Kingston and St. Andrew Corporation v J and O Operators Ltd et Al; J and O Operators Ltd et Al v Kingston and St. Andrew Corporation

• Jurisdiction: Jamaica
• Judge: Panton, P.
• Judgment Date: 25 September 2009
• Neutral Citation: JM 2009 CA 89
• Docket Number: Civil Appeal No. 80; Civil Appeal No. 82 of 2005
• Date: 25 September 2009
• Court: Court of Appeal (Jamaica)

Court of Appeal

Panton, P.; Harrison, J.A.; Marsh, J.A. (Ag.)

Civil Appeal No. 80; Civil Appeal No. 82 of 2005

Kingston and St. Andrew Corporation

and

J and O Operators Limited et al

and

J and O Operators Limited et al

and

Kingston and St. Andrew Corporation

and

Appearances:

Miss Rose Bennett and Mrs. Crislyn Beecher-Bravo, instructed by Bennett and Beecher Bravo for the appellant Kingston & St. Andrew Corporation.

Ransford Braham, instructed by Mrs. Suzanne Risden-Foster of Livingston Alexander & Levy for the respondents J & O Operations Ltd. and others.

Real property - Easement — Whether order granting easements of way and parking to the respondents was an error in law.

Panton, P.

1 These appeals are from a judgment of Anderson, J. wherein he granted certain declarations as to the entitlement of J & O Operations Ltd., Beverley Wong, Eloise Mulligan and Grace Wong (hereinafter, the respondents) to access and to parking facilities in respect of a parcel of land known as Lot C, and barred the Kingston and St. Andrew Corporation (hereinafter, the appellant) from obstructing or impeding such access or from charging for same or for parking. Notwithstanding the granting of an injunction, the learned judge made provision in the order for the parties to negotiate fees to defray the cost of upkeep of Lot C. The hearing of the appeals was a good while ago, but up to April of this year we were receiving written submissions from the parties.

THE CLAIM

2 The respondent J & O Operations Ltd. (J & O) was formerly John R. Wong Ltd. In or about the year 1958, Knutsford Park was subdivided, creating New Kingston, with more than 300 lots in the subdivision. On or about October 2, 1958, the appellant granted subdivision approval, with conditions attached. Subsequent to this granting of approval, another plan was submitted to the Survey Department which approved it, and it was deposited with the Registrar of Titles on January 13, 1960. In the proceedings below this plan was referred to as “the deposited plan”. On that plan are the over 300 lots, the proposed roadways, car parks and other common areas.

3 Lots 26 to 32 are owned by J & O, and are registered at Volume 957 Folios 47 to 53. Lots 33 and 34 are registered in the name Beverley Wong. Lot 33 is registered at Volume 957 Folio 54 while Lot 34 is registered at Volume 957 Folio 55. Lot C, the cause of this suit, is described as a car park, and is registered in the name of the appellant at Volume 1181 Folio 613.

4 According to the amended Statement of Claim, Lot C is paved and asphalted and intersects with St. Lucia Avenue, and is the only access to and from the lots that front on St. Lucia Way to the main road. This claim as to being the sole access is denied by the appellant. The Statement of Claim alleges that the respondents have for thirty years or more used Lot C as a right of way or access way to and from St. Lucia Avenue to their respective lots without let, hindrance and interruption.

5 Lots 22 to 25 registered at (Volume 957 Folios 43–46) are vacant lots owned by J & O and front on Lot C. Immediately behind lots 22 to 33 are lots 10 to 19 which front on Tobago Avenue On the opposite side of St. Lucia Way are vacant lots 42 and 43 (Volume 957 Folios 57 & 58) owned by Eloise Mulligan and Grace Wong respectively, and the only access to these lots is via Lot C, according to the claim.

6 The respondents claim for themselves, their servants, agents, licencees, visitors and tenants easements and/or rights of way and right to park motor vehicles on Lot C, by virtue of the layout of the lots and the fact that Lot C is set out on the deposited plan as the only access to the respondents' lots.

7 The respondents' claim as to entitlement to an easement is multifaceted. Firstly, it is stated as being by implication, and or by reason of necessity. Further, they say that the right has been enjoyed from time immemorial without interruption; alternatively, the period of enjoyment has been for a period of twenty years and upwards before the filing of the action; the respondents and their predecessors in title having enjoyed the rights by virtue of a deed of grant.

8 In July or August, 1999, the appellant placed a barrier and/or guards at the entrance to Lot C, preventing the respondents from parking or having access without payment of a fee. The respondents regard the action of the appellant as unlawful and unconstitutional, and claim that they are entitled to easements and rights of way over Lot C “for the purpose of passing and re-passing by themselves, their servants, agents, licensees, visitors and tenants on foot and with horses, carriages, motor vehicles and other vehicles at all time and for all purposes”. They claim declarations to that effect.

9 In summary, the respondents claim the following declarations:

• (1) the existence of a right of way over Lot C to and from the respondents' lots to St. Lucia Avenue;

• (2) the existence of a right of way over Lot C to and from the respondents' lots to Knutsford Boulevard;

• (3) entitlement to park motor vehicles on Lot C without having to pay a fee;

• (4) the appellant is not entitled to charge or impose a fee on the respondents for parking on Lot C; and

• (5) the appellant is not entitled to obstruct the respondents in entering or exiting Lot C.

In addition, the respondents claim damages for trespass, nuisance and breach of constitutional rights.

9 A. I have observed that whereas a foundation has been laid for the claim for a declaration of entitlement to a right of way as regards access to St. Lucia Avenue, not a word was said in the claim as to the basis for the claim to access to Knutsford Boulevard. The first mention of a right of way thereto is in paragraph 28 (ii) of the Statement of Claim where the right is simply asserted without any basis being stated.

THE DEFENCE

10 The appellant denies that Lot C is the only access to and from the lots that front on Lot C, and state that there is access to and from Lots 22 to 34 from St. Lucia Ave and Tobago Ave. The appellant also denies that there has been user for more than thirty years by the respondents and their servants. The title to Lot C was issued to the appellant on March 13, 1984. Lots 10 to 21 provide parking and access to and from lots 22 to 34 and to and from the supermarket building via St. Lucia Avenue and also via Tobago Avenue.

11 In respect of lots 42 and 43, the appellant states that they are on the opposite side of Lot C, and that it is not true that the only access to them is via Lot C. Specifically, the appellant states that there is access via Grenada Crescent.

12 The appellant denies that the respondents are entitled to an easement and or rights of way and the right to park. Lot C was transferred to the appellant for it to be developed into parking lots for use by the general public. The appellant, at considerable expense to itself, has developed a car park on Lot C and has put in place the infrastructure necessary to regulate orderly use of parking facilities by the public. The appellant denies charging the respondents for access. The appellant says that if the respondents are entitled to access to Lot C, they have no right to possession of all of Lot C so as to deprive the appellant of its beneficial use and enjoyment.

13 The appellant says that it employs car park attendants to oversee collection of the fees between 6.30 a.m. and 6.30 p.m. on weekdays. No fees are charged outside those hours or on weekends. Further, no fees are charged to the respondents, their agents or servants for access to and from Lot C.

THE DEPOSITED PLAN

14 The proposed plan for the subdivision of Knutsford Park indicated that the subdivision was for commerce, service industry, professions, housing, hotel and entertainment. It provided for no fewer than nine car parks, with neighbouring piazzas as well as Private Park and recreation area and a clock tower. The Building Committee of the appellant passed a motion granting approval on October 2, 1958, as stated earlier. The deposited plan referred to in paragraph 2 above shows nine car parks and was deposited with the Registrar of Titles on January 13, 1960.

THE EVIDENCE IN SUPPORT OF THE CLAIM

15 On behalf of the respondents, evidence was given by Misses Beverley Wong and Ena Wong Sam and Mr. Ronald Haddad. Miss Beverley Wong, a daughter of Mr. John R. Wong, is a director and the secretary of J & O. She gave evidence as to the ownership of the lots. J & O owns lots 22 to 32 and 44; she owns lots 33 and 34, while Eloise Mulligan owns lot 42 and Grace Wong owns lot 43. These lots with the exception of those owned by J & O are “mostly empty used for parking”. Lots 26 to 32 house a supermarket which has been operated by Grant Marketing Co. Ltd. since December, 1994. Prior to that, Miss Beverley Wong was co-manager of the supermarket. Lots 22 to 34 front on to Lot C. All the lots numbered 22 to 34 and 42 and 43 were empty in 1968. At that time, she said, the area was undeveloped, with maybe a few cars, people walking and driving. The supermarket was opened in March 1969. During construction of the supermarket, Lot C was used for the delivery of materials as the lots were not developed. When the supermarket opened, the main entrance to the supermarket was on Tobago Avenue or St. Lucia Avenue.

16 Miss Wong said that as of 1994 Lot C has not been used for vehicular access to lots 42 and 43 (owned by Eloise Mulligan and Grace Wong respectively), and there is a chain link fence between lots 42 and 43 on the one hand, and Lot C on the other. Since 2001, J & O, owner of lot 25, has erected a fence and gate between that lot and Lot C. Lot 25, she said, is used for trucks to go to the loading bay, and there is no designated parking space created by the appellant at lot 25. There is access to lot 25 from Tobago Avenue.

17 Lots 22, 23 and 24 are...