Jamaica Public Service Company Ltd v Enid Campbell and Another

• Jurisdiction: Jamaica
• Judge: Mangatal J:
• Judgment Date: 17 April 2013
• Neutral Citation: [2013] JMSC Civ 22
• Docket Number: CIVIL DIVISION C.L.2001/C-160
• Court: Supreme Court (Jamaica)
• Date: 17 April 2013

[2013] JMSC Civ. 22

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION C.L.2001/C-160

Between

Jamaica Public Service Company Limited

Ancillary Claimant

and

Enid Campbell

1ST Ancillary Defendant

and

Marcia Clare

2ND Ancillary Defendant

EASEMENT/RIGHT OF WAY/WAY-LEAVE — ELECTRIC LIGHTING ACT — SECTIONS 36, 37 — MEANING OF CURTILAGE — TRESPASS TO LAND — ACQUIESCENCE — CIVIL PRACTICE AND PROCEDURE — EQUITABLE DAMAGES ORDERED IN LIEU OF PERMANENT MANDATORY INJUNCTION — DATE FOR ASSESSMENT OF VALUE, DATE OF BREACH OR LOSS OR DATE OF JUDGMENT — CIVIL PRACTICE AND PROCEDURE — DAMAGES — AGGRAVATED DAMAGES DRAFT JUDGMENT HANDED DOWN-PARTY SEEKING LEAVE TO ADDUCE FURTHER EVIDENCE AVAILABLE AT TIME OF TRIAL, BUT LEFT OUT THROUGH INADVERTENCE-COURT'S POWER TO REOPEN JUDGMENT-WHETHER APPROPRIATE TO DO SO-FACTORS TO BE CONSIDERED OF THE SAME NATURE AS THOSE IN APPLICATION TO ADMIT FURTHER EVIDENCE ON APPEAL-IMPORTANCE OF OVERRIDING OBJECTIVE OF DEALING WITH CASES JUSTLY

Mangatal J:

1 In this matter the Claim was struck out by Order dated 8th February 2010. What I therefore have before me for determination is the Ancillary Claim and the Defence and Counterclaim to the Ancillary Claim as amended. The original dispute in this case occurred from as far back as 1994.

2 I must say that I have found the matter to be convoluted and complicated. I express my gratitude to the Attorneys-at –Law who appeared for both sides for the assistance they provided throughout the matter. Not least of the convolutions were the pleadings as they have been very wordy and complex. Written closing submissions by both parties exceeded a hundred and twenty pages (In the case of the Ancillary Defendants, there were 98 pages) and were also supplemented by oral submissions. There were numerous documentary exhibits and over fifty authorities on a wide range of issues were cited in support of the submissions. I sincerely regret the delay in delivering this judgment, which was due to the sheer volume of my workload and the rather complicated, and if I may so, cumbersome nature of this matter.

THE PARTIES

3 The Ancillary Claimant, the Jamaica Public Service Company Limited, ‘J.P.S.’, is an undertaker licensed under the provisions of the Electric Lighting Act (‘the Act’) and empowered, subject to the provisions of sections 36 and 37, to lay, place or carry on, under, or over any land, not being land used as a garden, park, or pleasure ground, or land being the curtilage of a dwelling-house or other similar land in the vicinity of any building, such supply lines, posts and apparatus as are necessary or convenient for the safe and efficient supply of electricity in accordance with the licence granted to JPS. Upon the exercise of these powers, JPS is liable to pay compensation to any such landowner, and in default of agreement, the matter is to be referred to arbitration.

4 The Ancillary Defendants Enid Campbell and Marcia Clare, mother and daughter respectively, (collectively ‘the Owners’), are the registered owners of all that parcel of land being the land comprised in Certificate of Title registered at Volume 1347 Folio 872 of theRegister Book of Titles, being all that parcel of land part of Rock Spring in the Parish of Hanover containing by estimation 71 acres more or less.

THE ANCILLARY CLAIM

5 On or about the 29th of October 1992 the parties executed a Grant of Easement,( ‘the Grant’) which Grant remained undated, in respect of the Owners' land. The terms of the Grant empowered J.P.S. to, amongst other matters, construct, maintain, repair, inspect, remove, replace and operate an electrical transmission and/or distribution line of towers and/or poles, anchors, guys together with all necessary wires, cables, cable installations and other apparatus necessary for the purpose of the transmission and/or distribution of electricity from any of JPS' generating stations through and over the lands as agreed between the parties.

6 Clause 3 of the Grant expressly provided as follows:

In the event of it becoming expedient to alter the route of the transmission and/or distribution line across the said land by reason of any cause beyond the control of the Company, the Grantor and the Company shall mutually agree upon a new location and the Grantor shall grant such new route to the Company and in the event of their failure to agree, the matter shall be referred to arbitration under the Arbitration Law .

7 It was also an express term of the Grant, Clause 2(a), that in the exercise of the rights granted to it, JPS would use its best endeavours to cause as little damage as practicable to the land, and to any trees, vegetation or crops, and to pay the Owners compensation to be agreed between the parties, and, failing agreement, as determined by arbitration.

8 In the Particulars of its Ancillary Claim, JPS pleads at paragraph 5, that on a proper construction of the terms of the Grant the terms did mean and do mean that JPS had a right of way in erecting, carrying out and operating electrical transmission of distribution lines and towers and other appurtenances over the Owners' Lands. Further, that in the event it became expedient to alter the route of the distribution lines, the parties could agree to a new location and in effect JPS could alter the route of the transmission and transmission lines across the Owners' lands with their agreement.

9 At paragraph 6, it is averred by JPS that at the time of the Grant JPS' transmission lines were routed with the agreement of the parties across the rear south portion of the Owners' lands. However, it is pleaded, that ‘due to expediency and the need for the Ancillary Claimant tocomply with required international environmental safety standards, the Ancillary Claimant had no alternative but to re-route the lines on a different path other than the one on which the lines were originally placed, in accordance with clause 3 of the Grant, and in this regard, pursuant to Clause 3 of the Grant, the Ancillary Defendants were duly consulted and advised that the Ancillary Claimant needed to relocate the tower and its lines for environmental reasons and in keeping with international safety standards, and the Ancillary Defendants agreed and acquiesced to the relocation of the lines to its current location on the basis that work on the new location could commence in September 1994. In accordance with that agreement the Ancillary Claimant was duly granted possession of the area of the Grantors' Lands in question by the Ancillary Defendants during the period August-September 1994 and that it was agreed between the parties that construction on the new tower lines would continue pending the preparation of the relevant way-leave documentation and the determination of compensation due to the Ancillary Defendants in accordance with the recommendations of two independent valuators.’

10 Notwithstanding this agreement, the Owners commenced action against JPS on the 10th of August 2001 claiming, amongst other relief, damages for alleged wrongful entry, breach of contract, waste and continuing trespass The Owners were also seeking orders that JPS dismantle and remove all towers, structures, cables and wires alleged to have been unlawfully erected. Subsequent to the filing of the action negotiations, (‘tentative’, according to JPS), were entered into between the parties, the main area of contention being the basis upon which compensation was to be computed. According to paragraph 7 of the Particulars, two main options were discussed between the parties. Firstly, to have JPS' towers and power lines relocated to another section of the Owners' lands and that they be compensated by a one-time fee and that the new arrangement be confirmed by an way-leave agreement. The second option discussed was to relocate the Owners' dwelling house which would require the construction of a new dwelling house of comparable value and design as well as construction of a road by which to access the new home. JPS has indicated that common to both options was the payment of compensation, which early in the negotiations was estimated to range between $1,500,000.00 to $2,000,000.00. This was based on valuations by D.C. Tavares & Finson Realty Limited which conflicted, (according to the Particulars), with a valuation appraisal prepared by CD Alexander & Co. Realty Ltd. dated respectively October 2004 and January 1995.

11 It is JPS' assertion that neither option was feasible because the tower lines were placed in accordance with international standards which JPS is required to comply with. That furtherattempts to change the alignment of the electric lines would require different and more expensive angle tower types and new way-leave arrangements. It is JPS' position that the difficulty and costs to pursue such an option would have been prohibitive and accordingly, the option to relocate the wires and lines was not feasible. Nor was the option to construct a new dwelling house economically viable. It is maintained, however, that at all material times JPS consistently agreed to compensate the Owners at an amount to be agreed based on the quantification of the value of the loss and the property where the lines were placed. The option to relocate the lines was not feasible for the further reason that relocation would require several power outages on the lines to expedite modification work. Additionally, the placement of the lines was done in accordance with specific international codes adopted by JPS relative to the design, construction and operation of the high voltage power lines to ensure the safety of life and property.

12 JPS aver that the negotiations concluded when, at a site visit held on 15th May 2007, attended by technical representatives of JPS, JPS' Attorneys, and Ms. Clare, the 1st Ancillary Defendant, the parties agreed in principle that JPS would compensate the Owners for...