Renford Nunes v Sheron Nunes v Content Solar Ltd

 
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[2019] JMSC Civ 73

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Wolfe-Reece, J. (Ag.)

CLAIM NO. 2017HCV03872

Between:
Renford Nunes
1 st Claimant
Sheron Nunes
2 nd Claimant
and
Content Solar Limited
Defendant

Mr. John Vassell Q.C. and Mrs. Trudy-Ann Dixon Frith instructed by DunnCox for the Claimants

Mr. Kevin Powell and Ms Shanique Scott instructed by Hylton Powell for the Defendant

Civil Procedure and Practice — Application for Summary Judgment-Reasonable prospect of success-Civil Procedure Rule 15.2 — Interim injunction-serious question to be tried — Adequacy of damages-Balance of convenience

Wolfe-Reece, J (Ag.)

BACKGROUND
1

There are two Notice of Application for Court Orders before the court for consideration. It can be described that there exists a symbiotic relationship between the two in that the decision in one will automatically affect the other. The Defendant, Content Solar Limited made an application for summary judgment, and the Claimants, Renford Nunes and Sheron Nunes have applied for an interim injunction.

2

On May 21, 2018 the Claimant filed a Notice of Application for Court Orders for Interim Injunction seeking the following orders:

  • a) An interim injunction restraining the Defendant, by himself or his servant or agents or otherwise howsoever from obstructing, interfering or doing any acts similar thereto, the access road on land known as ALL THAT parcel of land part of RHYMESBURY in the parish of Clarendon containing by survey Two Hundred and Ninety-Eight Acres One Rood Sixteen Perches and Five Tenths of a Perch and being land formerly comprised in Certificate of Title Volume 793 Folio 70 and being ALL the land comprised at Volume 1256 Folio 373 of the Register Book of Titles (“the Defendant/applicant ‘s land”) pending the determination of this claim or until further order by this Honourable Court.

  • b) An interim injunction permitting the claimant, their visitors, servants and or agents to traverse the access road on the Defendant/applicant ‘s land unimpeded and uninterrupted from ALL THOSE parcels of land being parts of RHYMESBURY in the parish of Clarendon together containing by survey Seventy One Acres One Rood and Fifteen Perches of the shape and dimensions and butting as appears on the plan annexed and being part of land comprised in Certificate of Titles registered at Volume 1189 Folio 292 and being ALL the land comprised in Volume 1257 Folio 344 of the Register Book of Titles (“Claimant/respondents’ land) to the public road known as Rhymesbury Main Road in the parish of Clarendon and back again over the said access road on the Defendant/applicant ‘s land from the Rhymesbury Main Road to the Claimant/respondents’ land, for themselves, their servants and or agents, whether on foot, by vehicle and with varied animals, at all times of the year pending the determination of this claim or until further order by the Honourable Court.

  • c) For the purposes of Orders numbered 1 and 2 herein, “the access road” is roadway which measures 9.14 meters wide at a certain point and narrows to 6.1 meters respectively at another point on the Defendant/applicant ‘s land and is shown on Surveyor's Plan prepared by R.L. Wilson, Commissioned Land Surveyor, dated April 19, 2017.

  • d) Costs of this application to be costs in the claim;

  • e) Such and other further relief as this Honourable Court deems necessary.

3

The Defendant responded with an Amended Application for Summary Judgment which was filed on June 29, 2018 seeking the following orders:

Counsel on behalf of the parties have all filed written submission and authorities. Given the nature of the applications, whilst I may not refer to every single authority cited, it is not an indication that it was not considered. The Defendant's/Applicant's application for summary judgment will be considered first as the Court is of the view that the outcome of that application will determine whether it is necessary to consider the Claimant's application for an injunction.

  • a) The automatic referral to mediation be dispensed with in accordance with rule 74.4(1) of the Civil Procedure Rules, 2002.

  • b) The Defendant be granted summary judgment against the Claimant/respondents.

  • c) The costs of these proceedings be awarded to the Defendant/Applicant.

  • d) There be such further or other relief as the court deems just.

DEFENDANTS'SUBMISSIONS
4

Counsel Mr. Kevin Powell commenced his submissions, on behalf of the Defendant and relied on Rule 15.2(a) of the Civil Procedure Rules (CPR) which provides that the court may give summary judgment on a claim if it considers that the Respondent has no real prospect of succeeding on the claim.

5

Counsel referred the Court to what was described as the “principles guiding an application of summary judgment” as set out by Brooks J.A. in the case of ASE Metals NV v Exclusive Holiday of Elegance Limited [2013] JMCA Civ 3. Mr. Powell submitted that on a proper application of the principles summary judgment should be granted against the Claimants. Counsel made specific reference to and quoted Brooks, J.A. who said at paragraph 14–15:

“The overall burden of proving that it is entitled to summary judgment lies on the applicant for that grant. The applicant must assert that he believes the respondent's case had no real prospect of success…Once and applicant/claimant asserts that belief on credible grounds, a defendant seeking to resist an application for summary judgment is required to show that he has a case “which is better than merely arguable”… The defendant must show he has a realistic as opposed to fanciful prospect of success.”

6

Learned Counsel submitted that there are four issues that they propose the court should deal with on the application for summary judgment:

  • I. Whether the Claimants are entitled to the alleged right of way over Content

  • Solar's Property by way of prescription under the Prescription Act 1882.

  • II. Whether the Claimants are entitled to the alleged right of way over Content

  • Solar's Property by way of an easement of necessity.

  • III. Whether the Claimant/respondents are entitled to the alleged right of way over Content Solar's Property by way of an expressed or implied reservation. and

  • IV. Whether the Claimant/respondents are entitled to damages for obstruction to and permanent injunction to restrain interference with the alleged right of way.

7

He submitted that all these issues should be resolved in favour of the Defendant/Applicant Content Solar and consequently summary judgment should be granted against the Claimant.

8

Brooks J.A. further averred that in considering a summary judgment application the court must not conduct a ‘mini trial’ so far as the factual issues are concerned.

9

In addressing the issue of easement by prescription, Mr. Powell submitted that the Claimant/Respondents have not satisfied the requirement set out in Sections 2 and 5 of the Prescription Act 1882 which stipulates that the easement must have been enjoyed for an uninterrupted period of 20 years before bringing the claim.

10

He argued that the mere assertion in the evidence put forward by the Claimant/Respondent that many members of the community had used the access road since the 1950s until around 2005 when a gate was erected by the previous owner of the Applicant's land. at paragraph 15 of the Affidavit of Henry Fenton does not assist the Claimant/Respondents. Mr. Powell posited that even if this assertion was true, it does not create an easement in the Claimant/Respondent's favour and that the authorities establish that it is only an owner of land who can claim an easement over the land of another. (See: pages 172–174 of Commonwealth Caribbean Property Law)

11

Mr. Powell referred to the Commonwealth Caribbean Property Law and Bradley Milton Millingen and another v Lisa Stoddard Millingen 2015 JMSC Civ 261 and submitted that the authorities state that a claim for an easement by prescription cannot be maintained where the same person owns the dominant and servient tenements. Counsel argued that it has been less than twenty years since both the Applicant's property and the Respondent's property were owned by separate individuals and when these proceedings were initiated by the Claimants/Respondents. He further submitted that it was not open to the Claimants/Respondents to argue that an easement was established prior to the mutual ownership of both properties and that it continued thereafter.

12

Counsel therefore concluded that any easement that may have existed prior to January 1993 was extinguished when Content Farms limited became owner of both properties, and that any evidence as to what may have occurred prior to that date is therefore irrelevant. Mr. Powell relied on Malcolm Rowe v Roslyn Bennett and others (unreported) Claim No. 2004HCV00193 in which Campbell J said

“easements are extinguished by unity of seining. If the dominant and servient tenement became vested in the same owner, all easements come to an end…once the easement is destroyed by the unity.even a subsequent severance would not operate to revive it.”

13

In light of the foregoing Counsel submitted that the earliest...

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