Patrick Woolcock and Another v David Geoffrey Sykes and Another
| Jurisdiction | Jamaica |
| Judge | Phillips JA,Brooks JA,Mangatal JA |
| Judgment Date | 19 December 2014 |
| Neutral Citation | JM 2014 CA 128 |
| Docket Number | CIVIL APPEAL NO 137/2009 |
| Court | Court of Appeal (Jamaica) |
| Date | 19 December 2014 |
[2014] JMCA Civ 52
JAMAICA
IN THE COURT OF APPEAL
SUPREME COURT
The Hon Miss Justice Phillips JA
The Hon Mr Justice Brooks JA
The Hon Miss Justice Mangatal JA (Ag)
CIVIL APPEAL NO 137/2009
and
and
Raphael Codlin and Miss Anishka Biggs instructed by Raphael Codlin & Co for the appellants
Mrs Daniella Gentles-Silvera and Miss Sidia Smith instructed by Livingston Alexander & Levy for the respondents
TRESPASS - Public nuisance - Damages - Whether there was insufficient evidence of private nuisance - Whether the sum awarded as damages for trespass and nuisance were not supported by the evidence
I have had the opportunity of perusing the draft reasons for judgment of my learned sister Mangatal JA (Ag) and commend her for her thorough, comprehensive review of the various issues on appeal. I entirely agree with her reasoning and conclusion and have nothing I can usefully add.
I have read, in draft, the judgment of my learned sister Mangatal JA (Ag). I agree with her reasons and conclusion and have nothing to add.
Mangatal JA (Ag)
This is an appeal from the judgment of Cole-Smith J delivered on 23 September 2009 whereby she gave judgment in favour of the respondents as follows:
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‘1. The Claimants be awarded damages in the sum of $13,500,000.00 being:
a) $10,000,000.00 in respect of Trespass; and
a. $3,500,000.00 in respect of Public Nuisance.
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2. The 3 rd and 4 th Defendants remove the open air bathrooms and any other structure constructed by the 3 rd and 4 th Defendants which currently encroaches on the Claimants' land within ninety days from the date hereof;
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3. Judgment for the Claimants on the 3 rd and 4 th Defendants' Counterclaim;
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4. Costs to the Claimants on the Claim and on the Defendants [sic] Ancillary Claim if not agreed to be taxed.’
The respondents are the registered owners of land known as Firefly, on Norman Manley Boulevard, Negril in the parish of Westmoreland, being the land comprised in certificate of title registered at Volume 1150 Folio 693 of the Register Book of Titles. The respondents became registered owners in October 1978.
The respondents' land is on the Negril coast line. They are in the business of tourism and are shareholders and directors of Firefly Limited which operates a hotel known as ‘Firefly Cottages’ on their land.
The respondents were the claimants in the court below. The further amended particulars of claim stated, and the further amended defence admitted, that Stafford Phillips and Vanessa Masciantonio were registered proprietors of land adjoining the respondents' land on its southerly side being the land comprised in certificate of title registered at Volume 608 Folio 26 of the Register Book of Titles. The appellants were purchasers or prospective purchasers of part of the land owned by Mr Phillips and Ms Masciantonio and are occupiers of that portion of land. At the commencement of the claim below, Mr Phillips and Ms Masciantonio had been named as the 3 rd and 4 th defendants, however suit was discontinued against them both over time.
It was the respondents' case that on or about 20 August 1995, the appellants commenced construction of a wall on the respondents' land without their knowledge and/or consent. It was alleged that the appellants also constructed an extension to a building on their land, which extended beyond the boundary of the land occupied by them and onto the respondents' land.
It was alleged that throughout the period from January 1996 to March 2002 the appellants played loud music from their premises, which disturbed the respondents and their guests.
It was claimed that in or about January 1996, the appellants' agent Mr Lloyd Patterson, assaulted the 2 nd respondent.
The respondents averred that the 1 st appellant and/or his agents and/or servants have, from 2002 and onwards, dumped raw sewage at different times at the boundary of the respondents' land, and that this caused a pungent odour to pervade the respondents' land. This thereby affected the comfort and enjoyment of the respondents and their guests.
The respondents stated that the 1 st appellant and/or his servants or agents have, from 1997 to the present, engaged in burning rubbish close to the respondents' boundary thereby affecting their comfort and enjoyment and that of their guests.
It was further alleged by the respondents that the appellants demolished the respondents' boundary wall, which was built within the respondents' boundary, without their consent. It was also contended that the appellants have engaged in the construction of two open air bathrooms which currently occupy part of the respondents' land, without their consent.
It was also alleged that the appellants and/or their servants and/or employees entered upon the respondents' land at various times since 1995 without their consent and destroyed property belonging to the respondents.
The respondents contended that as a direct result of the wrongful actions of the appellants, the respondents and their business Firefly, have suffered loss, financial loss and damage.
For their part, in their defence, the appellants denied that they are liable to the respondents as alleged or at all. The 1 st appellant is the managing director and the major shareholder of the 2 nd appellant. They further stated that the 1 st appellant is the registered proprietor of land currently registered at Volume 1326 Folio 576 of the Register Book of Titles, which was land formerly part of that which was registered at Volume 608 Folio 26 of the Register Book of Titles. The 1 st appellant stated that he purchased the land from Ms Masciantonio in or about 1995. It was averred that the respondents own the property to the north of the 1 st appellant's land.
It was the appellants' case that the 1 st appellant in or about 1995 constructed a wall between his land and the respondents' land. This wall, the 1 st appellant stated, extended along part of his northern boundary, and extended to the high water mark. However, the respondents complained that the wall was constructed on the public beach, and the 1 st appellant pulled down the wall.
The 1 st appellant obtained a survey from Mr Hartley Campbell, commissioned land surveyor. This survey confirmed that the wall constructed was on the boundary between the 1 st appellant's land and the respondents' land. The appellants averred that the boundary between the 1 st appellant's land and the respondents' land, as set out by Mr Campbell, was accepted by all, save that the 1 st appellant's land continued down to the high water mark in a straight line.
In or about 1995 the 1 st appellant constructed a wooden bar and some showers which the appellants maintained were within the boundaries of the 1 st appellant's land.
The appellants stated that in or about March 2003 there was another survey of the land done by Anthony Allison & Associates.
On or about July 2003 the respondents constructed a 10 foot wall, raising the height of part of the wall previously constructed by the 1 st appellant. However instead of going down in a straight line to the high water mark, in the vicinity of the bathrooms constructed by the appellants, the appellants averred that the respondents encroached on to the 1 st appellant's property for about 20 feet. Further the respondents constructed a chain link fence up to the high water mark.
The appellants claimed that in October 2003 the 1 st respondent came with police officers and entered the 1 st appellant's land. They alleged that he and his servants and/or agents knocked down a part of the bar which extended over the boundary into the respondents' land.
In or about 2003 officials from the Negril Green Island Area Local Planning Authority visited the land and removed the concrete fence and chain link fence that had been constructed by the respondents.
The appellants maintained that the respondents' destruction of their bar was unlawful, and claimed damages for the replacement of the bar and for loss of profit.
The respondents also claimed against the appellants for sundry acts of alleged nuisance, all of which the appellants have denied.
The appellants are satisfied with the learned trial judge's finding of law that ‘there was insufficient evidence of the private nuisance in respect of the rubbish thrown on the Claimants' land and the existence of a noxious smell emanating from the pit’. Save for that finding the appellants are challenging all other findings of law made by her Ladyship. The grounds of appeal and orders sought are as follows:
‘The Grounds of Appeal are:
i. The learned judge misdirected herself when she held that the wall constructed by the [appellants] had encroached on the respondents' property in circumstances which suggest that the encroachment had ceased to exist up to the time of judgment.
ii. The learned judge having failed to stipulate her findings as to the time of the encroachment misdirected herself as to the proper law to be applied since her findings of fact are not stated with clarity in order that one may determine the exact nature of those findings.
iii. The learned judge misdirected herself in finding that there was an open air bathroom encroaching on the [respondents'] land, where the [respondents] did not provide any evidence of such an encroachment.
iv. The learned judge ordered that damages be paid to the respondents by the [appellants] in the sum of Ten Million Dollars ($10,000,000.00) for...
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