St. Lucia Service Company Ltd v Crownlands Ltd

• Jurisdiction: St Lucia
• Court: High Court (Saint Lucia)
• Judge: Matthew, J.
• Judgment Date: 08 November 1995
• Neutral Citation: LC 1995 HC 15
• Docket Number: 261 of 1989
• Date: 08 November 1995

St. Lucia Service Co. Ltd.

and

Crownlands Ltd.

Matthew, J.

261 of 1989

High Court

Real property - Trespass — Assessment of damages — Plaintiff claimed a declaration that the defendant by its servants and or agents were not entitled to enter or cross the plaintiff's land by the said road or at all — Damages — Court found that the plaintiff was awarded $20,000.00 for the trespass — $7,500.00 for aggravation — Survey fees of $2,500.00 — Costs to the plaintiff of $3,000.00

Appearances:

Mr. K. Monplaisir Q.C. and Miss H. Ali for plaintiff

Mr. M. Gordon for the defendant

Matthew, J.

1 This matter deals with an assessment of damages arising out of an admitted trespass committed by Abel Ghirawoo, the Managing Director of the defendant company, on the plaintiff's land in June of 1989.

2 It is necessary to have regard to the pleadings in this case. On August 2, 1989 the plaintiff filed a writ of summons indorsed with statement of claim requesting certain relief. On October 23, 1990 the plaintiff filed an amended writ indorsed with statement of claim, which is as follows:

“AMENDED STATEMENT OF CLAIM

(Pursuant of order 20 Rule 3)

• 1. The plaintiff is and was at all material times the owner of 16.6 acres situate at Cul de Sac in the Quarter of Castries.

• 2. Since about 2nd June, 1989 the plaintiff observed the defendant through his servants and or agents had wrongfully entered and crossed the plaintiff's said land by constructing a 23ft wide road access the plaintiff's land which is shown on Plan, by S. J. Guard dated 10th June, 1989.

• 3. The defendant wrongfully continues to use the aforesaid road and threatens and intends unless restrained by this Honourable court to repeat the acts complained of.

• 4. The defendant has wrongfully thrown and continues to throw earthworks and other debris on the plaintiff's lands aforesaid making it impossible for the plaintiff to use this portion of land well as affecting his adjoining lands by making it waterlogged.

• 5. By reason of the matters aforesaid, the plaintiff has suffered loss and damage.

AND THE PLAINTIFF CLAIMS:–

• 1. A declaration that the defendant by its servants and or agents is not entitled to enter or cross the plaintiff's said land by the said road or at all.

• 2. An injunction to restrain the defendant whether by its servants or agents or otherwise howsoever from entering or crossing or in anyway dumping of soil and debris on the said lands.

• 3. Damages.

• 4. Further or other relief.

• 5. Costs.

Dated this 19th day of October, 199.

MONPLAISIR & CO. Per:

C.B. Downes

Solicitors.”

3 The defendant entered appearance on October 12, 1989 but never filed a defence. Judgment in default of defence with damages to be assessed was filed on December 27, 1990. On October 3, 1991 the plaintiff filed a summons on application for assessment of damages and on September 18, 1992 d'Auvergne J. made an interim consent order, which is as follows:

“INTERIM CONSENT ORDER

4 THIS SUMMONS an application for Assessment of Damages coming on for hearing on 18th day of September, 1992 before the Honourable Miss Justice d'Auvergne AND UPON HEARING COUNSEL for the respective parties herein.

IT IS ORDERED BY CONSENT:

• 1. That no later than October 31st, 1992 the trespassed road must cease to be used.

• 2. That no later than October 31st, 1992 the plaintiff's land affected by the trespass shall be restored to its original condition.

• 3. After restoration mentioned in 2 above the plaintiff's boundary affected by the trespass shall be re-established by survey.

• 4. The defendant to pay:–

  • (a) Survey costs incurred by the plaintiff to date.

  • (b) Survey costs to re-establish the plaintiff's boundary.

  • (c) The plaintiff's costs to be agreed or otherwise assessed.

    Sgd: Kenneth Monplaisir Sgd: Michael B. Gordon

    Counsel for the plaintiff Counsel for Defendant.

    BY THE COURT,

    A. G. Foster

    Dep. REGISTRAR.

IT IS ORDERED BY CONSENT:

5 An amendment was made to the interim consent order on November 18, 1992, which added sub-paragraph (d) to paragraph 4 of the order. Sub-paragraph (d) is as follows: “and (d) Damages to be agreed or otherwise assessed.”

6 That amendment was signed by both counsel.

7 At the hearing of the assessment Stanley Mullings, Managing Director of the plaintiff company, gave evidence and called as witnesses Gerald Guard and Neil Williams. Abel Ghirawoo was the only witness for the defendant.

8 Stanley Mullings stated that the plaintiff company owns a property at Cul-de-Sac, which it purchased from Geest Industries Limited on March 2, 1985. He stated that on June 2, 1989 he had cause to visit the area where he observed that a road was being cut across the northern end of the plaintiff ‘s property. He said he had given nobody permission to cut the road and so he began to make inquiries.

9 He said that as a result of the inquiries he contacted Mr. Abel Ghirawoo at his home and Mr. Ghirawoo admitted that he was the one cutting the road. He asked Mr. Ghirawoo for his authority to do so hater told him to discontinue or else he would be obliged to take further action. Mullings stated that Ghirawoo replied that he knew what he was doing and that he would continue. Mullings stated that Ghirawoo did in fact continue for on June 6, 1989 he found the construction of the road was complete and the road was already in use.

10 He said he got a licensed surveyor, Gerald Guard, to survey the land for him. He said the road reduced the size of his property and created an unauthorised access on his land. He said also that because of the build up of the road it prevented the movement of floodwater.

11 Mullings stated that he intended to establish a steel fabricating plant on 43,520 square feet of his land just at the place where the encroachment took place. He said he had already got approval for incentives and had engaged the services of civil engineer, Neil Williams, to prepare drawings for the building and to seek permission for the structure to be established.

12 He tendered in evidence a copy of the company's deed to the land, a plan of survey by guard and a letter showing the grant of incentives.

13 He stated that he paid guard $2,500 for the survey and paid $2,000 to Williams for the drawings. He tendered receipts in support. He stated that he paid $300 for photographs but he did not tender any photographs but only a receipt dated August 20, 1990.

14 He also tendered in evidence a document from C.O. Williams Construction (St. Lucia) Ltd. captioned “Re: Fill at Cul-de-Sac” estimating that it would cost $320,000 to fill the area with clayey material and compact as far as the material would allow.

15 He stated further:

“My land is not in position such that I can build my factory on right now. If I had to build the factory now I would have to do two main things.

• 1. Have the unauthorised road removed, thereby going the full length of the land.

• 2. The land is now swampy. The water used to flow South to North. The road has blocked. The road is soil with quarrie waste and materials of that nature. It is being used now by everybody.

16 Because the situation has remained swampy for the past six years the surface of the land will have to be excavated and better material placed on it.”

17 He stated that he was hoping to get rent for the structure that he was putting up. He tendered a document headed ‘Capital investment’ giving a figure of $1,424,920.00. He said that his net figure for the rental for 3 years would be $190,246.30.

18 He was cross-examined at great length. Under cross-examination he stated that his tenants use the road that was cut by Ghirawoo to get to their business places. He said the new highway is higher the old highway. He stated that he sold 12 of the 16 acres he had purchased originally and that under excessive rain that area floods. He agreed that the unauthorised road would be 70 feet long in mean.

19 He stated that he had not yet decided not to build the steel factory and was waiting for the result of the unauthorised road. He said when the unauthorised road was cut on the land he decided to proceed with the building of the steel factory.

20 He stated that he did not know if the defendant was aware of his intention to build the steel factory and never caused an estimate to be made for the removal of the road neither did he do anything elf about the removal of the road.

21 He agreed that there are about 16 to 17 landowners who now use the trespassed road.

22 He was reminded about his conversation with Ghirawoo on June 2, 1989. He said the conversation was reasonably long and amicable but that during the conversation Ghirawoo did not explain to him what he was doing in building the road.

23 He stated that during the period between the alignment of the main road and June 2, 1989 he never got stuck on the old Castries/Anse La Raye road when Ghirawoo and some of his men came to free him. He said he may have been in Jamaica in April 1989.

24 He said he never asked C.O. Williams for an estimate to remove the trespassed road from his land. He said he was obliged to use the trespassed road to get access to some of his property and his tenants were also obliged to use it.

25 He said he never made the investment in the steel factory and he intended to use his own funds to build it. He said when he did not build the steel factory he made no other investments and left his money in the bank where he got some interest.

26 He said the land became swampy mainly because of the trespassed road. He agreed the new Castries road when it was built was elevated some three feet above his land and he agreed there was a culvert on his land into which water from a part of his land drained.

27 He admitted that a small portion of the factory site drained towards the culvert but he said it is not true that the whole of the factory site drained towards the...