Jamaica Public Service Company Ltd v Rose Marie Samuels
|Harris JA,Mcintosh JA,Brooks JA
|28 September 2012
|SUPREME COURT CIVIL APPEAL NO 25/2010
|Court of Appeal (Jamaica)
|28 September 2012
 JMCA Civ 42
IN THE COURT OF APPEAL
The Hon Mrs Justice Harris JA
The Hon Mrs Justice McIntosh JA
The Hon Mr Justice Brooks JA
SUPREME COURT CIVIL APPEAL NO 25/2010
Patrick Foster and Miss Tavia Dunn instructed by Nunes Scholefield DeLeon & Co for the appellant
Sean Kinghorn and Dale Staple instructed by Kinghorn & Kinghorn for the respondent
TRESPASS - Damages - Claim for damages for trespass - Knowledge of presence on land - Estoppels - Damages for trespass - Constructive notice - Easement
I have read, in draft, the judgment of Brooks JA. I agree with his reasoning and with his conclusion and have nothing further to add.
I too have read the draft judgment of Brooks JA and agree with his reasoning and his conclusion that this appeal be dismissed.
In or about 2003, Ms Rose Marie Samuels entered into an agreement to purchase land at Rhymesbury in the parish of Clarendon. During the course of the transaction, she became aware that there were wires and towers traversing a portion of the land. These were for the transmission of electricity and are owned by the Jamaica Public Service Company Limited (JPS), the holder of a licence to supply electricity to the public.
JPS asserted that its equipment was on the land by virtue of an agreement that it had had with Mr Hubert Melville, a previous owner of the land. It was with Mr Melville's widow Hermine, who was also his successor in title, that Ms Samuels had contracted to purchase the land.
Having been made aware of the presence of the equipment, Ms Samuels ascertained that there was nothing registered on the title for the land, which addressed that presence. She completed the purchase and, on 3 April 2008, filed a claim against JPS for damages for trespass and for the removal of its equipment from the land. JPS filed a defence denying the trespass, relying on the agreement with Mr Melville and asserting that Ms Samuels, having purchased with knowledge of its presence on the land, was estopped from denying its right to remain.
On 19 January 2010, F. Williams J (Ag), as he then was, granted Ms Samuels summary judgment, declared JPS' presence as constituting a trespass on the land and gave Ms Samuels permission to assess damages arising from the trespass. JPS has appealed against that judgment.
The question raised by this appeal is whether Williams J properly rejected JPS' defence and granted summary judgment for Ms Samuels. The law on the point has evolved over the years and a review of that evolution would assist the analysis. It may be helpful, before embarking on the analysis, to set out, for context, the grounds of appeal.
Nine grounds of appeal were filed. They are:
‘ (i) The Learned Judge erred, in law, in that he failed to consider that the Claimant, at the time of purchase, was aware of the fact that the Appellant/Defendant had its equipment on a portion of the property and was in occupation thereof.
(ii) The learned judge erred as a matter of law and/or fact in that he failed to consider [sic] the occupation of the property by the Appellant/Defendant was constructive notice to the Respondent/Claimant.
(iii) The learned judge erred as a matter of law and/or fact in that he failed to consider that the Appellant/Defendant was in occupation of the lands pursuant to an agreement with the previous owner, Mr. Melville.
(iv) The learned judge erred as a matter of law in failing to consider that legal and/or equitable rights would have accrued to the Appellant/Defendant by virtue of its occupation of the property with the agreement of the previous owner.
(v) The learned judge erred as a matter of law in that he failed to consider that an easement existed in favour of the Appellant/Respondent [sic] by virtue of the common intention of the Appellant/Respondent [sic] and Mr. Melville, the previous owner.
(vi) The learned judge erred as a matter of law and/or fact in finding that the Appellant/Defendant is a trespasser.
(vii) The learned judge erred as a matter of law and/or fact in finding that the Appellant/Defendant has no real prospect of successfully defending the claim.
(viii) The learned judge erred as a matter of law and/or fact in finding that the Respondent/Claimant had a real prospect of succeeding on the claim.
(ix) The learned judge erred as a matter of law and/or fact in finding that the Respondent/Claimant's statement of case disclosed reasonable grounds for bringing the claim.’
The grounds of appeal will not be considered separately as they fall within the context of the issues that will be identified after an outline of some other pertinent facts.
There is little dispute as to fact in this matter. There is, however, some additional information, by way of background, which is relevant to the discussion.
One important factor, by way of information, concerns the document on which JPS bases its entitlement to resist Ms Samuels' claim. The document is entitled ‘Grant of Easement’ and is said to have been made on 4 October 1996. The document asserts that, Mr Melville, in consideration of the payment by JPS to him, of the sum of $20,000.00, granted to JPS the right to construct, maintain, repair, inspect, remove, replace and operate its towers and lines across his land. Other rights, complementary to those, were also granted to JPS. Mr Melville also agreed to refrain from using his land in a manner which would derogate from the entitlements afforded to JPS. The critical clauses in the document, for these purposes, read as follows:
‘…the Grantor [Mr Melville] as beneficial owner HEREBY GRANTS to the Company [JPS] the easement liberties and rights [summarised above] in through and over the said land TO HOLD the same UNTO and TO THE USE of the Company its successors and assigns to the intent that the grant hereby made shall run with the said land and be binding on the owner or owners for the time being of the said land or any part thereof .
1. For the consideration aforesaid the Grantor hereby covenants with the Company ( to the intent that the said covenants shall run with the said land ) as follows:-
4. If and so far as these presents may at any time for any reason fail to be effective as a grant of easement the same shall be construed as granting to the Company a licence comprising such of the rights and liberties herein mentioned as may fail to be effective as easements .’ (Emphasis supplied)
Another important factor to be considered is that, although JPS was entitled, by virtue of section 41 of the Electric Lighting Act, to have the document registered on Mr Melville's title for the land, it did not do so. Once the title had been transferred to his widow, JPS was precluded, thereafter, from registering that document and it made no further agreement with Mrs Melville, concerning its use of the land.
There are also some defects in the document, which was the subject of much comment by the learned judge as well as, during this appeal, by Mr Kinghorn, on behalf of Ms Samuels. These defects as well as the issues concerning easements, licences, constructive trusts, the Registration of Titles Act and the Electric Lighting Act will be considered in turn, in the course of this judgment. I shall first turn to the effect of the document.
There is no dispute that the document contained gaps and omissions. Firstly, the land was described in only the most general terms and the places reserved, on the document, for the insertion of the volume and folio numbers for the title, were left blank. Secondly, there was a reference to a plan, which should have been attached to the document, and there was no such plan attached. Thirdly, there was a marginal note in handwriting which stated ‘easement signed subject to signing of drawing’. There was no drawing attached. Nor was there any evidence that such a drawing either existed or had been signed.
Mr Kinghorn, both in his written submissions and orally, argued that the document was too uncertain to create a binding contract between Mr Melville and JPS. He addressed matters such as the certainty of parties, certainty of subject matter and the certainty of the terms of the agreement. Learned counsel cited authorities dealing with these issues and concluded that the document failed as a valid and legally binding document. Williams J arrived at a similar position. He found, at paragraph 15 of his judgment, that ‘the subject matter of the document cannot clearly and definitively be identified’. Based on that finding, he adopted the stance that ‘there is no contract enforceable in law’.
With the greatest of respect to the learned judge and to Mr Kinghorn, those views are not sustainable. The law relied on by the learned judge and Mr Kinghorn, addresses the matter of executory contracts. That is not the situation that exists in the instant case. Not only was the consideration paid to allow the construction to take place, but the construction did take place and was in existence for years, for all to see.
This was an executed contract. All that was left undone in respect of it were the continuing obligations requiring Mr Melville to allow JPS access to the land and restricting him from constructing certain structures close to JPS' equipment. It is inconceivable, had a dispute arisen with JPS during his lifetime, about those continuing obligations on either side, that Mr Melville would have succeeded in raising issues of uncertainty of the location of the land, positioning of towers and the like.
Mr Kinghorn referred us to the learning in Halsbury's Laws...
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