of the learned judge’s discretion given the applicable
standard of review.

[98] In Wrotham Park Estate Company v Parkside Homes Ltd [1974] 2 All ER
321 (‘Wrotham Park Estate’), Brightman J, upon being confronted with the question
of whether demolition of a housing complex should have been ordered and deciding that
such an order was not appropriate in the circumstances of that case, nevertheless, gave
this admonition, that I would adopt:

“…the fact that these houses will remain does not spell
out a charter entitling others to despoil adjacent areas
of land in breach of valid restrictions imposed by the
conveyances. A developer who tries that course may
be in for a rude awakening.” (Emphasis added)

[99] The Lyns could have easily been one of those developers “in for a rude awakening”
had the outcome of the appeal been different.

Disposal of the appeal

[100] Despite what I would view as the Lyns’ blatant disregard for the law in constructing
their development in breach of the restrictive covenants affecting their property, this
court has no option but to allow the appeal from the respondents’ claim, in the face of
the applicable law. This inevitably means that the orders of the learned judge made on
the respondents’ claim must be set aside. It follows too that the respondents’ claim will
have to be dismissed by this court, given that the learned judge ought to have made that
order in the light of the evidence.

[101] The Lyns have asked for a declaration that the relevant covenants are personal to
the original covenantor. I would refuse to grant such a declaration as there is no existing
claim before the court in relation to which such a declaration may properly be made. The
respondents’ claim did not include any application for such a declaration and given that
the claim is dismissed, no declaration can be made on it. The appeal from the decision
on the Lyns’ claim, having not been pursued at the hearing, that aspect of the Lyns’
appeal should stand as dismissed. Therefore, the Lyns have no subsisting claim upon
which any remedy, such as the declaration sought, may lawfully be given by this court.
Furthermore, this case fails because of insufficiency of evidence and the operation of the
incidence of the burden and standard of proof. Against this background, I believe this
court should refrain from making any definitive declaration, which was never sought by
the Lyns’ on any claim in the court below.

[102] As it relates to the costs of the proceedings emanating from the respondents’ claim
in the court below, I am inclined to hold that the respondents should pay the costs of
those proceedings in keeping with the general rule, costs follow the event. As it relates
to the appeal, I would propose that each party should bear its own costs, given all the
circumstances, including the fact that the respondents would be entitled to costs on the
appeal from the decision on the Lyns’ claim, while the Lyns would be entitled to costs on
the appeal from the respondents’ claim.

[103] However, before a final costs order is made, I propose that the parties be invited
to make submissions on the incidence of the burden of costs within 28 days of the order
of this court, failing which the orders proposed above should be made.

[104] I propose that the foregoing orders be made as the final orders of the court in
disposing of the appeal.

SIMMONS JA

[105] I have read, in draft, the judgment of McDonald-Bishop P (Ag). I agree with her
reasoning and conclusion, and there is nothing I could usefully add.

BROWN JA (AG)

[106] I, too, have read the draft judgment of McDonald-Bishop P (Ag) and agree with
her reasoning and conclusion. I have nothing useful to add.
MCDONALD-BISHOP P (AG)

ORDER

1. The appeal from the decision of the Supreme Court made on 21

January 2020 on Claim No 2017 HCV02997 (the Lyns’ claim) is
dismissed.

2. The order of the Supreme Court made on the Lyns’ claim is

affirmed.

3. The appeal from the decision of the Supreme Court made on 21

January 2020 on Claim No 2018 HCV 02906 (the respondents’
claim) is allowed.

4. The orders of the Supreme Court made on the respondents’ claim

on 21 January 2020 are set aside.

5. The amended fixed date claim form filed by the respondents on

5 October 2018 is dismissed.

6. Costs of the proceedings in the Supreme Court on the

respondents’ claim to the Lyns to be agreed or taxed.

7. Each party to bear its own costs of the appeal from both claims
unless within 14 days of the date of this order, the party seeking
a different order as to costs files and serves written submissions
for a different costs order to be made. Any responding party is to
file and serve written submissions within 14 days of service on
them of the submissions of the party seeking costs.