Mon | Oct 23, 2017

Court tosses man's bus park claim

Published:Friday | December 19, 2014 | 12:00 AM

Barbara Gayle, Justice Coordinator

A former park manager who filed a claim in the Supreme Court seeking possession of a bus park and arcade in St Mary has instead been ordered to account for revenue and expenditure there, and repay net earnings with interest to the parish council.

Seymour Morales contended that since 1994 he had been in exclusive and undisturbed possession of the property, the Horace Clarke Arcade and Bus Terminal, also known as the Port Maria Arcade and Bus Terminal, which he said he privately operated.

Justice David Batts made the order against Morales recently when he threw out the claim and ruled in favour of the St Mary Parish Council. The judge also ordered that upon the account being certified by the Registrar of the Supreme Court, any net earnings from the bus terminal between 1994 and 2009 are to be paid to the parish council with interest.

Morales said he occupied the property at 23 Main Street, Port Maria, from 1994 and was evicted by the parish council in November 2009.

He contended that he was entitled to all rent and profit generated from the property from November 2009 until possession was delivered up, at a rate of $515,333.33 per month.

Account of rents and profits

Alternatively, he asked for an account of the rents and profits from the property received by the parish council and/or the Government, with interest. He also claimed for damages and legal costs.

He said it was then member of parliament for Central St Mary, Horace Clarke (now deceased), a former transport minister, who invited him to form a committee to rehabilitate the property, but the committee did not function effectively.

Morales, who was represented by attorneys Alando Terrelonge and Kristina Exell, advised the court that "in order to protect" his investment he continued the operation of the park.

He said he used $380,000, his personal funds, to upgrade the facility, which included refurbishing the bathrooms, and built an office and two gatehouses where public transport operators paid their fees.

At no time was he an agent, servant or contractor for the parish council or the Government, he said.

Morales disclosed that in 1995 a decision was made to have the park gazetted, but it was discovered that the property was not owned by the parish council. As a consequence, the arcade could not be established as a gazetted transport centre.

He, therefore, continued to operate the centre to protect his investment and as a "well-needed service" until he was evicted at the instance of the parish council.

The parish council, which was represented by attorney Catherine Minto, counterclaimed for an account for all revenue and expenditure during Morales' management and administration of the bus park and for the rent to be paid over with interest.

Justice Batts noted that during cross-examination, it emerged that the property in question consisted of three parcels as follows: 23 Main Street, owned by the United Fruit Company; 25 Main Street, owned by Jamaica Producers; and 46 Nevers Street, owned by the Commissioner of Lands.

The judge said Morales admitted that none of the three owners was named as a defendant and he produced no documentary support regarding the expenditure on rehabilitation of the park.

Morales admitted that in 1994, he entered possession as chairman of a committee and not in his personal capacity. He said the committee was the entity that was vested control and management of the arcade and bus park and had sole authority to receive funds in relation to their operation. However, he said the funds did not belong to committee members.

In handing down judgment, Justice Batts said there has not been sufficient evidence to satisfy him on a balance of probabilities that Morales was in possession for the 12 years necessary for a claim based upon the Limitation of Actions Act.

"I am also not satisfied, having seen and heard his evidence, that he had the requisite intent to possess," the judge said. "It is clear that he entered into the arrangement to operate the bus park as an agent of the minister."

Justice Batts said the Parish Council had a
vested interest in a properly-run bus park and had disbursed public
funds for its construction.

He found that Morales'
sole intent was for a refund of the sums he allegedly spent, which he
said was a loan to the committee and he expected to be repaid from the
earnings of the park.

However, the judge said the
evidence of that expenditure "is sadly lacking" because Morales said he
has" lost" his receipts.

"I find it inconceivable that
someone who 'loaned' funds to the committee and expected repayment
would fail to safely secure the receipts," he
said.

"In 1994, $380,000 was, in real terms, a
considerable sum. The documentation refutes the assertion that he built
anything. Rather, it appears he may have contributed to some painting or
cosmetic changes or cleaning up. I reject the evidence orally given
that $380,000 was spent," Justice Batts said.

The
attorney general, who was named as second defendant and was represented
by attorney Alethia Whyte, instructed by the director of state
proceedings, said the arcade and bus terminus were constructed at the
instance of the then member of parliament for Central St
Mary.

It said funds for construction were provided by
the Ministry of Local Government and Works.

Sheldon
Peart, retired secretary/manager of the St Mary Parish Council, who was
called as a witness, said the funds were channelled through the parish
council, which oversaw the construction of an administrative building -
ticket office - and sanitary facilities, while shops were constructed
later on.