Jamaica Public Service Company Ltd v Rosemarie Samuels
| Jurisdiction | Jamaica |
| Judge | Simmons JA |
| Judgment Date | 26 May 2021 |
| Neutral Citation | [2021] JMCA App 15 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO COA2020CV00077 |
| Year | 2021 |
| Court | Court of Appeal (Jamaica) |
SUPREME COURT CIVIL APPEAL NO COA2020CV00077
APPLICATION NO COA2020APP00188
IN THE COURT OF APPEAL
Patrick Foster QC, Miss Tavia Dunn and Francois McKnight instructed by Nunes, Scholefield, DeLeon & Company for the applicant
Sean Kinghorn instructed by Kinghorn & Kinghorn for the respondent
This is an application by the Jamaica Public Service Company Limited, the applicant, for a stay of the execution of the judgment of Nembhard J delivered in the Supreme Court on 25 September 2020, pending the outcome of the appeal in these proceedings. The application was supported by the affidavit of David Fleming filed on 23 October 2020 and his supplemental affidavit filed on 23 November 2020. The respondent, Rosemarie Samuels, opposed the application as set out in her affidavit filed 19 November 2020.
On 24 November 2020, having heard counsel's submissions, I made the following orders:
“1. The application for a stay of the judgment of Justice Nembhard J dated 25 September 2020 is granted on condition that the appellant pays over to the respondent the sum of 20 million Jamaican dollars on or before 23 December 2020.
2. The order for costs made in the judgment is not stayed and the respondent is permitted to proceed to taxation of those costs if they are not agreed.
3. Costs of this application to be costs in the appeal. “
On that occasion, I indicated that my brief reasons in writing would be provided for my decision. This judgment is a fulfilment of that promise.
The applicant is the only entity licensed under the Electric Lighting Act which is authorised to generate, transmit, distribute and supply electricity in Jamaica. The respondent is the registered proprietor of property comprised in Certificate of Title registered at Volume 1213 Folio 789 of the Register Book of Titles, being, Lot 46 part of Rhymesbury in the parish of Clarendon (‘the property’).
On 3 April 2008, the respondent filed a claim against the applicant claiming damages for trespass to the property. It was the respondent's complaint that the applicant trespassed on a portion of the property by unlawfully erecting and maintaining overhead power lines and poles across its perimeter. The respondent, in her affidavit filed on 19 November 2020, stated that prior to her acquisition of the property, she noted that the said overhead power lines and poles had been erected across the perimeter of the property. She later learnt that no easement had been granted to the applicant.
It was also indicated in that affidavit that the respondent had purchased the property for the purpose of rearing chickens in “modernized chicken houses”. The respondent indicated that the presence of the applicant's power lines and poles were not “of any great concern” to her until she tried to use the property for the purpose for which it was bought. Her evidence was that when she attempted to utilize the property as planned, she was prevented from doing so by representatives of the applicant. This conduct, the respondent said, deprived her of the full benefit and enjoyment of the property in that she was constrained to construct four instead of six chicken houses. It was noted by Nembhard J that the loss being claimed by the respondent included: (i) future economic loss; (ii) loss of use of the property; (iii) loss of house appreciation; and (iv) flood protection.
On 29 January 2010, F Williams J (as he then was) granted summary judgment in the respondent's favour as the applicant was deemed to have no reasonable prospect of successfully defending the claim. The applicant appealed. The appeal was refused on the basis that the document which authorized the applicant to enter the property was a contractual licence and had not been registered on the duplicate Certificate of Title for the property. As such, it did not bind the licensee's successors in title and the applicant lost its entitlement to occupy the property on its transfer to the respondent.
The matter was subsequently set down before Nembhard J for damages to be assessed. On 25 September 2020, damages were assessed as follows:
“(1) The Claimant, Rosemarie Samuels, is awarded Damages in Trespass against the Defendant, Jamaica Public Service Company Limited, in the sum of Sixty-Five Million Dollars ($65,000,000.00), with interest thereon at the rate of three percent (3%) per annum, from 9 April 2008 to the date hereof;
(2) The Claimant is awarded Damages against the Defendant in the sum of One Million Five Hundred Thousand Dollars ($1,500,000.00), representing the market value of the area of the land situate at Rhymesbury, in the parish of Clarendon, being the land comprised in Certificate of Title registered at Volume 1213 Folio 789 of the Register Book of Titles, on which the Defendant's equipment was located, as at 20 April 2018, with interest thereon at the rate of three percent (3%) per annum, from 21 April 2018 to the date hereof;
(3) Costs are awarded to the Claimant against the Defendant and are to be taxed if not sooner agreed; a
(4) The execution of this Judgment is stayed for a period of twenty-eight (28) days from the date hereof; and
(5) The Claimant's Attorneys-at-Law are to prepare, file and serve the Orders made herein.”
The applicant, aggrieved by this outcome, filed its notice and grounds of appeal on 23 October 2020 seeking the following orders:
“a. The appeal is allowed.
b. The order that the Claimant, Rosemarie Samuels is awarded Damages in Trespass against the Defendant, Jamaica Public Service Company Limited, in the sum of Sixty — Five Million Dollars ($65,000,000.00), with interest thereon at the rate of three percent (3%) per annum, from 9 April 2008 to the date hereof be set aside.
c. Damages to be assess[ed] by this Honourable Court of Appeal.
d. That the costs of the Appeal [be awarded] to the Appellant/Defendant.
e. Such further and/or other relief as this Honourable Court deems just.”
The grounds of appeal are as follows:
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(i) “The learned judge erred as a matter of fact and/or law in failing to consider that though the claim was for loss of use of land, occasioned by trespass, such a claim included a claim for loss of past income incurred to the date of the assessment and/or completion of the assessment of damages.
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(ii) The learned judge erred as a matter of fact and/or law in finding that the claim for loss of past income was not a specie of special damages and consequently that the said claim for loss of past income need not be specifically pleaded.
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(iii) The learned judge misdirected herself in awarding the sum of Sixty Five Million Dollars ($65,000,000.00) in that she failed to indicate the basis upon which the said sum was arrived at in circumstances where such an award was not supported by the evidence.
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(iv) The learned judge misdirected herself and/or erred in awarding interest on the sum of Sixty Five Million Dollars ($65,000,000.00) from April 9, 2008, in circumstances where she accepted the Respondent/Claimant's evidence that a fourth chicken house was built in 2017 and therefore, the irresistible inference from that evidence was that the Respondent/Claimant would only have been in a position to construct two additional chicken houses from 2017 onwards and consequently, any loss of past income could only have occurred from that year going forward.
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(v) The learned judge erred as a matter of fact and/or law by failing to take into account the Respondent/Claimant's liability to pay income tax in assessing the damages for loss of income and any obligation to pay said tax would be the responsibility of the Respondent/Claimant as required by relevant legislation.
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(vi) The learned judge [erred] as a matter of fact and/or law in failing to consider that the measure of damage for trespass to land is either diminution in the value of the land or the cost of reinstatement.
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(vii) The learned judge having awarded a sum for the diminution in the value of the land misdirected herself in concluding that the Respondent/Claimant was entitled to a further head of general damage [sic] for loss of use in the sum of Sixty Five Million Dollars ($65,000,000.00).”
On the same date, the applicant filed the notice of application for a stay of the execution of the judgment of Nembhard J. The grounds on which the application is based are as follows:
“a. Pursuant to Rules 2.10 (1) and 2.11(1)(b) of the Court of Appeal Rules, 2002, an application may be made to a single judge of the Court of Appeal for a stay of execution on any judgement or order against which an appeal has been made pending the determination of the appeal.
b. The stay is necessary to preserve the status quo and the Applicant's interest therein pending the determination of the appeal.
c. That the Applicant will suffer irreparable harm and loss if the stay of execution is refused since payment of the judgement sum at this stage would imperil the existence and validity of the Appellant company.
d. That if the judgement sum is paid to the Respondent and the Appellant is successful in its appeal, it is highly likely that it will not be able to recover the said judgement sum from the Respondent.
e. That the interest and administration of justice will not be compromised by the stay of the judgement pending the determination of the appeal.
f. That the Applicant has a real prospect of success in the appeal and it is in the interests of justice that the judgement of the Honourable Ms Justice A. Nembhard be stayed until this Honourable Court determines the appeal.”
At the hearing of the assessment of damages it was noted that the trespass had ceased on 11 October 2019. Two witnesses were called on behalf of the respondent and one called on behalf of the applicant....
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