Smith (Amybelle) v Noel Smith

• Jurisdiction: Jamaica
• Judge: SMITH, J.A. , HARRISON, J.A. , Harris, J.A. , SMITH, J.A.:
• Judgment Date: 24 April 2009
• Neutral Citation: JM 2009 CA 33
• Judgment citation (vLex): [2009] 4 JJC 2404
• Court: Court of Appeal (Jamaica)
• Date: 24 April 2009

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE SMITH, J.A THE HON. MR. JUSTICE HARRISON, J.A THE HON. MRS. JUSTICE HARRIS, J.A. (Ag.)

BETWEEN

AMYBELLE SMITH

APPELLANT

AND

NOEL SMITH

RESPONDENT

Mr. Debayo Adedipe instructed by Clarke, Nembhard & Co. for the Appellant.

Mrs. Janet Taylor instructed by Cecil July for the Respondent.

EASEMENTS - Crops - Malicious destruction of crops planted on right of way - Damages - Fair hearing

SMITH, J.A.

I have read the judgment of Harrison, J.A. I agree with his reasoning and conclusion. There is nothing further I wish to add.

HARRISON, J.A.

1 This is an appeal from a judgment of Her Honour Miss Marlene Malahoo, Resident Magistrate for the parish of St. Elizabeth. On September 8, 2004 she awarded damages in the sum of $70,400.00 in favour of the plaintiff Noel Smith (the respondent) against the defendant Amybelle Smith (the appellant) for destruction of a quantity of pumpkin and pepper crops. On March 22, 2006 we dismissed the appeal and ordered costs in the amount of $15,000.00 to the respondent. We had promised then to put our reasons in writing for dismissing the appeal but regrettably this was not done due to an oversight. We unreservedly apologize for the delay and now seek to fulfill our promise.

2 The facts are relatively straightforward. The plaintiff, a farmer, cultivated pumpkins and peppers on his farm at Burnt Savannah, St. Elizabeth. On April 25, 2000 he visited the farm and saw the defendant enter his property and there destroy vines bearing pumpkins and pepper plants. He made a report to the police and thereafter got Mr. Powell, a valuator, to do a valuation of the crops destroyed. The defendant was served with notice of the valuation but did not attend the valuation on the appointed date. The plaintiff thereafter filed a plaint against the defendant in the Black River Resident Magistrate's Court and claimed damages for Malicious Destruction of Property.

3 The defendant in her defence denied destroying the crops and asserted that the crops were planted on a roadway over which she had a right of way. She stated that while she was using that right of way she tripped over some pumpkin vines, which she pulled out and threw in the adjoining land. She had counterclaimed against the respondent in trespass and for wrongful obstruction of the right of way. These allegations were denied by the plaintiff.

4 The matter came up for trial on September 8, 2004. Mr. Paul Nembhard, the Attorney-at-law for the defendant was absent due to illness. Mr. Samuel Smith who held for Mr. Nembhard requested an adjournment but this application was refused by the learned Resident Magistrate. The trial proceeded with Mr. Smith defending the appellant but she was unsuccessful. The learned Resident Magistrate stated in her reasons for judgment, that she had accepted the evidence of the respondent. The appellant on the other hand, did not impress her as a witness of truth. In respect of the counterclaim, the learned Resident Magistrate found that no right of way had existed in the area cultivated by the respondent.

5 The defendant was dissatisfied with the judgment and filed Notice of Appeal in the Black River Resident Magistrate's Court. The original ground of appeal which was filed on September 21, 2004 complained that the judgment of the learned Resident Magistrate was not "supported by the evidence". Leave was sought and was granted for the appellant to argue a further ground of appeal which read that the application for an adjournment was wrongly refused because:

• (i) there was valid reason for Counsel's absence

• (ii) there was inadequate time for Counsel who held to familiarize himself with the case or prepare for a trial;

• (iii) the interests of justice required that an adjournment be granted.

• (iv) that the Appellant did not get a fair hearing as a result of the adjournment being refused

• (v) the Appellant was denied the services of counsel of her choice as a result of the adjournment being refused.

6 The submissions of Mr. Adedipe for the appellant were indeed brief but to the point. He submitted that if there was...