Trevor Bucknor v Noel Washington
| Jurisdiction | Jamaica |
| Judge | Morrison P,Straw JA,Fraser JA (AG) |
| Judgment Date | 28 June 2019 |
| Neutral Citation | JM 2019 CA 47 |
| Date | 28 June 2019 |
| Court | Court of Appeal (Jamaica) |
[2019] JMCA Civ 22
PARISH COURT CIVIL APPEAL NO 31/2018
The Hon Mr Justice Morrison P
The Hon Miss Justice Straw JA
The Hon Mr Justice Fraser JA (AG)
Mrs Amal Dockery Martin for the appellant
Chumu Paris for the respondent
Tort - Trespass to land — Whether evidence was sufficient to maintain claim of trespass to land.
The appellant and the respondent are neighbours in the community of Look Out District, Hopewell in the parish of Hanover. At the date of the trial in this matter, the appellant was 65 years of age and the respondent was 85. The property occupied by the appellant was originally owned by his father, the late Mr James Bucknor, who died many years before the current dispute arose.
In the court below, the respondent claimed against the appellant for damages for trespass to his property in the following terms:
“The Plaintiff claims against the Defendant the sum of TWO HUNDRED AND FIFTY THOUSAND DOLLARS ($250,000.00) as damages for trespass for that on divers days between the 4 th November 2010 and the 11 th April 2011 the Defendant and/or his servants/agents unlawfully entered upon the Plaintiff's property known as Rosemount part of Look Out District in the Parish of Hanover registered at Certificate of Title Volume 1325 Folio 609 of the Register Book of Titles and destroyed the Plaintiff's concrete water tank and concrete column.”
On the morning of the trial before Her Honour Miss Winsome Henry, Parish Judge for the parish of Hanover (‘the judge’), the respondent's counsel stated his defence as follows:
“The defendant did not trespass on the plaintiff's property and if any damage was done he did not do it.”
On 14 September 2017, after hearing evidence from the appellant and the respondent, the judge found for the respondent. The appellant was accordingly ordered to pay damages to the respondent in the sum of $250,000.00, the surveyor's fee of $67,500.00 and the respondent's costs, to be agreed or taxed.
This is the appellant's appeal against the judge's judgment. The two issues which arise in the appeal are (i) whether, as a matter of law, the respondent was entitled to maintain an action in trespass to land; and (ii) whether, on the facts, the judge's conclusion was justified in the light of the evidence in the case.
Mrs Dockery Martin, for the appellant, relies heavily on two surveyor's identification reports which were admitted as exhibits at the trial. The first is a report dated 22 July 2008 prepared by Messrs Grantley Kindness & Associates (before this round of litigation between the parties commenced); and the second is a report dated 13 February 2013 prepared by Mr Brian M Alexander (by order of the court in this matter).
Both reports show that the boundaries on the earth between the appellant's and the respondent's properties are in accordance with the registered boundaries. However, they also show that a part of a water tank and a part of a chain link fence on the respondent's property encroaches on to the reserved road leading to the appellant's adjoining property. According to Mr Kindness' measurements, the extent of the encroachment in the case of the tank is, at its greatest, 0.52 metres into the reserved road; while, in the case of the chain link fence, it is 1.0 metre. According to Mr Alexander's measurements, the equivalent figures are 0.75 metres and 1.3 metres respectively.
The respondent's case was to the following effect. He built the tank and the fence, to which a concrete column was attached, in 1969. At that time, the appellant would have been quite young, but the appellant's father, with whom the respondent enjoyed a good relationship, was still alive. The appellant's father made no objection to the location of either the tank or the fence. Indeed, he collaborated with the respondent in the laying out of the reserved road. Neither the fence nor the tank impeded access along the reserved road, which was approximately 10 feet in width, to the appellant's property. He saw the appellant use a chisel and a hammer to “lick down” the column which was connected to the fence. He also saw the appellant use the same chisel and hammer to “bust” the tank, then told his friend who was with him to urinate into it. The estimated cost of repairing the tank and rebuilding the column was $192,920.00 and he also paid the full cost of Mr Alexander's surveyor's identification report of $67,570.00.
Somewhat at variance with his stated defence, the appellant readily admitted at the trial that he caused damage to the respondent's column and part of the fence, though he denied damaging the tank. He said that he was justified in knocking down the column and damaging the fence because they impeded his access to his own property. He had told the appellant not to put the column where he did and, as a result of an earlier survey by a Mr Bloomfield, he had “removed the obstruction”, because “the property was on the road and was obstructing me”. However, the appellant accepted that vehicles had in the past driven up past both the respondent's and his properties, transporting materials for improvements to his house, and also up to his sister's house which was built over 20 years before.
In addition to hearing the evidence of the parties and considering the surveyors' reports and the accompanying photographs of the area, the judge also had the advantage of a visit to the locus in the presence of both parties.
At the outset of her detailed analysis of the evidence, the judge observed that, “[t]he [appellant] having admitted he destroyed the fence and the column, the main issues in the case are, was he justified in doing so, and when he carried out this action was he a trespasser”. Based on the surveyors' reports, the judge accepted that the respondent had breached the boundary lines with the reserved road. However, she pointed out that “the breach is on the reserved road not between the [respondent's] property and the [appellant's] father's property”. As regards the status of the reserved road, the judge found that “it does not belong to either party and it is for both parties to access their property”.
The judge then went on to prefer the respondent's evidence over the appellant's in virtually every significant aspect of the case, observing, somewhat mildly, that “I do not find the [appellant] to be a credible witness in certain areas”. She accepted that the respondent constructed the tank, fence and column in 1969. She rejected the appellant's evidence that he had raised an objection when they were being built, pointing out that the appellant would have been a teenager at that time and that his father, as the owner of the property, was the person with whom the respondent would have interacted. The judge accepted the respondent's evidence that he and the appellant's father had a good relationship and that they had carried out work on the reserved road together. Indeed, the judge observed, ...
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