Morrison (Eurtis) v Erald Wiggan and Hyacinth Wiggan
| Jurisdiction | Jamaica |
| Judge | FORTE, P. , K HARRISON, J.A : , HARRIS, J.A. (Ag.) : , FORTE, P . |
| Judgment Date | 03 November 2005 |
| Neutral Citation | JM 2005 CA 62 |
| Judgment citation (vLex) | [2005] 11 JJC 0308 |
| Court | Court of Appeal (Jamaica) |
| Date | 03 November 2005 |
CIVIL PROCEDURE - Trial Judge's findings - Jurisdiction of Court of Appeal
I have read in draft the judgment of K. Harrison, J.A., and I agree with the reasons and conclusions therein and have nothing further to add.
This is an appeal from the judgment of Mrs. Justice Marva McIntosh, delivered on the 18 th day of February 2000. The plaintiffs ("the respondents") brought an action against the defendant ("the appellant") for negligence arising out of certain representations that were made by the appellant to them with respect to the survey of a lot of land. The respondents succeeded and were awarded damages in the sum of $5,400,000.00 with interest thereon, and costs to be taxed, if not agreed.
The respondents, Mr. and Mrs. Erald Wiggan are Jamaicans who lived in England for many years. They had purchased from Mr. Roy Meikle, Lot 90 part of land situate at Greenwich Park in the Parish of St. Ann and registered at Volume 1183 Folio 697 of the Register Book of Titles.
The respondents returned to Jamaica in 1994 in order to commence construction of their dwelling house on the said Lot 90. An architect was consulted and was taken to the lot by Mr. Wiggan. He showed him where he wished to build. Mr. Wiggan decided however, to seek confirmation of the exact location of the lot before they began construction. Mr. Roy Meikle was contacted and he referred them to the appellant, since he was the commissioned land surveyor, who had done the subdivision of Greenwich Park.
The respondents held discussions with the appellant at his office in or around May 1994, and requested him to identify Lot 90. They visited the land and the appellant searched for the survey pegs and took measurements.
The respondents contend that their lot was pointed out to them by the appellant and as a consequence of his advice to them, they began construction of the dwelling house in 1994.
In 1995, Mr. Wiggan discovered that he was constructing the house on Lot 91 instead of Lot 90. He promptly returned to the office of the appellant, explained his dilemma to him and requested that he re-visit the lot in order to reconfirm the boundaries.
On the appellant's return to the land he realized that Mr. Wiggan was indeed building on the wrong lot. The appellant promised Mr. Wiggan however, that the error would be "sorted out" with the owners of Lot 91 but his promise never materialized.
The building which was 40% completed had to be demolished and this resulted in considerable loss to the respondents.
On the 21 st August 1996, the respondents filed a claim in negligence in the Supreme Court against the appellant. They sought damages for the loss suffered.
The appellant contended on the other hand, that he was not negligent. He said that he met the respondents when they visited his office in May 1994. He agreed that they told him of the lot they had purchased at Greenwich Park and that they wanted him to do a survey of the land. He made arrangements with the respondents to do the survey. He visited the land, found pegs, and took measurements of the boundary along the roadway.
Whilst they were still on the premises, a dispute arose between Mrs. Wiggan and him about the survey pegs at the back of the premises so he did not complete the survey. He said he told Mr. Wiggan to have the premises "bushed" and that he would return another day to "straighten" out the problem.
The appellant further contended that he did not see the Wiggans again until one year later when Mr. Wiggan came to his office and told him that someone who lives in the subdivision had informed him that he was building on the wrong lot. Mr. Wiggan requested him to return to the land. He was paid one half of his fees by Mr. Wiggan in order for him to do a relocation or redefinition of the boundaries. They returned to the lot and after carrying out a further examination of the boundaries he confirmed that the building was constructed on Lot Number 91.
The appellant said he asked Mr. Wiggan why he "jumped the gun" but he told him that he would try and help him. He promised to ascertain the name of the owners of Lot 91 and to see if they would sell him (the appellant) the lot. He wrote several letters to the owners of Lot 91. They eventually informed him that they were not interested in selling the lot and demanded that the respondents vacate the land.
Two grounds of appeal were originally filed. Ground 1 complained that the learned trial judge erred in finding on the evidence that what the respondents commissioned the appellant to do was to survey and identify the boundaries of Lot 90, and not to carry out the more detailed process of re-establishing the boundaries as outlined by the respondents' expert witness.
Ground 2 further complained that the learned trial judge also erred in finding that the procedures set out by the respondents' expert witness were the proper procedures to be employed under the circumstances.
Both grounds were argued together by Mr. Martin. He submitted that the learned trial judge erred in holding that because the appellant did not carry out the re-establishment/re-definition of boundaries procedure in 1994, he was negligent and this caused him to identify the lot incorrectly. Furthermore, he submitted that it was not pleaded in the Statement of Claim or stated by the respondent Erald Wiggan in his evidence, that the respondents had requested the Appellant to carry out a survey to re-establish the boundaries.
Mr. Batts submitted however, that the distinction between re-establishment of the boundary and identification of boundaries is quite irrelevant. It is common ground he said, that this was a subdivision which was pegged by the appellant and when he was contacted by the respondents to point out Lot 90 to them he did so. He submitted that whether or not the appellant did so by identifying or establishing the boundaries, this was not germane to the issues to be decided.
Mr. Batts further submitted that the appellant did not challenge the evidence of the respondents' expert witness, hence the learned trial judge's findings of fact were correct when she stated:
"Mr. Spencer a Commissioned Land Surveyor in his evidence related the proper procedures that should have been followed in carrying out a survey of the type requested by the plaintiffs - it is clear that these procedures were not the ones employed by the first defendant and that resulted in the wrong lot being identified. I accept Mr. Spencer as being an expert in his field and accept his evidence which was unchallenged by the defendant."
Five supplemental grounds of appeal were filed by the Appellant and they are set out hereunder.
Supplemental ground 1 complained that the learned trial judge erred in finding that the appellant had completed the survey work and had given his professional opinion as to the location of the lot boundaries, pointing them out on his first visit to the property, solely on the basis of the uncorroborated testimony of Mr. Wiggan.
Mr. Martin submitted both orally and in his skeleton arguments, in respect of this ground that in the absence of a letter or report referred to by the respondents' expert witness, that the balance of probabilities rested in favour of the Appellant that he had not pointed out the boundaries. He further submitted that since there were no discussions about fees, there was also the probability that the Appellant had not completed the survey.
Mr. Batts submitted on the other hand, that the learned trial judge's finding that the appellant had given his professional opinion and pointed out the boundaries in 1994 was correct and was amply supported by the evidence for the following reasons:
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(a) The absence of a written report or letter was consistent with the waiver of fees and the Appellant's failure to give this report or letter is further evidence of his less than professional approach to the matter.
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(b) The non-payment of a fee was adequately explained by the first respondent who stated that in 1994 when he wanted to pay, the appellant declined to collect because the pegs were already in place. Furthermore, the appellant admitted that it was not unusual for him not to collect a fee "up front".
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(c) There was evidence that the respondent in 1994 asked how much was owed but that fee was waived.
The appellant complained in supplemental ground 2 that the learned trial judge also erred in rejecting the appellant's evidence that he told the respondents on his first visit to the property that "something was wrong", and that he would return to the land another day after it was cleared in order to complete the survey of the lot.
Mr. Batts submitted however, that the trial judge's rejection of the appellant's evidence that in 1994 he told the respondent something was "wrong" is perfectly understandable and correct because:
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(a) Counsel for the respondent had put to the appellant that he did not say something was wrong. The question asked was: "It wasn't true that it was finding no peg that you advised the plaintiff that something was not correct". The answer given was: "It is true." The first respondent's evidence is that the "something is wrong" statement occurred in 1995 when the appellant returned to the land. Furthermore the respondent had denied that such a statement was made...
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