Benbecula Ltd v Palm Beach Runaway Bay Ltd
| Jurisdiction | Jamaica |
| Judge | D Fraser JA,F Williams JA |
| Judgment Date | 06 May 2022 |
| Neutral Citation | JM 2022 CA 053 |
| Docket Number | APPLICATION NO COA2022APP00059 |
| Court | Court of Appeal (Jamaica) |
and
[2022] JMCA Crim 28
THE HON Mr Justice F Williams JA
THE HON Mr Justice D Fraser JA
THE HON Mr Justice Brown JA (AG)
APPLICATION NO COA2022APP00059
IN THE COURT OF APPEAL
Mrs Denise Kitson QC, Malcolm McDonald and Ms Regina Wong instructed by Grant, Stewart, Phillips & Co for the applicants
B St Michael Hylton QC and Kevin Powell instructed by Hylton Powell for the respondent
I have read in draft the judgment of my brother D Fraser JA and agree with his reasoning and conclusion. There is nothing that I wish to add.
This is an application filed on 15 March 2022 by the applicants, Benbecula Limited and Malcolm McDonald, for permission to appeal against the decision of Batts J (‘the learned judge’), delivered on 1 March 2022, in a written judgment cited as Palm Beach Runaway Bay Limited v Benbecula Limited and Malcolm McDonald [2022] JMCC Comm 5. Batts J ordered that:
“a. It is declared that the [respondent] is entitled to a right of way over the roadway marked ‘Road Reserved 26 feet wide’ as shown on the plan annexed to Certificate of Title registered at Volume 1505 Folio 947 of the Register Book of Titles (the Reserved Road)
b. A Case Management Conference for the assessment of damages and the consideration of other remedies is to be fixed and
c. Costs to the [respondent] to be agreed or taxed.”
The applicants also seek a stay of execution of the order at paragraph b and such further or other relief as may be just in the circumstances.
The grounds on which the application was made are as follows:
“1. Rule 1.8 of the Court of Appeal Rules provides that an application for permission to appeal must be made within fourteen (14) days of the order against which permission to appeal is sought.
2. The orders against which permission to appeal is being sought were made on March 1, 2022.
3. The applicants' oral application to the court below for permission to appeal was refused.
4. The applicants have a realistic prospect of succeeding on the appeal and the appeal would be rendered nugatory in the absence of a stay of execution.
5. The grounds of appeal on which the applicants intend to rely on [sic] are, inter alia, that his Lordship:
a. erred in granting Summary Judgment to the [respondent];
b. erred in his finding in law that a right of way is not an interest in land or right capable of being extinguished by operation of section 3 of the Limitation of Actions Act.”
The 2 nd applicant filed an affidavit in support of the application, exhibiting the evidence that was before the learned judge. The respondent, Palm Beach Runaway Bay Limited, opposed the application. Before going into the substance of the application it is necessary to set out the background.
On 29 December 2020 the respondent filed a claim in the Commercial Division of the Supreme Court against the applicants, claiming an entitlement to enforce a right of way over a roadway marked “Road Reserved 26 feet wide” (‘the reserved road’), as depicted on a plan annexed to certificate of title registered at Volume 1505 Folio 947 of the Register Book of Titles. The claim in full sought the following:
1. … A declaration that the [respondent] is entitled to a right of way over the roadway marked ‘Road Reserved 26 feet wide’ as shown on the plan annexed to certificate of title registered at Volume 1505 Folio 947 of the Register Book of Titles (‘the Reserved Road’).
2. A declaration that the [respondent] is entitled to use and access the reserved road unimpeded and uninterrupted.
3. An injunction restraining the [applicants], themselves or their servants or agents or otherwise howsoever, from restricting, obstructing or interfering in any way with the [respondent's] right of way over the Reserved Road.
4. An order compelling the [applicants] to remove the wall, the gate and the outbuildings, including a generator house, dog kennels and a gate house they constructed on or blocking the Reserved Road, and permitting the [respondent] to remove them if the [applicants] fail to do so.
5. Damages for the [applicants'] obstruction and interference with the [respondent's] right of way over the Reserved Road.
6. Interest on damages pursuant to the Law reform (Miscellaneous Provisions) Act.
7. Costs.
8. Such further or other relief as the court may consider appropriate.”
On 16 February 2021 the applicants filed a defence to the claim asserting that the right of way had long been extinguished as they had been in exclusive and undisturbed occupation since or around 1996. They also averred that the said right of way had been abandoned or not exercised since its creation in or around 1950.
On 6 October 2021 the respondent filed an application for summary judgment on the claim. The orders sought were that:
“a. The [respondent] be granted summary judgment against the [applicants] on the claim herein.
b. Alternatively, the [respondent] be granted summary judgment on the issue as to whether the right of way over the reserved road has been extinguished by virtue of the [1 st applicant's] alleged exclusive occupation of the reserved road.
c. A hearing date be set for an assessment of damages.
d. The costs of these proceedings be awarded to the [respondent].
e. There be such further or other relief as the court deems just.”
At the hearing of the application for summary judgment, evidence was put before the learned judge in the form of affidavits sworn to by Frederick Moe and Grantley Fitzgerald Kindness (both filed 6 October 2021) and by the 2 nd applicant, Wentworth Prendergast and Seuin Pirson (all three filed 18 January 2022). The relevant facts as found by the learned judge from that evidence are as follows:
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a) the 1 st applicant is the registered owner of lot 8, which is registered at Volume 1267 Folio 64 of the Register Book of Titles and adjoins the respondent's land. (It is noted that the learned judge indicated that “The plan annexed to the title shows a roadway marked ‘reserved road 26 feet wide’ [The reserved road]”. However, from the affidavit evidence of Mr Grantley Fitzgerald Kindness, Commissioned Land Surveyor, that plan was annexed to the title of the respondent registered at Volume 1505 Folio 947 of the Register Book of Titles. While the error is made in the outline of the facts, the correct indication of the annexure of the plan is outlined in the first order made by the learned judge at the end of his judgment. Nothing turns on the error, as there is no dispute concerning the identification of the reserved road or the physical outlay of the parties' properties.)
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b) the 2 nd applicant is a director, and the general manager of the 1 st applicant, who at all material times acted as its agent.
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c) the respondent is the registered owner of lots 2, 3, 4, 5, 6, 7, 13, 14 and the canal located between lots 4 and 5 and lots 7 and 8, all comprised in the certificate of title registered at Volume 1505 Folio 947 of the Register Book of Titles.
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d) the reserved road is adjacent to the 1 st applicant's land and to the respondent's land. It allows for an alternate access to the respondent's and the 1 st applicant's land.
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e) There is agreement on the physical outlay of the parties' properties as outlined in paragraphs 3 —5 of the affidavit of Frederick Moe, a director of the respondent.
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f) The applicants constructed a fence and a gate in 1996 across the reserved road. The fence was later replaced by a wall. The applicants maintain that since 1996 they enjoyed exclusive occupation, use of and access to the reserved road, which, they contend, extinguished any right of way to the use of the reserved road by any other proprietor. They allege that there was no protest until long after the 12-year limitation period had passed.
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g) The applicants' position is supported by Wentworth Prendergast and Gavin Pirson who both confirm the presence of the fence and wall across the reserved road for a period exceeding 12 years and the applicants' exclusive possession.
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h) The respondent alleges that the applicants also erected a generator house, dog kennels and a gate house on the reserved road.
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i) By letter dated 13 November 2020 the Saint Ann Municipal Corporation requested the 2 nd applicant to remove the gate and wall obstructing the reserved road.
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j) The opinion provided in his affidavit by Grantley Fitzgerald Kindness after his review of the relevant titles, plans and easement was that:
“a. The Reserved Road is still part of the land registered at Volume 698 Folio 45; and
b. Both Palm Beach and Benbecula are entitled to a right of way over the Reserved Road and to use that roadway to access their respective properties.”
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k) Despite the evidence of Grantley Fitzgerald Kindness, the applicants maintain that the right of way has been extinguished.
It should also be noted that the Saint Ann Municipal Corporation indicated in letters to the 2 nd applicant (dated 13 November 2020) and the respondent (dated 7 July 2021), that access should be granted by the applicants to the reserved road. In the letter to the respondent, it was stated that in the building and planning approval granted in 2019, it was indicated that the reserved road would serve as an alternate access point, particularly for emergency purposes. The approval was for a development being undertakn by the respondent on its property.
Regarding the facts, before this court, the position remains that as noted by the learned judge at paragraph [1] of his judgment, that, “although rather involved they are not much in dispute”.
Learned Queen's Counsel, Mrs Kitson, commenced by submitting that the need for permission to appeal, arose under section 11(1)(f) of the Judicature (Appellate Jurisdiction)...
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