Clarabell Investments Ltd v Antigua Company Ltd

• Jurisdiction: Antigua and Barbuda
• Judge: Blenman, J
• Judgment Date: 08 October 2008
• Judgment citation (vLex): [2008] ECSC J1008-1
• Court: High Court (Antigua)
• Docket Number: CLAIM NO: ANUHCV2006/0326IN
• Date: 08 October 2008

[2008] ECSC J1008-1

THE HIGH COURT OF JUSTICE

CLAIM NO: ANUHCV2006/0326IN

Between:

Clarabell Investments Limited

Paul Sudolski

Doreen Sudolski

Claimants

and

Antigua Company Limited

Rupert Sterling

Defendant

Appearances:

Mr. Clement Bird for the Claimants

Mr. Hugh Marshall Jnr. for the Defendants

Blenman, J

1 Clarabell Investment Ltd. (Clarabell) is a company in which Mr. Paul Sudolski and Mrs. Doreen Sudolski are directors and shareholders. The Antigua Isle Company Limited (Antigua Isle) is the owner of property described as: Mc Kinnons: Block: 45 1696B Parcel 18 (Parcel 18). Mr. Rupert Sterling is a licensee of Antigua Isle, and lives in a house situated on Parcel 18.

2 Clarabell owns property situated at Trade Winds, St John's Antigua, described as Registration Section: Mc Kinnons: Block: 45 1696B Parcel 301 (Parcel 301). Mr. and Mrs. Sudolski own property situated on Parcel 301. The two parcels of land are adjoining each other and Mr. Sterling has, at all material times, been in possession of Parcel 18.

3 Clarabell, Mr. and Mrs. Sudolski allege that around 2000, the defendants erected a garage and a fence on their land. They further complain that the defendants have trespassed on their land and they have filed these proceedings and seek damages for the alleged trespass. They also seek an injunction to restrain the defendants from trespassing on their property together with costs.

4 Both Antigua Isle and Mr. Sterling deny that they have trespassed on the claimants' property. They also dispute that the claimants are entitled to any relief whatsoever. Accordingly, they urge the Court to dismiss the claimants' case and award costs against the claimants.

5 The defendants contend that the structures, if any, on Parcel 301 have been there since 1940. Therefore, any claims that the claimants may have had against them are statute barred since the limitation period for bringing trespass action is 12 years.

6 The issues that arise for the Court's determination are as follows:

• (a) Whether either of the defendants has committed a trespass on the claimants' property.

• (b) To what remedies, if any, are the claimants entitled.

7 Evidence

Mr. Paul Sudolski filed an affidavit on behalf of the claimants and he was cross examined. Mr. Hugh Marshall Snr. And Mr. Rupert Sterling deposed to affidavits in support of the defendants and they were cross examined. The parties have also submitted agreed documents to which the Court has paid regard. While other persons have filed affidavits, they did not attend Court to be cross examined. The Court has therefore placed no weight on their evidence since their attendance was not dispensed with.

8 Mr. Hugh Marshall Jnr. submissions

Mr. Marshall Jnr. stated that the claimants have not applied for, neither do they have a non-citizens land holding licence that they are therefore "devoid of the proprietary right' necessary to bring this claim for trespass, loss of use and enjoyment, Declaration, Order and Injunction. Counsel said that section 3 of the Non Citizens Land Holding Regulation Act (CAP 293) stipulates that:

"Subject to the provisions of this Act, neither land in Antigua and Barbuda nor a mortgage on land in Antigua and Barbuda shall, after the commencement of this Act, be held by an unlicenced non-citizen and any land or mortgage so held shall be forfeited to Her Majesty".

9 Section 14 of the Act which applies to "shares of any company incorporated in Antigua and Barbuda", such as those held by the 2^nd and 3^rd claimants herein the 1^st claimant, provides in subsection (2) that:

"With a view to preventing the evasion of the foregoing of this Act, no person shall without the licence of the Governor General, hold any property to which this section applies in trust for a non-citizen and any such property so held shall be forfeited to Her Majesty".

10 In relation to the limitation period, Mr. Marshall said, of extreme importance for establishing when time began to run for limitations purposes and for estimating any damages the Court may find payable to the claimants, the defendants submit that the wire fence, which established boundaries between the two properties had been in existence for decades. He referred the Court to paragraph 5 of Mr. Sterling's affidavit, "I believe since the properties were owned by one entity and were sold in the 70s as a part of the liquidation of Cove Enterprises Limited. This has been more than twenty-five years ago".

11 Further, Mr. Marshall Jnr. said that even the claimants also misapprehended where the actual boundaries were. In fact, it was not until the report of the agreed expert witness, Mr. Leslie King L.S. dated March 12^th 2007 that it was determined where the boundary lay between the two parcels, that the garage is on Parcel 301 and that the defendants have encroached on that Parcel by approximately 3,015 sq ft. Counsel said that the claimants as well as the defendants simply did not know that there was any trespass, this is supported by the fact that the Sudolskis planted a hedge along the border of the fence to which Mr. Sterling refers.

12 Mr. Marshall Jnr. stated Antigua Isle maintains that it is not subject to any claims for damages because Mr. Sterling is not in a "principal/agent" relationship with Antigua Isle and "is not otherwise in a legal relationship" which would make Antigua Isle responsible for his torts; the two defendants have a licencor/licencee relationship in Parcel 18. No evidence has been adduced that Antigua Isle encouraged or performed any tort of trespass over Parcel 301. However, to the extent that the Court finds Antigua Isle to be in possession of the disputed 3,015 sq ft, the company admits the legal benefits and liabilities of such possession. It may seem contradictory for Antigua Isle to be claiming the benefits of possession but to not submit to possible liability in trespass. The company's position is that it has taken no positive steps to commit any trespass but it has passively possessed the land in so far as the said land had been arbitrarily partitioned since the 1970's.

13 Mr. Marshall Jnr. referred the Court to Halsbury's Laws of England, as authority for the defendants' position that the claimants do not have a right to bring the present action, under the caption; "WHO MAY SUE FOR TRESPASS TO LAND". Trespass is an injury to a possessory right, and therefore the proper plaintiff in an action of trespass to land is the person who was, or who is deemed to have been in possession at the time of the trespass. The owner has no right to sue in trespass if any other person was lawfully in possession of the land at the time of the trespass, since a mere right of property without possession is not sufficient to support the action".

14 Person with right to possession

A person having the right to the possession of land acquired by entry on the land is in the lawful possession of it, and may maintain trespass against any person who, being in possession at the time of entry wrongfully continues on the land.

15 Learned Counsel Mr. Marshall Jnr. said that the defendants were in actual possession of Parcel 18 and not the claimants. It has been established that the fence delineating the defendants' area of occupation of Parcel 18 and a portion of Parcel 301 existed since the 1970s. Not only do the claimants not have a right to pursue the claim for damages in trespass due to their lack of actual occupation, but they also are statute barred from asserting property rights and obtaining declaration, order, injunction or other relief as claimed because of the provisions of the Limitation Act (No. 8 of 1997 Laws of Antigua and Barbuda).

16 Mr. Marshall Jnr. said that on the issue of whether the presence of intention is relevant to trespass; it is the law that intention is relevant to the quantum of damages. Intentional invasions are actionable whether resulting in harm or not. Neither the intruder's motive is material, nor the fact that his entry actually benefitted the occupier. The requisite intent is present if the defendant desires to make an entry, although unaware that he is thereby interfering with another's rights. Thus, it makes no difference whether the intruder knows his entry to be unauthorized or honestly and reliably believes the land to be his. It may, however, affect the quantum of damages.

17 Counsel referred the Court to the case ofJoyce Ryan v Gloria Gonsalves and Another, Civil Suit No. 464 of 1993—St. Vincent and the Grenadines High Court of Justice, in which the claimants claimed damages for trespass to land; an injunction to restrain the defendants for trespassing on the claimants land, and an order that the defendants demolish a building erected on the claimants land; the case raises issues of limitation and possession similar to those in the case at bar. The Court distinguished between adverse possession and trespass in relation to 12 year limitation period. The Court awarded damages along with the order of demolition of the building erected on the claimant's land and prohibitory injunction. The Court ordered the defendant to pay special damages the sum of $200.00, for the loss of three coconut trees, eighteen peas trees and banana trees as claimed and general damages in the sum of $5,000 were ordered to be paid by the defendants.

18 Mental Distress

Mr. Marshall Jnr. said that the claimants' claim for damages for mental distress is unsubstantiated by the evidence. There was no assault by either of the defendants. Mr. Sudolski's affidavit evidence was that Mr. Sterling told him he would not share the cost of building a walled fence between the properties — That Mr. Sudolski should build the fence himself as he was a "white man". Mr. Sudolski said that Mr. Sterling, "He made explicit threats to my emotional and economic well-being by bringing into question my immigrant status in Antigua and...