Asot A. Michael Appellant v Astra Holdings Ltd Respondent [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: RAWLINS, J.A. [AG.],Justice of Appeal [Ag.],Justice of Appeal,Hugh A. Rawlins,Michael Gordon, QC
• Judgment Date: 23 May 2005
• Judgment citation (vLex): [2005] ECSC J0523-2
• Court: Court of Appeal (Antigua and Barbuda)
• Docket Number: CIVIL APPEAL NO.17 OF 2004
• Date: 23 May 2005

[2005] ECSC J0523-2

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Adrian Saunders Justice of Appeal

The Hon. Mr. Michael Gordon, QC Justice of Appeal

The Hon. Mr. Hugh A. Rawlins Justice of Appeal [Ag.]

CIVIL APPEAL NO.17 OF 2004

CIVIL APPEAL NO.15 OF 2004

Between:

Asot A. Michael

Appellant

and

Astra Holdings Limited

Respondent

And

Between:

[1] Robert Cleveland

[2] Lisa Cleveland

[3] Clarence A. Eckert

[4] Mildred I. Eckert

[5] Charles Sawka

[6] Linda Sawka

Appellants

and

Astra Holdings Limited

Respondent

Appearances:

Mr. Elliott D. Mottley, QC, and Mr. John Fuller for the Appellant in Civil Appeal No. 17 of 2004

Mr. John Fuller for the Appellants in Civil Appeal No. 15 of 2004

Mr. Gerald Watt, QC, and Mr. Norris Scholar for the Respondent in both appeals

RAWLINS, J.A. [AG.]

1 These appeals are against a judgment that Mitchell J delivered in favour of Astra Holdings Limited in April 2004. In that judgment, the learned Judge awarded $500.00 nominal damages and $9,000.00 costs to Astra Holdings against the government of Antigua and Barbuda. He made this award because he found that servants of the Public Works Department trespassed upon the lands of Astra Holdings and constructed roads on it without the permission of the owners. The Attorney General filed a Notice of Appeal but has not pursued it.

2 Against Appellant Asot Michael, the learned Judge awarded $250,000.00 general damages and $250,000.00 exemplary damages for trespass. He awarded interest at the rate of 10% from the date that the claim was filed to judgment, and prescribed costs on the total award of $500,000.00. In making these awards, the Judge held that the real responsibility for the trespass rested with Mr. Michael. He found that while Mr. Michael was the Minister of Public Works, he caused equipment of the Public Works Department to enter upon the lands and construct the roads. The Judge made the award for exemplary damages under the category described inRookes v Barnard [1964] A.C. 1129, which permits an award for oppressive, arbitrary and unconstitutional conduct by a government servant.

3 The learned trial Judge also granted Astra Holdings injunctive relief against Mr. Michael, as well as against the Appellants on the Notice of Appeal in Civil Appeal No. 15 of 2004. The injunction prohibits them from passing and re-passing along the eastern branch road that traverses the lands of Astra Holdings. This is a part of a road that leads from the Willikies Main Road to their properties. They have appealed against the grant of the injunction.

4 The Notice of Appeal in Civil Appeal No. 15 of 2004 was filed on 12^th May 2004. The appeal was not listed for hearing because the procedural processes for listing were incomplete. However, it was consolidated with Civil Appeal No. 17 of 2004, by consent, because a decision on this appeal could affect the Appellants who filed that Notice. The appeals were consolidated on condition that the Appellants on the Notice in Civil Appeal No. 15 of 2004 would abandon 3 grounds of appeal that are stated in the Notice. These grounds relate to the acquisition of an easement by prescription over the disputed road.

5 A brief background would put the central issues that are to be determined on these appeals into helpful perspective.

Background

6 Astra Holdings is a development company. The government owns 25% of its shares. The company holds a parcel of land at Lawries Bay in the Parish of St. Phillip in Antigua. It is registered as Registration Section: St. Phillip North Block 25 3288A, Parcel 44. On the northern boundary of this land is a hilltop property known as Cinnament Hill. Allan R. Wilson, deceased, owned it.

7 Astra Holdings acquired title to Parcel 44 in 1989. Prior to this, the government owned it and transferred a portion of about 145 acres to Western Corporation Development Limited in about 1973. These lands were originally a part of Rooms Estate. They supported sugar cane up to the early 1970s. When the planting of sugar cane ended in the early 1970s, they supported vegetables and livestock. Plots were leased to small farmers under the Peasant Development Program.

8 The Appellants in Civil Appeal No. 15 of 2004, the Clevelands, the Eckerts and the Sawkas, own 3 parcels of land at Cinnament Hill. Their parcels are parts of a strip of land, which the late Mr. Wilson had alienated from his Cinnament Hill property lands that were west of Lawries Bay. He purchased these lands during the 1960s from a Cornelius family. The land was about 19 acres, and described as St. Phillip North, Block 25 3190A, Parcel 5. Mr. Wilson sub-divided some of it into the parcels, which he sold.

9 The Eckerts purchased their parcel from Mr. Wilson in the late 1970's. They built a house on it in 1984 and took up residence there in 1986. Linda Sawka, who is their daughter, first visited Antigua from the 1970's. She moved to the island in 1982 with her husband, Charles Sawka. They lived in a house that they rented. Her parents subsequently gave her a piece of their parcel of land. The Sawkas built a house on it in 1999 and moved into the house in 2000.

10 Mr. Michael and his mother, Mrs. Josette Michael, purchased 2 parcels of land from Mr. Wilson's estate in early 2003. These are registered as parcels 9 and 17. The Michaels also jointly acquired adjoining parcel 12 from Yorie Pigott.

11 An access road runs from the Willikies Main Road northwards to the gate of the Wilson's Cinnament Hill property. About two thirds of the way from the main road, the access road splits into a western and an eastern branch road. Both branch roads provide access to the Wilson property. They also provide access to the properties on the strip of land that Mr. Wilson sub-divided, as well as to the Michaels' lots 9, 12 and 17.

12 The western branch road access is not in dispute. Astra Holdings accepts that the Appellants in both appeals are entitled to use it. The dispute arises in relation to the eastern branch road, which runs over Astra Holdings lands. The Appellants have insisted that it is a public right of way, and that therefore, the servants of the Public Works Department did not commit a trespass when they entered upon it to improve it for the use of the Appellants and the public. On the other hand, Astra Holdings has insisted that the eastern branch road is neither a private nor a public right of way, but forms part of its private property. Astra Holdings claims that when Mr. Michael instructed the Public Works Department to enter upon the property to grade it, those acts constituted a trespass. It also claims that the Appellants in Civil Appeal No. 15 of 2004 trespassed on its property by using the road as a public thoroughfare to access their properties at Cinnament Hill.

The Considerations on these Appeals

13 First, I shall state the issues that arise in these appeals, and, second, deal with each substantive issue under the appropriate heading.

The issues

14 The Appellants challenge various aspects of the facts that the Judge found, inferences that he drew and his application of legal principles. However, the exact grounds of appeal are not specifically stated.

15 It is trite principle that an appellate Court will not impeach findings of facts and inferences of a first instance or trial Court that saw and heard witnesses give their evidence, except in certain circumstances. An appellate Court may interfere in a case in which the reasons given by a trial Judge are not satisfactory, or where it is clear from the evidence that the trial Judge misdirected himself. Where a trial Judge misdirects himself and draws erroneous inferences from the facts, an appeal Court is in as good a position as the trial Judge to evaluate the evidence and determine what inference should be drawn from the proved facts.[SeeFrancis v Boriel, St. Lucia Civil Appeal No. 13 of 1995 (20 January 1997) andGrenada Electricity Services Ltd. v Isaac Peters, Grenada Civil Appeal No. 10 of 2002 (28^th January 2002)]

16 Even if, as it appears in the present case, there are instances in the judgment in which facts were found and inferences drawn on no or no clear evidential bases, little purpose would be served by simple references to those instances, if, in the end, these factual findings and inferences would not adversely affect the central issues around which these appeals revolve.

17 As I discern them, the central issues in these appeals are, first, whether the learned trial Judge erred when he held that the eastern branch road was not apublic right of way over the lands of Astra Holdings. The finding on this issue would, to some extent, determine whether the Appellants trespassed on the lands of Astra Holdings. I state "to some extent", because the trial Judge could have found trespass although a right of way existed over the eastern branch road, if the grading reached outside of the delineated boundaries of the existing right of way and encroached upon areas of Astra Holdings' lands. The finding on the first issue would also go to the question whether the learned Judge erred when he granted the prohibitory injunction against the Appellants. The resolution of the appeal on this issue would also involve a consideration of a statement that the Judge made that the eastern branch road is not a private road.

18 The second substantive issue is concerned with the award of damages. The first challenge is that the award of damages should be struck out because the grading of the road did not constitute a trespass. The second challenge to the award of damages is whether, presuming that the Judge correctly found that there was a trespass, the Judge nevertheless erred when he ordered Mr. Michael to pay $250,000.00 general damages. The third question is whether the Judge erred when he ordered Mr. Michael to pay $250,000.00 in exemplary damages. In the fourth place, Mr. Michael appealed...