Dr Mathurin Jurgensen v Public Utilities Authority
| Jurisdiction | Antigua and Barbuda |
| Judge | Blenman J:,Blenman J |
| Judgment Date | 24 October 2010 |
| Judgment citation (vLex) | [2010] ECSC J1024-1 |
| Date | 24 October 2010 |
| Court | High Court (Antigua) |
| Docket Number | CLAIM NO. ANUHCV2004/0529 |
IN THE HIGH COURT OF JUSTICE
CLAIM NO. ANUHCV2004/0529
Mr. George Lake for the Claimant
Ms. Monique Francis-Gordon for the Defendant
Blenman J: This is a claim for trespass to land in which Dr.Mathurin Jurgensen seeks several reliefs including special damages and exemplary damages against the Public Utilities Authority (PUA). She also seeks a number of declarations against the PUA. In addition, she seeks an injunction to restrain PUA from trespassing on the property.
Dr. Mathurin Jurgensen alleges that PUA trespassed on the property that was leased to her. She also complains that PUA unlawfully caused a cell tower to be erected on the property and in doing so, dug trenches and made other incursions unto the property in order to lay cable lines. As a consequence, she says that she has suffered substantial loses including the economic loss of business opportunity in the sum of $9,810,246.15EC. She has also claimed the sum of $10,709,166.60 in pre-arranged financing. As a result of the loss of use of the property, she says that she is entitled to be compensated in the sum of $180,000.00EC. She seeks special damages in the sum of $77,529.00EC. The total damages which Dr. Mathurin Jurgensen seeks amount to $21,266,941.71EC (Twenty one million, two hundred and sixty six hundred thousand, nine hundred and forty one dollars and seventy one cents).
Background
The Government of Antigua (GOA) on 30th June 1982, leased Dr. Mathurin Jurgensen a parcel of land situate at Villa, Block 62 1492A, Parcel 17 and known as Rat Island. The lease was valid for 25 years. The lease provided Dr. Mathurin Jurgensen with an option to renew for a further 25 years. Rat Island was a historic site and Dr. Mathurin Jurgensen hoped to use the leased land as a more sophisticated historic site and tourist attraction combined with a handicraft and industrial arts center.
PUA is a statutory body that is governed by the Public Utility Act Cap 359 Laws of Antigua and Barbuda. It operates a wireless telephone service and desired to erect an antenna, run cable lines and other works on Rat Island in order to provide telephone services to its customers. Towards this end, it needed to obtain the greatest coverage and this necessitated the construction of a tower cell with antennae and cable lines. PUA needed to have specific levels of elevation and requested permission from Dr. Mathurin Jurgensen to erect the antennae and lay certain cable lines on the property in which Dr. Mathurin Jurgensen held the lease.
There were ongoing negotiations between the parties and a specific area was initially identified but no agreement was reached. Subsequently, the then manager of the PUA sought permission from Dr. Mathurin Jurgensen to erect the antennae on the summit of the property; the permission was refused.
Around the 2nd December 2005, PUA went on to the property, with backhoes and dug up the property, in order to lay cable lines. It also erected antennae. Despite Dr. Mathurin Jurgensen protestations, PUA refused to remove the antennae and cables that it had erected on the property. Dr. Mathurin Jurgensen complains that as a consequence of PUA's unlawful acts she has lost economic business opportunity and prearranged business financing.
Dr. Mathurin Jurgensen moved to the court and obtained an injunction to restrain PUA from continuing to occupy the leased property. Nevertheless, PUA officers persisted in their occupation of the leased property.
As a consequence, Dr. Mathurin Jurgensen filed this claim in which she seeks a number of reliefs including:
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(a) An injunction to restrain PUA from continuing to trespass on the property.
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(b) A declaration that PUA has acted ultra vires the Public Utilities Act Cap 359 Laws of Antigua, in failing to give her reasonable notice or any notice at all before embarking on the construction.
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(c) A declaration that PUA acted ultra vires the Public Utilities Act and the rules of natural justice.
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(d) Special Damages in the sum of $77,529.00EC.
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(e) General Damages for trespass including that for loss of economic business opportunity.
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(f) Exemplary Damages.
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(g) Costs
It is noteworthy that by the conclusion of the trial, Dr. Mathurin Jurgensen was seeking to recover damages in excess of twenty million dollars.
PUA takes issue with Dr. Mathurin Jurgensen's claim. It says that if at all any damage to the property was done to the reversionary interest in the property, this lies in the Government. Further, PUA strongly resists Dr. Mathurin Jurgensen's claim and denies that it committed any trespass as alleged or at all. While originally, PUA denied that it has caused the damage that is alleged by Dr. Mathurin Jurgensen as the case concluded, it seemed to resiled from that position.
In addition, it disputes that Dr. Mathurin Jurgensen is entitled to the compensation claimed or to any compensation at all. It however does not deny that it entered on the leased property without first obtaining Dr. Mathurin Jurgensen's permission.
Further, PUA implores the court not to grant any of the declarations that Dr. Mathurin Jurgensen seeks.
PUA further states that Dr. Mathurin Jurgensen's lease expired in March 2007 and that the GOA was not likely to renew it. In any event, the property is owned by GOA therefore any damage that was done was to the reversionary interest which interest in GOA. PUA further complains that it has sought to remedy the trespass but was prevented from entering the property by Dr. Mathurin Jurgensen.
Accordingly, PUA says that Dr. Mathurin Jurgensen is not entitled to any of the reliefs claimed.
Issues
The following issues arise for the court to resolve:
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(a) Whether PUA committed trespass to the property that was leased by Dr. Mathurin Jurgensen.
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(b)If so, the amount of compensation to which Dr. Mathurin Jurgensen is entitled.
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(c) Whether Dr. Mathurin Jurgensen is entitled to be compensated by PUA for loss of economic opportunity and the alleged prearranged financing of a project.
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(d) Whether PUA acted in breach of its statutory duty by entering the property and erecting the antennae on the property without giving any notice to Dr. Mathurin Jurgensen.
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(e) Whether Dr. Mathurin Jurgensen is entitled to the declarations sought.
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(f) Whether the court should grant Dr. Mathurin Jurgensen the injunctive relief that she seeks.
Evidence
Dr. Mathurin Jurgensen, Ms. Loretta Sharpe, Mr. Nathaniel "Paddy" James, Dr. Reginald Murphy and Mr. Wilbur Harrigan filed witness summaries and testified on behalf of Dr. Mathurin Jurgensen.
For the defence, Mr. Esworth Martin, Mr. John Bradshaw, Mr. Alan Williams, Mr. Daryl Mathew, Mr. Julian Wilkins provided the Court with witness statements and were cross-examined.
Court's Analysis and Findings of Fact
The Court has given deliberate consideration to the evidence aduced and the submissions of learned counsel. There were several factual matters that were not in dispute; however, there were many factual disagreements.
The court finds the following facts:
Dr. Mathurin Jurgensen leased property situate at Villa and known as Rat Island from GOA, for 25 years. The lease was granted in order for Dr. Mathurin Jurgensen to construct a Tourist Site and a handcraft centre and a historic site at Fort Saint John. The site has special features that qualify as a historic site. Once in possession of the leased property, Dr. Mathurin Jurgensen set about renovating it.
The lease gave Dr. Mathurin Jurgensen an option to renew it for another 25 years. Shortly before the expiration of the lease, she applied to have the lease renewed but the GOA did not accede to her request.
Dr. Mathurin Jurgensen intended to develop the land site at Fort Saint John and its central courtyard and was in discussion with investors in order to obtain an injection of funds into the project. The proposed project was named "Sun Park". These discussions were in their preliminary stages and not as advanced as Dr. Mathurin Jurgensen would have the court believe.
PUA is a statutory body that operates a wireless telephone service. It desired to erect antennae cable lines and other works on the property, in order to provide more efficient services to its customers. It was facing strong competition from its competitors. It sought the permission from Dr. Mathurin Jurgensen. There wasongoing discussion with the previous board. Those discussions did not result in any agreement between Dr. Mathurin Jurgensen and PUA Board of Directors.
PUA, nevertheless, entered the property without permission and conducted certain excavation works in order to erect cables, lines, antennae and other fixtures in the middle of the courtyard at Rat Island. In order to do this, they dug up a site at the summit of Rat Island. PUA went ahead and erected the antennae and lay cables in the summit of Rat Island, an area of the historic site. This was done despite the lack of permission from Dr. Mathurin Jurgensen and without her knowledge. Dr. Mathurin Jurgensen, on becoming aware of the actions of PUA sought to have it discontinue their actions, all to no at avail. She was forced to move the court in order to restrain it from continuing to occupy the property.
There is clear and uncontroverted evidence before the court, which indicate that PUA deliberately took the decision to remain on the property despite the protestations of Dr. Mathurin Jurgensen. The Court is convinced that the motivating factor for so doing was economic reasons and the need for PUA to obtain or maintain a competitive edge in relation to other service providers. In this regard, particular attention is given to the evidence elicited under the cross-examination of Mr....
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