New Falmouth Resorts Ltd v Jamaica Public Service Company Ltd

JurisdictionJamaica
JudgeDunbar Green, J
Judgment Date31 July 2017
Neutral Citation[2017] JMSC Civ 112
Docket NumberCLAIM NO. 2012 HCV 06503
CourtSupreme Court (Jamaica)
Date31 July 2017

[2017] JMSC Civ 112

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

Green, J.

CLAIM NO. 2012 HCV 06503

Between
New Falmouth Resorts Limited
Claimant
and
Jamaica Public Service Company Limited
Defendant

Kwame Gordon and Juliet Mair Rose for claimant instructed by Riam Essor and Co.

Symone Mayhew and Kimberley Morris for defendant

Electricity — Supply — Squatters in occupation of premises without consent of owner — whether Electricity supply to premises is trespass to land — The Amended and Restated All-Island Electric Licence 2011

Dunbar Green, J
The Claim
1

The claimant is a company incorporated in Jamaica with registered office at 5 Beverly Drive, Kingston 6 in the parish of St. Andrew. The defendant has authority under the All-Island Electric Licence 2001 (replaced by the Amended and Restated All-Island Electric Licence 2011) for the supply of electricity in Jamaica.

2

The claim is for damages in trespass. It originated by way of Fixed Date Claim Form with supporting affidavit by its Chairman and CEO, Mr James Henry Chisholm. On 16 th September 2013, by order of the court, the Fixed Date Claim Form and supporting affidavit were to be treated as Claim Form and Particulars of Claim, respectively. It was also ordered that the affidavit in response, sworn by Ms Kim Robinson, Attorney-At-Law, on behalf of the defendant company, be treated as the defence.

3

At the commencement of trial the claimant's pleadings were amended to exclude certain parcels of land which had been disposed of by the claimant since the suit. The trial therefore proceeded in relation to lands registered at Volume 1008 Folio 636, Volume 1109 Folio 441, Volume 1109 Folio 442 and Volume 1389 Folio 427 of the Register Book of Titles.

4

The claim concerns lands known as “Orange Grove”, located south of Coopers Pen and Burnwood Beach, registered at Volume 1008 Folio 636 and Volume 1389 Folio 427 of the Register Book of Titles, as well as lands known as “Florence Hall” which adjoins the Trelawny Multi-Purpose Stadium on its southern and western boundaries and is east of the Hague Pen commercial and residential district, being lands registered at Volume 1109 Folio 442 of the Register Book of Titles and lands beside Coopers Pen registered at Volume 1109 Folio 441.

5

The claimant alleges that the defendant:

  • (i) entered into multiple contracts for the provision of service to squatters on the claimant's land and has continued to benefit, gain and earn from the claimant's land and at the claimant's expense and loss;

  • (ii) installed poles, towers, lines, electrical equipment, tools and apparatus on the claimant's lands without permission;

  • (iii) installed and caused its utility lines and/or equipment to be placed on and over the claimant's lands without the claimant's permission;

  • (iv) accessed, occupied and continues to access and occupy illegally lands belonging to the claimant and had misused and continues to misuse the claimant's property;

  • (v) utilized the claimant's land for the purpose of facilitating its collection of information to further its commercial enterprise;

  • (vi) constructed, maintained, repaired, installed, inspected, removed, replaced, serviced, operated and dealt with its poles, towers and lines on and across the claimant's lands;

  • (vii) bushed, cleared, cut down, weeded, destroyed, whacked, removed, changed the landscape of or otherwise dealt with and altered the trees, shrubs, saplings of flowers on the claimant's property so as to establish its poles, towers, lines, electrical equipment, tools and apparatus;

  • (viii) blatantly and deliberately refused to act on or heed the claimant's various notifications to it that the occupiers of its lands were there illegally and without the owner's permission;

  • (ix) knowingly and deliberately facilitated illegal squatters on or before September 1993;

  • (x) had entered into contracts for the supply of electricity with squatters on the claimant's land for the sole purpose of profit, benefit, gain and to earn and income from the claimant's lands;

  • (xi) by its neglect, caused and is causing the claimant severe mental anguish, grave distress, frustration and undue burden daily; and

  • (xii) continues to act in blatant defiance and disregard for the prevailing court orders.

6

Among the orders sought are:

  • (i) that the defendant has trespassed and continues to trespass on the claimant's land;

  • (ii) that the defendant has squatted and illegally occupied, and continues to illegally occupy the claimant's land;

  • (iii) that the defendant be directed to remove the poles, towers, lines, electrical equipment, tools and apparatus from the claimant's land;

  • (iv) damages for trespass; and

  • (v) aggravated and exemplary damages.

The Defence
7

By way of its defence, the defendant:

  • (i) admits providing electricity services to persons resident in or around Coopers Pen, Orange Grove and Florence Hall areas in the parish of Trelawny;

  • (ii) denies erecting poles, towers, lines, apparatus without the claimant's permission for the sole purpose of providing electricity to squatters on the claimant's property;

  • (iii) states that it is under an obligation under its All-Island Electric Licence, 2001 (replaced by the Amended and Restated All-Island Electric Licence, 2011) to supply electricity to any owner or occupier of premises once it is required to do so;

  • (iv) further states that its established policy and regular practice is to require applicants for electricity supply to provide proof of ownership and/or right to possession of property in respect of which electricity supply is requested and that in certain cases where the applicants do not have registered titles or other formal proof of the ownership or right to possession, the defendant has entered into conditional contracts with applicants. These contracts make it a condition that if at a later date, greater title is established for the land by any other person or interest, the defendant would disconnect the supply of electricity and remove its equipment from the premises;

  • (v) sets outs its efforts to comply with the claimant's request for disconnection of supply of electricity to certain customers to include Audrey Brooks, Clive Parris and some 99 defendants named in Claim no 2007 HCV 01202 New Falmouth Resorts Limited v Fitzroy Allen & others;

  • (vi) sets out that it was restrained from disconnecting the supply of electricity to the 99 defendants by order of the court dated 30th March 2012; and

  • (vii) denies acting in deliberate disregard of the claimant's rights.

The Claimant's Evidence
8

The Witness Statement of James Henry Chisholm, filed 26 th September 2014, as redacted in paragraphs 5,9 and 10, was ordered to stand as his evidence in chief. He testified in his capacity as Managing Director and shareholder of the claimant Company. What follows is a summary of the evidence from the claimant.

9

Mr. Chisolm said the claimant is the registered owner of lands comprised in all the titles aforementioned, which he described as parts of Orange Grove, Orange Grove Estate, Florence Hall and New court in Trelawny. The land in issue is located in the Burwood Beach/Martha Brae area of Trelawny, opposite the Royalton Hotel and divided by the new highway.

10

The evidence is that the defendant has provided and continues to provide electricity services to over 100 squatters on the land without the permission, authorization or approval of the claimant. This has been done by installing utility poles, utility lines, metres, electrical equipment, tools and apparatus.

11

The defendant was notified of the alleged trespass by letter dated 11 th October 2003 to which a court order was attached declaring the claimant as owner of the lands and by which the claimant requested that the defendant disconnect the electrical supply and service to Miss Audrey Brooks/Country Club, who was a squatter. This was followed by a Notice to Quit dated 13 th October 2003 to the defendant requiring it to quit and deliver up vacant possession of the claimant's lands. There were also telephone calls and visits to the defendant's offices and pleas to desist from the use and occupation of the claimant's land. In April 2004 the claimant provided the defendant with a pre-checked plan which identified the lands affected. Those actions were all futile as the defendant expanded the use and occupation of the land by issuing new contracts for service.

12

In 2010, the claimant obtained and served on the defendant a court order declaring some 99 occupants of the claimant's land to be trespassers to be evicted. In response, the defendant sought the assistance of the government to remain in occupation and use of the land. The government challenged the court order and sought an injunction to prevent any action by the claimant or anyone including the defendant.

13

Under cross-examination, Mr. Chisolm stated that the last time he visited the land in question was in 2002 and he had been having a problem with squatters since 2003 when he had to evict one Mr. Leon O'Sang.

14

Mr. Chisolm also agreed that he had asked the defendant to take action in relation to Clive and Gloria Parris (volume 1109 folio 441) but subsequently withdrew that request. He admitted that the defendant was requested to delay disconnection on lands beside Coopers Pen, until further notice and to having discussions with a government agency in relation to selling/purchasing a portion of the claimant's land for the squatters.

15

He admitted to being present when the defendant terminated its supply to Audrey Brooks and the Country Club, forming part of Orange Grove (volume 1008 folio 636).

16

When asked how he came to the conclusion that the defendant had supplied the squatters with electricity, his response was that he knew of one metre, that everyone had electricity and also:

I am talking about facilities...

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