Attorney General, District Cons. Thomas and District Cons. Burke v Sheryl Dacres

• Jurisdiction: Jamaica
• Judge: PANTON, P. , MORRISON, J.A. , MCINTOSH, J.A. (Ag.):
• Judgment Date: 30 July 2009
• Neutral Citation: JM 2009 CA 72
• Judgment citation (vLex): [2009] 7 JJC 3013
• Court: Court of Appeal (Jamaica)
• Date: 30 July 2009

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE PANTON, P.THE HON. MR. JUSTICE MORRISON, J.A.THE HON. MRS. JUSTICE MCINTOSH, J.A. (Ag.)

BETWEEN

THE ATTORNEY GENERAL

1 ^ST APPELLANT

AND

DISTRICT CONS. THOMAS

2 ^ND APPELLANT

AND

DISTRICT CONS. BURKE

3 ^RD APPELLANT

AND

SHERYL DACRES

RESPONDENT

REAL PROPERTY - Compensation - Damage to property - Trespass - Malicious destruction to property

PANTON, P

I have read the reasons for judgment of my learned sister Norma Mcintosh, J.A. (Ag.). I agree with her and have nothing to add.

MORRISON, J.A

I too agree with the reasons for judgment that have been written by my learned sister and have nothing to add.

MCINTOSH, J.A. (Ag.)

1 This is an appeal from a decision in the Civil Division of the Resident Magistrate's Court for the Corporate area, delivered on the 21 ^st of June, 2007. After hearing legal arguments, on the 22 ^nd and 23 ^rd of May, we committed ourselves to delivering our decision on the 29 ^th of May, 2009 and, on that date, we allowed the appeal, set aside the judgment in the court below and entered judgment for the Appellants. Costs of the appeal, set at $15,000.00, were awarded to the Appellants, together with costs in the court below, which are to be taxed if not agreed. We now give our reasons for that decision.

A BRIEF BACKGROUND

2 The circumstances which led Miss Dacres to file suit in the Resident Magistrate's Court on the 17 ^th of May, 2006, may be summarized as follows:

The Plaintiff/Respondent's Claim

• 1. Miss Dacres was building a house on land situated at Waugh Hill in the parish of St. Andrew, with the permission of her step-father, Clarence Litchmore, whom she said she understood was its owner.

• 2. On December 4, 2005, while her house was yet unfinished, the 2 ^nd and 3 ^rd Appellants and another officer, one Corporal Bryan, arrived there in the company of one Frederick Rey Campbell who asserted that he was the owner of the land.

• 3. Thereafter, Mr. Campbell, armed with a sledge hammer, proceeded to knock down a section of a wall of the house and it is this damage for which Miss Dacres sought compensation.

3 In her Particulars of Claim Miss Dacres alleged that damage was done to the left side of her house, from the outside to the inside, whereby "approximately ten (10) rows of blocks in a vertical position and four (4) rows in a horizontal position, were broken out." She further alleged that "the 2 ^nd and 3 ^rd Defendants, in the purported execution of their duty, maliciously and/or without reasonable and/or probable cause accompanied and, under their watch, caused a gentleman, unknown to the Plaintiff to use a sledge hammer to maliciously damage a side wall of the Plaintiff's dwelling house" resulting in loss and damage to her.

The Evidence

4 The Plaintiff/Respondent testified that on December 4, 2005, she saw a jeep drive up to her unfinished house. She was not living there at the time but was only a stone's throw away. Three police officers and a male civilian, who was unknown to her, came from the vehicle. One of the police officers — a Corporal — came over to where she was and spoke to her, telling her that the premises belonged to the civilian and she should vacate it.

5 Miss Dacres said she heard a knocking and saw one officer inside the unfinished building and one outside, looking on. The man who was knocking was using a sledge hammer which he took out of his van — "the one which all the men arrived in. They came there, yes, with the hammer." She asked the Corporal how they could stand there and let him knock down the building whereupon the Corporal said "it's the gentleman's place, he is free to do what he will with it."

6 She spoke to the other officer and to the District Constable, asking what was happening and was told to speak to the gentleman, not to him. She tried speaking to the gentleman but he continued to knock down the building saying that he came there for one thing and one thing only. The police could have heard what he said and they did nothing.

7 She said "he used the sledge hammer to beat the wall several times; the police were encouraging him because they said is his place im free to do what him want to do. They did nothing to discourage him." When she sent for Mr. Litchmore they all left. She subsequently made a report to the police but to her knowledge no arrest had been made to date.

8 In cross examination she said that two of the officers were with her while one was by the house. She denied that it was the police who stopped the sledge hammer wielding Mr. Campbell. To her understanding, the police encouraged him.

9 She called Mr. Litchmore, as her witness, to speak to ownership of the land. His evidence was that he was engaged by the owner of the land, one Ben Campbell, to look after the land, from about 1956. When Mr. Ben Campbell died no one came about it so he started to pay the taxes and as far as he is concerned the land now belongs to him. He gave his daughter-in-law (that is, Miss Dacres, also described as step daughter and niece) permission to build on the land and it was his intention to give her that piece of the land.

10 The two named Appellants gave evidence to the effect that they were directed by their senior officer to accompany him to Waugh Hill where there was a disturbance. A complaint to this effect had been received from Mr. Rey Campbell. They arrived at the location in a service vehicle while Mr. Campbell arrived in his private vehicle. The latter spoke to Miss Dacres who became upset. Mr. Campbell also was upset. A knocking was heard and they (District Constables Bryan and Burke) went across the road where they saw Mr. Campbell with a sledge hammer hitting the wall of the building. District Constable Burke said he (D.C. Burke) told him to stop and then he returned to the other side of the road.

11 Mr. Campbell came out to the road and stood by his private motor vehicle as the Corporal spoke to the Respondent. Moments later, while the officers were trying to mediate, the knocking resumed. They went back across the road and saw Mr. Campbell, again with the sledge hammer in action. This time the hammer was taken from him and he was told that they came to settle a dispute, not to knock down a building. The Respondent was advised to take civil action.

12 District Constable Thomas said that the dispute was across the road from where the banging sounds were heard. When, in cross-examination, it was suggested to him that they had gone there that morning to hit down the building, he denied this and added that he was not even told what the dispute was about — just that a dispute had been reported.

The Resident Magistrate's Judgment and Supporting Reasons

13 On the 21 ^st of June, 2007 the learned Resident Magistrate gave judgment to the Plaintiff in the sum of one hundred and ten thousand six hundred and eighty eight dollars ($110,688.00) with costs set at $15,000.00 and gave written reasons for that judgment, which are summarized as follows:

• 1. In terms of the oral and documentary evidence given the court found the Plaintiff to be a credible witness; the two Defendants (now 2 ^nd and 3 ^rd Appellants) were not credible even though they were consistent in their evidence, the court being of the view that their evidence and their consistency were contrived. They were not believed in their evidence that they had travelled separately to Waugh Hill and that made the balance of their evidence "suspect."

• 2. It is clear from their evidence that they were in fact present and should and could have prevented the malicious destruction of property which took place. The evidence disclosed that the officers did not go to the location with the intention to initiate criminal proceedings under the Trespass Act, which is what they should have done.

• 3. Although they maintained that they went to mediate and try to settle a dispute, the evidence indicated that they mistakenly believed that Mr. Campbell had a right to destroy the Plaintiff's property because of his alleged rights of ownership.

• 4. The evidence is clear and undisputed that the Plaintiff erected the building and that it was destroyed in part by Mr. Campbell and in the presence of the Plaintiff and the 2 ^nd and 3 ^rd Defendants.

14 The learned Resident Magistrate had determined that an issue for her consideration was whether the policemen, officers of the state, with a statutory duty to serve and protect, acted in a manner which was/is culpable so as to merit condemnation and punishment. In that regard, she found that:

• 5. There is no doubt that the 2 ^nd and 3 ^rd defendants were in fact on duty and were present and on spot when the destruction or damage to property took place. They failed to act to protect the Plaintiff's property because they believed that the 'so-called' land owner was within his rights to destroy/damage her property. In failing to act they were in wilful neglect of their duty in the circumstances and in breach of their duty of care to the plaintiff as a member of the public who they are sworn to protect.

15 She clearly took guidance from certain criminal cases, dealing with wilful neglect, to which her attention was drawn by Counsel for the Plaintiff, -- Rv O'Connor and Errol Woods (1992) 29 J.LR. 157 and R v Dytham (1979) 3 W.L.R. 467, C.A. -- and found that the Plaintiff's submissions on the point were "particularly relevant." Based on the above reasons she gave judgment to the Plaintiff.

THE APPEAL

16 The Appellants challenged the decision of the learned Resident Magistrate in the eight grounds of appeal filed and argued. They are as follows:

Submissions Summarized:

Miss White, on behalf of the Appellants.

• 1. The learned Resident Magistrate erred in failing to find that the ownership of the property was a relevant issue but it is clear from her ruling that she applied...