Hardware v Levy

• Jurisdiction: Jamaica
• Judge: Edun, J.A.
• Judgment Date: 26 February 1971
• Neutral Citation: JM 1971 CA 19
• Date: 26 February 1971
• Court: Court of Appeal (Jamaica)
• Docket Number: Not Stated

Court of Appeal

Luckhoo, J.A.; Edun, J.A.; Hercules, J.A.

Not Stated

Hardware

and

Levy

Appearances:

Dr. A. Edwards for the appellant.

Roy Taylor for the respondent.

Land law - Licence — Licence to enter land and plant catch crops — Licensee remaining on land after expiry of licence — Licensor thereafter entering land and destroying licensee's cultivation — No right in licensee to damages.

1 Edun, J.A., delivered the judgment of the Court: On January 29, 1971, we gave our decision allowing the appeal and promised to put our reasons in writing. We do so now. The plaintiff (hereinafter referred to as the “respondent”) brought an action in the Resident Magistrate's Court for the Parish of Clarendon claiming damages against the defendant (hereinafter referred to as the “appellant”) for having entered upon and destroyed the respondent's cultivations growing upon lands owned by the appellant and without having given the respondent notice to quit. At the trial the appellant admitted that he had re-entered his land and cut down catch crops but said (i) that he had allowed the respondent to occupy an acre of his land rent free for the purpose of planting and reaping one only catch crop, and (ii) that without any further permission or agreement the respondent planted further crops despite requests for him to remove from the land.

2 The learned resident magistrate gave judgment for the respondent and in a part of his reasons stated that: (i) the appellant agreed to allow the respondent to use and occupy a portion of his land to plant catch crops; (ii) in pursuance of that agreement the respondent went into occupation of about one acre, rent free, as from September, 1968, but no date was agreed upon when the respondent should quit the premises, and no notice to quit and deliver possession was served by the appellant on the respondent.

3 Learned counsel for the appellant submitted that the agreement between the parties did not establish a contract of tenancy or an excepted holding within the meaning of ss.2 and 8 of the Agricultural Small Holdings Law, Cap. 8. When, therefore, the facts of the instant case were examined the learned resident magistrate did not direct his mind correctly to the real issues. Learned counsel for the respondent on the other hand submitted that whether or not the agreement between the parties established a contract of tenancy or an excepted holding there was at least a licence created and there was some evidence that the respondent did plant catch crops with knowledge of the appellant. He urged that the respondent was therefore entitled to reasonable notice to reap his crops and as the teamed resident magistrate found that the respondent received no notice he, the respondent, was entitled to damages for his cultivations so destroyed.

4 We are of the view that on a proper consideration of the relevant provisions of the Agricultural Small Holdings Law the agreement between the parties did not establish a contract of tenancy or an excepted holding, because there was undisputed evidence which showed (i) that the act of the appellant in permitting the respondent to occupy his land was one of indulgence, out of charity and grace, and that (ii) there was no intention in the parties of creating the relationship of landlord and tenant between them. But the question whether or not the appellant was justified in re-entering his and and cutting down the cultivations thereon can only be answered by a careful examination of the evidence and the findings of the learned resident magistrate.

5 Mr. Eric Chambers, a barrister-at-law, gave evidence on oath on behalf of the appellant. He said that between the period of January to July 1969 he visited the appellant's land on several occasions as his aunt was interested in buying it. In February 1969 when accompanied by a brown man he asked the respondent if the cultivations on a portion of the land were his, the respondent replied that it was but he (the respondent) understood that the brown man had bought the land. The brown man replied that it was so, where-upon the respondent said he got notice to leave and he wondered if the new owners would allow him to stay when they took over the land. Mr. Chambers replied that he could not then discuss the matter.

6 In April 1969 Mr. Chambers said he again visited the land and observed new things such as corn, yams, oranges, breadfruit and mangoes planted. He asked the respondent how it was that he had planted permanent crops when he was supposed to be off the land. The respondent replied that he was not coming off the land and that he (Chambers) could go and do what he liked. In May 1969 he made another visit and noticed the cultivations cut down. Under cross-examination by counsel for the respondent Mr. Chambers said: “It was in February 1969 plaintiff told me that he got notice. I am not mistaken. He never told me how he got notice.”

7 The learned resident magistrate did not say whether he accepted or rejected Mr. Chambers' evidence but found that the respondent “got no proper notice to quit”. We are not for one moment saying that the learned resident magistrate was not entitled to reject the evidence given on oath by a barrister-at-law, or by any witness for that matter, but in the face of the respondent's own admission we are at a loss to know on what basis he...