J &O Operators Ltd, Beverley Wong, Eloise Mulligan and Grace Wong v Kingston & St. Andrew Corporation

• Jurisdiction: Jamaica
• Judge: ANDERSON J.
• Judgment Date: 13 June 2005
• Judgment citation (vLex): [2005] 5 JJC 2003
• Court: Supreme Court (Jamaica)
• Date: 13 June 2005

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

SUIT NO: C.L. 1999/J - 116

BETWEEN

J & O OPERATORS LIMITED

1 ^ST PLAINTIFF

AND

BEVERLEY WONG

2 ^ND PLAINTIFF

AND

ELOISE MULLIGAN

3 ^RD PLAINTIFF

AND

GRACE WONG

4 ^TH PLAINTIFF

AND

THE KINGSTON & SAINT ANDKEW CORPORATION

DEFENDANT

REAL PROPERTY - Easements

ANDERSON J

1 Up until the late 1950s, horse racing, "the sport of Kings" was carried on at Knutsford Park, a vast tract of land minutes away from Cross Roads and Half Way Tree in St. Andrew. The tremendous potential for the commercial development of this area if the race track could be re-located, was recognized by entrepreneurs who then planned and executed a major commercial development, subdividing the property into over three hundred (300) commercial lots for sale to the public. The genesis of this claim by the Plaintiffs in this matter is that subdivision and development of the area into the corporate area's modem financial/commercial centre, now known as New Kingston. In order to give a visual picture of the properties involved in this dispute, a plan of the area as the development was approved and as contained in the agreed bundle, is attached to this judgment as an Exhibit.

2 The Plaintiffs and the Defendant in this case are all registered proprietors of parcels of land in "New Kingston". The Plaintiffs' lots are contiguous to the lot owned by the Defendant. For ease of reference, this lot which is registered at Volume 1181 Folio 613 of the Register Book of Titles, is referred to herein variously as Lot C, parking lot C and St. Lucia Way. The Plaintiffs claim that by virtue of the history of the development, they have acquired certain rights of way and other rights over the Defendant's lot (Lot C) in respect of winch they seek declarations and injunctions They allege that in the recent past, the Defendant corporation has established a car park that is used by members of the public for a fee They allege further that, as a consequence of this development, the rights which they had acquired in respect of and over the land of the Defendant, are being denied in breach of the legal rights and they accordingly seek redress from this court Consequently, they seek against the Defendant. Kingston and St Andrew, the following reliefs as set out in their endorsement and statement of claim.

3 ENDORSEMENT

• (a) A declaration that the First Plaintiff. J & O Operators Limited, as the registered proprietor of the lots registered at Volume 957 Folios 43–49 and volume 957 Folios 50–53 of the Register Book of Titles, that the Second Plaintiff. Beverly Wong, as the registered proprietor of the Jots registered at Volume 957 Folio 54 and 55 of the Register Book of Titles, and that the Third Plaintiff, Eloise Mulligan, as the registered proprietor of the lots registered at Volume 957 Folio 57 of the Register Book of Titles, and that the Fourth Plaintiff. Grace Wong, as the registered proprietor of the lots registered at Volume 957 Folio 58 of the Register Book of Titles, respectively, are entitled to a right of way over the land described as Lot C on the Plan deposited in the Office of Titles on the 13 ^th January 1960 and now comprised in Certificate of • Title registered at Volume 1181 Folio 613 of the Register Book of Titles to and from the Plaintiffs' lots to the main road known as St. Lucia Avenue for the purpose of passing and repassing by themselves, their servants, agents, licencees, visitors and tenants on foot and with horses, carriages, motor vehicles and other vehicles at all limes and for all purposes.

  • aa. A declaration that the first Plaintiff, J & O Operators Limited, as the registered proprietor of the lots registered at Volume 957 Folios 43–49 and volume 957 Folios 50–53 of the Register Book of Titles, that the Second Plaintiff, Beverly Wong, as the registered proprietor of the lots registered at Volume 957 Folio 54 and 55 of the Register Book of Titles, and that the Third Plaintiff, Eloise Mulligan, as the registered proprietor of the lots registered at Volume 957 Folio 57 of the Register Book of Titles, and that the Fourth Plaintiff, Grace Wong, as the registered proprietor of the lots registered at Volume 957 Folio 58 of the Register Book of Titles, respectively, are entitled to a right of way over the land described as Lot C on the Plan deposited in the Office of Titles on the 13 ^th January 1960 and now comprised in Certificate of Title registered at Volume 1181 Folio 613 of the Register Book of Titles to and from the Plaintiffs' lots to the main road known as Knutsford Boulevard for the purpose of passing and re-passing by themselves, their servants, agents, licencees, visitors and tenants on fool and with horses, carriages, motor vehicles and other vehicles at all times and for all purposes.

• (b) A declaration that the first Plaintiff, J & O Operators Limited, as the registered proprietor of the lots registered at Volume 957 Folios 43–49 and volume 957 Folios 50–53 of the Register Book of Titles, that the Second Plaintiff, Beverly Wong, as the registered proprietor of the lots registered at Volume 957 Folio 54 and 55 of the Register Book of Titles, and that the Third Plaintiff, Eloise Mulligan as the registered proprietor of the lots registered at Volume 957 Folio 57 of the Register Book of Titles, and that the Fourth Plaintiff. Grace Wong, as the registered proprietor of the lots registered at Volume 957 Folio 58 of the Register Book of Titles, respectively, are entitled to park motor vehicles on the land described as Lot C on the Plan deposited in the Office of Tales on the 13 ^th January I960 and comprised in the Certificate of Title registered at Volume 1181 Folio 613 of the Register Book of Titles

• (c) A declaration that the Defendant is not entitled to charge or impose a fee on the Plaintiffs, their servants, agents, licencees, tenants and or visitors for access to Lot C on the Plan deposited in the Office of Titles on the 13 ^th January 1960 and comprised in the Certificate of Title registered at Volume 1181 Folio 613 of the Register Book of Titles

• (d) A declaration that the Defendant is not entitled to charge or impose a fee on the Plaintiffs, their servants, agents, licencees, tenants and/or visitors for parking on Lot C on the Plan deposited in the Office of Titles on the 13 ^th January 1960 and comprised in the Certificate of Title registered at Volume 1181 Folio 613 of the Register Book of Titles

• (e) A declaration that the Defendant is not entitled to prevent, obstruct and/or otherwise impede the Plaintiffs, their servants, agents, licencees, tenants and/or visitors entry or exit from the land described as Lot C on the Plan deposited in the Office of Titles on the 13 ^th January 1960 and comprised in the Certificate of Title registered at Volume 1181 Folio 613 of the Register Book of Titles

• (f) An injunction to restrain the Defendant by itself, its servants and/or agents from

  • a. Interfering with the Plaintiffs, their sen ants, agents, licencees, visitors or tenants rights of entry on the land described as Lot C on the Plan deposited in the Office of Titles on the 13 ^th January 1960 comprised in the Certificate of Title registered at Volume 1181 Folio 613

  • b. Imposing on or charging any fee, money or charge to the Plaintiffs, their servants, agents licencees, visitors and tenants for entering and exiling or parking motor vehicles upon the land described as Lot C on the Plan deposited in the Office of Titles on the 13 ^th January 1960 and comprised in the Certificate of Title registered at Volume 1181 Folio 613 of the Register Book of Titles

  • c. Preventing, stopping, or obstructing the Plaintiffs, their servants agents, licencees visitors or tenants from entering or exiting the land described as Lot C on the Plan deposited in the Office of Titles on the 13 ^th January 1960 and comprised in the Certificate of Title registered at Volume 1181 Folio 613

• (g) Damages for trespass, nuisance, breach of the Constitution of Jamaica, breach of prescriptive rights and/or breach of contract

• (h) Interest thereon at such rate as this Honourable Court may determine

• (i) Costs

• (j) Any other reliefs

4 In light of the pleadings raised herein, it seems that the issues which this court must decide are as follows

• A Have the plaintiffs established that they are entitled to an easement, being a right of way over the property of the Defendant. Lot C. both in order to allow the plaintiffs, their servants, agents, licencees, visitors and tenants access to the plaintiffs' lots, as well as access to Knutsford Boulevard to the West of Lot C?

• B Can the right to park motor vehicles constitute an easement, and are the plaintiffs entitled to a declaration therefor?

• C Is the Defendant entitled to deny access to Lot C, or otherwise to impede or obstruct entry and exit to and from the said Lot, to the plaintiffs, their servants, agents, licencees, invitees, tenants and/or visitors, by charging a fee for accessing the plaintiffs* lots over, or for the Plaintiffs parking on Lot C?

• D Are the plaintiffs entitled to the injunctions which they seek to restrain the defendant from preventing the plaintiffs, their servants, agents or invitees from using Lot C for the purpose of passing and re-passing over the said lot in order to access the plaintiffs' lots?

• E Has the Defendant committed a tort in misance or trespass against the Plaintiffs or has there been a breach of any constitutional rights of the plaintiffs for which they are entitled to damages?

5 I shall seek to determine these issues in light of the evidence which was Jed by the parties herein as well as to the submissions made on their behalf by their counsel Much of the history which has given rise to these claims is articulated in the pleadings, the Statement of...