Lethe Estate Ltd and Great River Rafting and Plantation Tour Ltd v Jamaica Public Services Company Ltd
| Jurisdiction | Jamaica |
| Judge | Simmons J |
| Judgment Date | 23 February 2018 |
| Neutral Citation | [2018] JMCC Comm 08 |
| Docket Number | CLAIM NO. 2016 CD 000112 |
| Court | Supreme Court (Jamaica) |
| Date | 23 February 2018 |
[2018] JMCC Comm 08
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
COMMERCIAL DIVISION
Simmons J
CLAIM NO. 2016 CD 000112
and
Mr. Hugh Small Q.C and Mr. Weiden Daley instructed by Hart Muirhead Fatta for the claimants
Mrs. Simone Mayhew and Miss Kimberley Morris for the defendant
Jamaica Public Service Company Ltd. v. Samuels [2012] J.M.C.A. Civ. 42
Anstalt v. Arnold and another [1989] Ch 1
Chaudhary v. Yavuz [2012] 2 All E.R. 418
Hussain and another v. Lancaster City Council [1999] 4 All E.R. 125
Jaggard v. Sawyer and another [1995] 2 All E.R. 189
Jamaica Public Service Company Ltd v. Campbell and Clarke [2013] J.M.S.C. Civ. 22
Rooks v. Barnard [1964] 1 All E.R. 367
Grant v. Motilal Moonan Ltd. and another (1988) 43 W.I.R. 372
Livingstone v. Rawyards Coal Co. (1880) 5 App Cas 25 of 39
Prest v. Petrodel Resources Ltd. [2013] U.K.P.C. 34 .
Section 41 of the Electric Lighting Act
Section 3 of the Law Reform (Miscellaneous Provisions) Act
CPR 8.7 (3),26.1, 64.6 and 71.3
Land law — Easement — Validity
Wayleave agreement — Effect of non registration — Electric Lighting Act s.41
Trespass to land — Acquiescence — Damages
Company law — whether the veil of incorporation ought to be lifted
Interest — whether interest at a commercial rate ought to be awarded
Rule 26.1 (7) of the Civil Procedure Rules, 2002 — Application to vary order or revoke order — draft judgment — overriding objective
This claim arises from the construction of a part of the defendant's 69KV Bogue to Orange Bay transmission line and related equipment (the transmission line) over and on property located at New Milns in the parish of Hanover.
In November 1994 the defendant approached Mr. Francis Tulloch, who is a director and Chief Executive Officer of both claimants, with a view to using lands situated at Brookeville, Lethe in the parish of St. James registered at Volume 1285 Folio 345 of the Register Book of Titles for the erection of transmission towers and power lines.
At that time, Mr. Tulloch was also the registered proprietor of lands situated at Lethe in St. James registered at Volume 1284 Folio 535 (the adjoining property). He also owned two parcels of land situated at New Milns in the parish of Hanover which are now registered at Volume 1283 Folio 504 and Volume 1283 Folio 505 of the Register Book of Titles. Those lands were originally part of all that parcel of land registered at Volume 618 Folio 45 (the parent property).
The correspondence between the parties reveals that although the defendant had initially approached Mr. Tulloch with a view to using his Lethe lands in St. James, it subsequently entered into negotiations with him for a Grant of Easement in respect of the parent property.
A document titled ‘Grant of Easement’ was eventually signed by Mr. Tulloch in respect of the parent property and consideration of five million dollars ($5,000,000.00) paid by the defendant to Mr. Tulloch as settlement for the “easement” in April 1996.
On April 10, 1996 the defendant lodged a caveat in respect of the land for which it had secured the easement.
The first claimant which was incorporated on September 11, 1996 is the owner of all that parcel of land registered at Volume 1283 Folio 504 (the New Milns land).
The second claimant which was incorporated on October 11, 1985 is said to be entitled to possession, use and development of the New Milns land.
The claimants allege that the transmission line was erected on and over the New Milns land without their agreement and now seek various relief against the defendant.
The first claimant has asked the court to grant an injunction requiring the defendant to remove the towers and wires which have been erected on the New Milns land. It is also seeking an order to stop the continuing trespass by the defendant's servants, agents or contractors.
The first claimant has also claimed damages for continuing trespass, continuing nuisance, breach of contract and deceit. It has also claimed special damages in the sum of seven million four hundred and twenty-six thousand nine hundred and thirty dollars. ($7,426,930.00). The second claimant has claimed damages for deceit and continuing nuisance. It has also claimed exemplary damages and special damages for loss of profits in the sum of six million dollars ($6,000,000.00) up to the date of filing of the claim.
The claim for damages for deceit has been withdrawn.
The particulars of claim state that the defendant approached Mr. Tulloch in or about the year 1995 in order to secure an easement for a path over land now belonging to the first claimant which was then owned by Mr. Tulloch.
It further states that Mr. Tulloch negotiated with the defendant on the claimants' behalf on the basis that the easement, if granted, would not damage the businesses operated by them.
It also states that the first claimant received money from the defendant in respect of considerations for the future grant of an easement and other considerations which were agreed.
The particulars indicate that after exhaustive discussions the defendant was informed that the path of the easement should not affect the subdivisions and the finishing point to be used by the claimants' kayaking and other activities.
According to the claimants, Mr. Tulloch and the defendant failed to arrive at an agreement in respect of a route acceptable to both of them.
The claimants have also asserted that after various efforts to arrive at an agreement in respect of a route, the defendant by letter dated March 17, 1997 made a proposal for the location of one of its towers. Mr. Tulloch declined to sign the letter to signify that he was in agreement with that proposal. Mr. Tulloch subsequently fell ill and frequently had to travel overseas for medical treatment.
The claimants contend that the defendant without having done a survey and in the absence of any agreement between the parties established the transmission line on and over the New Milns land.
The claimants have asserted that they are unaware of when the transmission line was installed. The pleadings state that it was after a survey was done in August 2005 following their complaint to the defendant, that they became aware of the nature and implications of the defendant's actions. Specifically, it was stated that the path of the transmission line affected six (6) of the lots in the first claimant's subdivision and not a maximum of three (3) as was agreed between the defendant and Mr. Tulloch.
The defendant in its amended defence states that Mr. Tulloch executed a Grant of Easement over the New Milns land and that at that time, the claimant was not the registered owner of the land and did not hold a beneficial interest.
Notwithstanding that, it asserts that Mr. Tulloch and any subsequent owners are bound by the terms of the Grant of Easement as it runs with the land.
The defendant has also stated that the full terms and conditions of the agreement between itself and Mr. Tulloch can be found in a letter dated, March 27, 1996 written by Mr. J.E. Murray, the defendant's Manager of Engineering Services, and signed by Mr. Tulloch.
The defendant also relies on clause 3 of the Grant of Easement which provides for referral to arbitration if the agreed route of the transmission line needed to be altered and the parties could not agree on a new location. Paragraph 11 of the amended defence states that Mr. Tulloch did not exercise the option to go to arbitration.
The defendant also states that a letter dated, March 15, 1997, signed by Mr. Murray further speaks to matters agreed between it and Mr. Tulloch.
The defendant also asserts that Mr. Tulloch agreed to and/or acquiesced to the routing of the transmission line. The amended defence also states that its towers and transmission lines are visible and as such Mr. Tulloch had constructive notice that they were on the property.
The defendant further states that it acted in accordance with the Grant of Easement, and as such, the claimants have not suffered any loss or damage and are not entitled to an award of exemplary damages.
It has also been pleaded that the matter which is now before the court is statute barred.
The issues that arise for the court's determination are as follows:
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(i) Whether there was an agreement between Mr. Tulloch and the defendant on the pathway or route for the transmission line?
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(ii) Whether there was a valid wayleave agreement between Mr. Tulloch and the defendant?
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(iii) If so, whether the agreement binds the first and second claimants?
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(iv) Whether or not the defendant is liable for breach of contract
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(v) Whether or not the defendant is liable for trespass
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(vi) Whether or not the defendant is liable for nuisance
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(vii) In the event that Court finds that the establishment by the defendant of the transmission line is a trespass, what are the appropriate remedies, given the nature of the structures and the impact of the activity carried on by the defendant;
The claimants' called four witnesses: Mr. Tulloch, Mr. Michael Gordon and Mr. Llewelyn Allen. They also relied on Mr. Gordon Langford, a Chartered Valuation Surveyor, for his expert opinion. The defendant called three witnesses: Mr. David Lawrence, Mr. Blaine Jarrett, and Mr. Brett Bennett. The expert report of Retired Major Patrick Aiken was also tendered into evidence.
A number of agreed documents were tendered and admitted into evidence.
In order to resolve the...
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