Zephaniah Blake and Another v Almando Hunt and Others

JurisdictionJamaica
JudgeHarris JA
Judgment Date20 June 2014
Neutral CitationJM 2014 CA 62
Docket NumberCIVIL APPEAL NO 95/2011
CourtCourt of Appeal (Jamaica)
Date20 June 2014

[2014] JMCA Civ 25

JAMAICA

IN THE COURT OF APPEAL SUPREME COURT

Before:

The Hon Mrs Justice Harris JA

The Hon Mr Justice Morrison JA

The Hon Miss Justice Phillips JA

CIVIL APPEAL NO 95/2011

Between
Zephaniah Blake
1st Appellant

and

Inez Blake
2nd Appellant
and
Almando Hunt
1st Respondent

and

Hazel Clair Hunt
2nd Respondent

and

Thornia Eleanor Hunt
3rd Respondent

and

Cashel Roselyn Hunt
4th Respondent

Alexander Williams instructed by Usim, Williams and Co for the appellants

Miss Althea McBean instructed by Mrs Donna K.P. McIntosh-Brice for the respondents

REAL PROPERTY - Encroachment - Claim for injunction and damages for trespass - Limitation of action - Adverse possession

Harris JA
1

This appeal emanates from a dispute between the appellants and the respondents in respect of an encroachment by the respondents on the appellants' land. The appellants now challenge the following decision of Brooks J (as he then was) made in favour of the respondents:

‘It is therefore declared that:

1. The Defendants are the beneficial owners of all that parcel of land, hereinafter called “the property”, comprising 123.312 square metres being the parcel of land identified as section 10A on the survey plan prepared by Llewelyn Allen and Associates, commissioned land surveyors from a survey conducted on 27 March 2010 and being a part of the land comprised in Certificate of Title registered at Volume 1015 Folio 678 of the Register Book of Titles;

2. The Claimants hold their interest in the property on trust for the Defendants.

It is also ordered that:

  • 1. judgment for the Defendants on the claim and the counterclaim;

  • 2. the Claimants are hereby restrained, by themselves or by their servants and/or agents or in any manner howsoever, from removing, relocating, destroying or interfering in any manner with the boundary fence located between lots 10 and 11 Clanhope Drive, [sic] Golden Spring, in the parish of Saint Andrew;

  • 3. The Registrar of Titles shall rectify the Certificates of Title registered at Volume 1015 Folio 678 and Volume 1020 Folio 166 in accordance with the declarations herein contained;

  • 4. Liberty to apply;

  • 5. Costs to the Defendants to be taxed if not agreed.’

On 9 July 2013, we dismissed the appeal and awarded costs to the respondents to be agreed or taxed.

2

The appellants are the registered proprietors of lot 10 Canthope Drive, Golden Spring, in the parish of Saint Andrew, registered at Volume 1015 Folio 678. The respondents are the owners of adjoining property, 11 Canthope Drive, registered at Volume 1020 Folio 166. A surveyor's report dated 10 December 2007, which was exhibited in evidence, shows an encroachment of lot 11 on lot 10.

3

On 8 April 2008, the appellants instituted proceedings against the respondents claiming an injunction and damages for trespass. The following was averred in paragraphs 4 to 6 of their particulars of claim:

‘4. In or about 1989, the 1 st Claimant on behalf both of [sic] Claimants requested that 1 st Defendant remove a metal fence which had then encroached on the Claimants [sic] said land at its eastern boundary which the 1 st Defendant consent to do.

5. In or about 2003, the 1 st Claimant discovered that the 1 st Defendant had removed the said metal fence to abate the trespass, but the 1 st Defendant, on behalf of himself, and the other Defendants, and either by themselves or through their servants and/or agents, wrongfully erected a new concrete fence upon the Claimants property without the consent of any of the Claimants. The said concrete fence encroaches upon the Claimants [sic] said land at its eastern boundary.

6. The Defendants threaten and intend unless restrained by the Honourable Court to continue to maintain the said concrete fence upon the Claimants [sic] said land.’

4

On 1 December 2009, the respondents filed a defence and ancillary claim paragraphs 4 to 8 of which read:

‘4. The Defendants join issue with the Claimants [sic] claim in paragraph 4 of the Particulars of Claim and avers [sic] that they never met the Claimants until the Claimants started to build in 1999 and at no time requested the 1 st Defendant to remove a metal fence.

5. The Defendants denies [sic] the Claimants [sic] allegations in paragraph 5 of the Claim and avers that in 1967 the 1 st defendant purchased the parcel of land referred to in paragraph 2 hereof with the metal fence already installed and in July 2002 he invited the 2 nd Claimant to contribute to the re placement of the said metal fence with a concrete base and chain link on top which the 2 nd Claimant agreed to pay but not immediately. The fence was completed in October, 2002.

6. The Defendants denies [sic] paragraph 6 of the Claimants [sic] claim and avers that the said concrete fence is upon the Defendants [sic] land and not the Claimants [sic] land as the Defendants have a proprietary interest in the said land and the Claimants hold part of the land registered in paragraph 1 hereof on trust for the Defendants.

7. In December, 2007 [sic] Surveyors [sic] notice was served on the 1 st Defendant, copy attached and marked ‘H’.

8 On 13 th December, 2007 Defendants responded by serve [sic] on the Claimants of a letter with surveyors sketch plan dated December, 2007 copy attached and marked “H2”.’

5

In their reply to the defence and ancilliary claim, the appellants averred as follows:

  • ‘1. In response to paragraph 4, the Claimant's [sic] contend that they repeatedly instructed the 1 st Defendant to remove the fence, and to have it replaced by the proper boundary.

  • 2. In response to paragraph 5, the Claimants contend that they agreed to contribution [sic] 50% of the price of removing and re-erecting the fence, on the sole condition that the fence was placed on the correct boundary as reflected by the registered title to the lots of the Claimants and the Defendants.

  • 3. Further the Claimants deny that the metal fence was erected in 1967, and will contend that insufficient time had run against the Claimant [sic] for title to have been obtained by adverse possession and will contend that they never acquiesced in the Defendants obtaining the lands caught by the offending fence.

  • 4. The Claimants therefore deny that the Defendants are entitled to any of the reliefs claimed by way of counterclaim.’

Appellants' evidence
6

The 1 st appellant's evidence is that the purchase of his property commenced in 1989, at which time, his wife, the 2 nd appellant, and himself, were resident in London and were on a visit to Jamaica. At that time, he met the 1 st respondent and identified himself as the owner of lot 10 Canthope Drive. Subsequent to the payment of the deposit on the purchase price, he said that he was permitted by the vendor to enter into possession of the property. The fence separating the two properties then ‘consisted of wooden pegs with three barbed wires running across the pegs’.

7

He said that during the process of his acquisition of the property, it was his intention to secure a mortgage but this did not materialize as a survey of the land had been carried out which revealed the encroachment by a fence on his land. However, in cross-examination he stated that he did not obtain a survey when seeking to purchase the property. In 1990, on a visit to Jamaica, he inquired of the 1 st respondent his reason for preventing a surveyor from carrying out a survey. The 1 st respondent, he said, responded by saying that he had recently erected the fence and did not have sufficient funds to remove it.

8

While on a further visit to Jamaica in 1991, prior to the completion of the sale of his property to him, he said he observed that the barbed wire fence was replaced by a mesh wire fence which appeared to have moved 10 feet into the land which he was purchasing and that some of the existing pegs had been removed. Being infuriated by this act of the respondents, he went to the 1 st respondent and demanded that he remove the fence but he refused to do so. He also said that on several other occasions he requested that the fence be removed, but to no avail.

9

He went on to state, that in 2003, he endeavoured to secure a surveyor's report but the 1 st respondent refused the surveyor entry on his land, and in 2004 he observed that the 1 st respondent had constructed a concrete fence on his, the 1 st appellant's land six inch from the chain link fence. In 2007, after a survey had been done, a survey plan, which revealed the encroachment, was obtained by him (the 1 st appellant).

10

He further stated that the 1 st respondent spoke to him about selling him a piece of his (the appellant's) land to build a road. He also asserted that the 1 st respondent offered to purchase the land where the fence was located, however, despite negotiations in this regard, the 1 st respondent reneged and subsequently informed him that his, (the 1 st appellant's) cost towards constructing a wall was $150,000.00.

11

The 2 nd appellant testified that the property was purchased in 1999 but when pressed, in cross-examination, stated that she was not quite sure of the date. When she first saw the fence, she declared, it was constructed from barbed wire supported by wooden posts. She was unsure of the time of her first encounter with the respondents, but said at that time they exchanged pleasantries. However, she had no further conversation with them until 2004 when the 1 st respondent informed her of his proposal to build a concrete fence, which he would place in the right boundary and would be requiring a contribution from her, but a price was not discussed.

12

Thereafter, her husband and herself left for England but returned a month later at which time she observed that a new concrete fence had been constructed ‘a little over in her land’.

13

Mr...

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1 cases
  • Michael Emanuel Johnson v Fredrica Eunice Crooks
    • Jamaica
    • Supreme Court (Jamaica)
    • 6 July 2017
    ...pointed out that Chisholm v Hall was cited with approval recently by the Court of Appeal in Zephaniah Blake et al v Almando Hunt et al [2014] JMCA Civ 25, on the issue of factual possession and intention to possess and was also endorsed and applied in Recreational Holdings (Jamaica) Limited......

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