Audrey Blake v Donald Simpson

JurisdictionAntigua and Barbuda
JudgeGeorge, J.
Judgment Date26 April 2024
Judgment citation (vLex)[2024] ECSC J0426-1
Docket NumberCLAIM NO. ANUHCV2015/0555
CourtHigh Court (Antigua)
Between:
Audrey Blake
Claimant
and
Donald Simpson
Defendant

CLAIM NO. ANUHCV2015/0555

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Appearances:

Ms Sherrie-Ann S. Bradshaw for the Claimant

Mr. Wendel Alexander for the Defendant

Background Facts
1

George, J. [AG.]: By way of Fixed Date Claim Form filed on the 5th day of December, 2016 the Claimant claimed the following:

  • (i) A declaration that the boundary between the Claimant's land more particularly described as Registration Section: North Central; Block No.: 12-2092D; Parcel 269 and the Defendant's land more particularly described as Registration Section: North Central; Block No.: 12 2092D; Parcel 280 lies along the boundary marks marked in Boundary survey of Mr. Sean Peters dated December 13, 2013.

  • (ii) A declaration that the Defendant has encroached on the Claimant's parcel of land by a concrete retaining wall and a small concrete foundation.

  • (iii) An Order that the Defendant do demolish the wall and the foundation and thereafter restore the fence in its previous location at his own expense.

  • (iv) An order that the Defendant has trespassed by just about 323 square feet of the Claimant's land and continue to trespass on the Claimant's parcel of land.

  • (v) Damages for trespass against the Defendant.

  • (vi) An order that the Defendant do pay the sum of $1000.00, being the cost of the surveyor's report.

  • (vii) An injunction that the Defendant, his servants and/or agents do not trespass on the Claimant's parcel of land more particularly described at the Land Registry as Registration Section: North Central; Block No.: 12-2092D; Parcel: 269.

  • (viii) Interest pursuant to the Eastern Caribbean Supreme Court Act, Cap 143 at a rate of interest of 5% per annum from the date of filing to the date of judgment.

  • (ix) Such further or other relief as this Honourable Court deems just; and

  • (x) Costs.

2

By way of Defence filed on the 18 th of June, 2018 the Defendant denied encroaching on the Claimant's parcel of land and asserted that the boundaries of Parcels 279 and 280 owned by the Defendant have not been fixed and as such the Court is not entitled to entertain any action or other proceedings unless the boundaries have been determined as provided in section 17 of the Registered Land Act Cap 374 of the Revised Laws of Antigua and Barbuda, Revised edition 1992.

Preliminary Issues
3

When the trial came on for hearing on the 4 th of April, 2023 Counsel for the Defendant, Mr. Alexander, intimated to the Court that he read the pleadings and the history of the case and that he does not have any basis to continue with the trial. He indicated that he tried to reason with the Defendant, but he does not seem to be able to get through to him. No application was filed by Counsel to be removed from the record. The Court informed Counsel for the Defendant and the Defendant that it was not minded to adjourn the matter as it was a long outstanding matter and the matter was set down for trial. The Court nonetheless stood down the matter for Counsel for the Defendant and the Defendant to have a discussion amongst themselves.

4

On resumption of the proceedings, Counsel for the Defendant intimated to the Court that he spoke to the Defendant, and they are having irreconcilable differences. Counsel asked that the Defendant be given an opportunity to engage other Counsel of his own choosing and asked to be removed from the record.

5

The Court then heard from Counsel for the Claimant, Ms. Bradshaw, who intimated that she was ready to proceed with the trial and that the Claimant lived in St. Thomas, USVI and had to travel to Antigua for the trial. Ms Bradshaw also stated that Counsel for the Defendant, had ample time to make an application to be removed from the record, and that many of the delays had been caused by the inaction of the Defendant. Ms. Bradshaw pointed out to the Court that the record will reflect that no witness statement had been filed by the Defendant. Ms. Bradshaw also stated that no questions had been asked of the Court's expert and it would be unfairly prejudicial to her client if this trial were to be adjourned further.

6

The Court reiterated its reluctance to adjourn the matter to the Defendant, at which point Counsel for the Defendant and the Defendant agreed to proceed with the trial.

Evidence
7

Two witnesses gave evidence at trial. The Claimant gave evidence and the Court also heard from Mr. Leslie King, Licensed Land Surveyor and Court-appointed expert.

8

The Claimant relied on her witness summary dated the 14 th day of December, 2018 filed on the said date, which is to be found at pages 40–43 of the Core Trial Bundle.

9

The Claimant stated that since the filing of her witness summary she noted that the Defendant placed iron railings on her property. She also stated that the Defendant took down her fence, cut down a tamarind tree and was consistently working on her property. She stated that she was unable to get any peace on her land and she wants the Defendant to keep off her property.

10

Under cross-examination by Counsel for the Defendant, the Claimant admitted she lived overseas, and she came to Antigua twice or three times a year. She intimated that she saw the Defendant on her property every time she came to Antigua.

11

The next witness called was Mr. Leslie King, Licensed Land Surveyor. He referred to his report dated December 12, 2013. He indicated that he did a field visit. He took measurements of all the parcels on the Block relating to all the lands surrounding the parcels in question.

12

Mr. King confirmed that these parcels were also identified by fence lines. He took measurements from the field and went back to his office where he drew the plans from the measurements and was able to produce the plan exhibited to his report. He confirmed that the plan shows the Block 12-2092D registration section of North Central in Piggotts. He confirmed that the map shows Parcels 268 and 269 owned by the Claimant measuring 0.05 and 0.12 acres respectively; Parcel 279 owned by the Defendant measuring 0.07 acres and Parcel 280 also belonging to the Defendant measuring 0.04 acres. Mr. King also referred to the parcel on the East, that is, Parcel 271 measuring 0.15 acres and 272 measuring 0.05 acres.

13

Mr. King stated that the plan was done for a comparison of the registers as shown on the registers at the Land Registry. He noted that the areas which he found were favourable with the land registers. He pointed out that the only parcel which was at variance was Parcel 280, where the land registers show 0.05 acres and he found 0.04 acres on the ground. Mr. King also confirmed that on the map there is also a building outline which goes over Parcel 269 indicating an encroachment on the said parcel and goes far beyond the boundary of Parcel 280. He confirmed that the area of encroachment of the building measures 0.03 acres (approximately 1307 square feet) on Parcel 269.

14

Under cross-examination by Counsel for the Defendant, Mr. King admitted that when he surveyed Parcel 280, he measured it to be 0.04 acres, less by 0.01 acres. He also admitted that he apportioned a larger portion of land to the Claimant from 0.10 to 0.12 acres. He intimated that he used the fence lines as the fixed lines as they were in accordance with those fixed lines at the Land Registry and he could not place any marks due to the presence of the building and the fact that he could not get into the building.

15

He stated that he used the fence lines with the cadastral map at Lands and Survey and they compared favourably. Mr. King confirmed that this is the normal acceptable method employed when there are no prior existing lines. He further confirmed that the only existing plan was for Parcel 279 and that there were no other plans for any other parcels in the area. Mr. King stated that as there are no survey plans lodged, the amount of encroachment cannot be ascertained to a high degree of accuracy. However, there is certainly some encroachment. Nonetheless, he indicated that points can be established, which would enable a plan to be lodged and the level of encroachment could be determined.

16

The Claimant closed its case at this point.

17

The Defendant did not file any evidence in the matter.

18

After the close of the Claimant's case, Counsel for the Defendant accepted that the Defendant could not present any evidence as he had filed no witness statements or witness summaries in the matter and requested two weeks to file written submissions.

19

The Court made an order that written submissions with supporting authorities were to be filed and served by the parties by the 18 th of April, 2023, and reserved judgment. This Court did not receive any submissions filed by the Defendant. However, on 12 th February, 2024, the Court received the submission filed by the Claimant on the 2 nd May, 2023.

Submissions of the Parties
20

The issue to be determined is whether the Defendant has encroached on the Claimant's land, without her consent, agreement or permission.

21

It is not in dispute that the Claimant is the owner of the parcel of land in the Registration Section: North Central; Block No.: 12-2092D; Parcel 269.

22

It is also not in dispute that the Defendant is the registered proprietor of a parcel of land more particularly described as Registration Section: North Central; Block No.: 12-2092D; Parcel 280.

23

The Claimant asserts that the Defendant encroached on her parcel of land being Registration Section: North Central; Block No.: 12-2092D; Parcel: 269 and is entitled to the relief sought.

24

The Claimant further contends that in or about 2013, the Defendant trespassed on her land and removed a fence from her property and without her knowledge, consent or authority the Defendant knocked down a tree that was planted on her property which was approximately 100 years old, which said tree...

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