Blake v Williamson and Dunkley

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Brooks JA,Sinclair-Haynes JA,Edwards JA (AG),Brooks, JA
• Judgment Date: 25 November 2016
• Neutral Citation: JM 2016 CA 121
• Docket Number: Resident Magistrate's Civil Appeal No. 21/2015
• Date: 25 November 2016

Court of Appeal

before

Brooks, J.A.;

Sinclair-Haynes, J.A.;

Edwards, J.A. (Ag.)

Resident Magistrate's Civil Appeal No. 21/2015

Blake

and

Williamson and Dunkley

Appearances:

Miss Audrey Clarke for the appellant

Mr. Ewan Thompson for the respondents

Cases Mentioned:

Rhesa Shipping Co SA v. Edmunds and another [1985] 2 All ER 712 — Watt v. Thomas (1947) 1 All ER 582 — R v. Warwar (1969) 11 JLR 370 — Industrial Chemical Co (Ja) Ltd v. Owen Ellis (1986) JLR 35.

Legislation:

Land Surveyor's Act, Section 27 (1)

Tort - Trespass — Boundary dispute — Whether the Magistrate's decision was reasonable having regard to the evidence — Whether the Magistrate erred in her treatment of the evidence — Magistrate's reliance on the survey diagram.

Brooks JA

1 I have read in draft the judgment of my learned sister Edwards JA (Ag) and agree with her reasoning and conclusion. I have nothing that I can usefully add.

Sinclair-Haynes JA

2 I too have read the draft judgment of Edwards JA (Ag) and I agree.

Edwards JA (AG)

3 This is an appeal from the judgment and orders of the learned Resident Magistrate (now termed Parish Judges) for the parish of Saint Elizabeth in an action brought by the appellant Mr. Paul Blake against the respondents Mr. Donald Williamson and Mr. Frank Dunkley jointly and severally, for the tort of trespass. The defence stated in the court below was a joint defence and Mr. Williamson took no part in the trial or in this appeal.

4 The plaint filed by Mr. Blake in November 2008, was for damages in the sum of $250,000.00 for trespass against the two respondents and an injunction restraining the respondents and/or their servants or agents from entering upon his land. It arose from the fact that Mr. Dunkley owned lands adjoining to Mr. Blake in Ridge Pen, Saint Elizabeth. Mr. Dunkley bought the land from Mrs. Ruby-Lynn Connell. Both Mrs. Connell and Mr. Blake obtained their individual parcels of land from Mr. Cyril Dyer.

5 Mrs. Connell obtained a registered title for her parcel of land which she later sold to Mr. Dunkley. Mr. Blake, who owned the land with his now deceased mother Miss Icema DaCosta, was content to retain his common law conveyance given to them by Mr. Dyer at the time of purchase. Though the land was divided and apportioned as stated above, no survey had been done by anyone and each parcel was established by estimation only.

6 In March 2008 Mr. Dunkley hired Mr. Williamson to construct a road on the property he bought from Mrs. Connell. This Mr. Williamson did. Mr. Blake alleged that a section of the road encroached on his portion of the land. They both shared a boundary line on the western and southern side of Mr. Blake's parcel of land. Mr. Dunkley asserted that the road he built did not cross the boundary line. Mr. Blake claimed it did. Mr. Dunkley's assertion was based on a survey diagram that had been commissioned by his predecessor in title, Mrs. Connell, prior to her sale to him but subsequent to her obtaining the registered title for the land. Mr. Blake's claim was based on his and Miss Rosetta Powell's viva voce evidence of the existing boundaries prior to the road being built. Mr. Blake had never done a survey of his parcel of land despite the fact that its size was by estimation only.

THE EVIDENCE AT TRIAL

7 The case went to trial without either side commissioning a survey to identify the true boundaries of their adjoining lands; and though it should have become clear to the learned Resident Magistrate very early in the case that the true essence of the complaint involved a boundary dispute, she did not refer the matter to a surveyor as she was empowered to do by virtue of sections 97 and 101 of the Judicature (Resident Magistrate Court) Act (now known as the Judicature (Parish Court) Act). The case therefore, went to trial in the hope that whichever party successfully showed the true boundary would get judgment, as the trespass alleged was said to have occurred on or near the boundaries of both properties.

8 At the trial Mr. Blake gave evidence that the land was purchased in 1983 from Mr. Dyer who was his mother's stepfather and it was conveyed by way of a deed of indenture to the both of them. This common law title was admitted into evidence as exhibit one and a Certificate of Payment of Taxes evidencing the payment of taxes in relation to their portion of the land was admitted as exhibit two.

9 He also gave evidence regarding the adjoining property owners at the time of his conveyance. He stated that to the north of the property is the road from Malvern to Mountainside; to the south is Cyril Dyer, east is David Patrick and west is Cyril Dyer. Further, that when they purchased the land there were no buildings on it and the land was used for farming before he started erecting a building on it in 2009. He went on to tell the court that there is now an unfinished building and a board shop on the premises and that the shop had been on the property since 2008. This shop belongs to his witness Miss Powell.

10 He also told the court that when the property was bought it had fencing around it and that he had to fix it on many occasions. In particular, he said that on the eastern boundary he and Mr. and Mrs. Patrick ran the fence together and that he shares the same corner post with them. The southern and western boundaries he said were also fenced up to 2008 when he came home and found the fence missing.

11 In addition, he told the court that he lived in the United States of America and in March 2008 he received a call, as a result of which he came to Jamaica and went to the premises in Ridge Pen. When he arrived there he was shown a surveyor's peg on his side of the property and a road. He also noticed that the fence to that side was down. However, the fencing to Mr. Patrick's side was intact and the two borders with Mr. Dyer's properties were still intact. He said the fence to the western and southern boundaries of his land was there when he bought the land and he has fixed it many times whilst visiting the island. He said however, that he did not know the length of the fence nor the cost to fix it.

12 He called Miss Powell as his witness in support of his claim. The notes of evidence that were submitted to this court did not include a record of her examination-in-chief, and despite numerous requests, they were not made available to this court up to the time of preparing this judgment. As a result all references to her evidence-in-chief are as gleaned from the judge's findings of fact and from suggestions put to her in cross-examination regarding her evidence-in-chief.

13 Miss Powell's evidence was that she operated a shop and had lived on the land owned by Mrs. Connell, Mr. Dunkley's predecessor in title, for 25 years. In relation to the boundaries, she said that between 2007 and up to the time the road was built, there were two log wood trees, a big one and a small one, a sweetsop tree and a fence in the boundary line between the two properties. She described the fence as being made of wire that was nailed to a number of posts. Her shop she said was also in the boundary line.

14 It was also her evidence that prior to the land being sold to Mr. Dunkley, Mrs. Connell had the land surveyed. She said that at the time the survey was done the fence was in place between the two properties. She said further that she was not present when the land was surveyed but after it was surveyed she saw the steel pegs in the ground and those pegs are still there. She said also that she was given notice to remove from Mrs. Connell's house, which she was renting, and that she moved the night before the road was built and her shop was torn down. It was also her evidence that the house and shop were torn down in 2008 and that was the time that the road was built.

15 She further said that the road was on both parcels of land and that the pegs placed by the surveyor commissioned by Mrs. Connell, were on Mr. Blake's land and not in the boundary line. In cross-examination she said that a fence had been there and that she had pulled the fence to make her board shop. She said there were water pipes beside the shop which went along the fence line.

16 Mr. Dunkley was the only witness for the defence. His evidence was that he lived in Mandeville and had owned the property in Ridge Pen, Saint Elizabeth since October, 2007. He was not familiar with the boundaries to the land before purchasing it from Mrs. Connell. His evidence was that there was no fence between the two properties but he saw the surveyor's peg on the left hand side of his land. He told the court that he didn't cause them to be placed there and that they were still there today. He further told the court that although he bought 3 1/2 acres of land, he had never had it surveyed but had divided the land into five lots for resale. He said he demolished the house which was on the property to facilitate the subdivision. He also exhibited his registered title and the surveyor's diagram in relation to the survey that had been commissioned by Mrs. Connell.

17 It was also his evidence that he hired Mr. Williamson to drive the tractor that was used to cut the road on his land. He told the court that he was present when the road was being built and he took the necessary precaution to ensure that Mr. Williamson saw the pegs and did not damage them while cutting the road. He also denied that the road encroached on Mr. Blake's land. It was suggested to him that there had been trees in the line marking the boundary and his response was that there had been a sweetsop tree in the middle of the road beside the shop that had been there. He maintained however, that there was no fence there and the only indication of the boundary line was the surveyor's pegs. He also said in cross-examination that he relied on the survey diagram to determine the boundaries. He also admitted...