Francis v Fuller

• Jurisdiction: Antigua and Barbuda
• Judge: Gordon, J.A.
• Judgment Date: 22 June 1967
• Neutral Citation: AG 1967 CA 2
• Docket Number: Civil Appeal Nos. 8 of 1965
• Date: 22 June 1967
• Court: Court of Appeal (Antigua and Barbuda)

West Indies Associated States Supreme Court

Lewis, C.J., Lewis, J.A., Gordon, J.A.

Civil Appeal Nos. 8 of 1965

Francis

and

Fuller

Appearances:

Mr. George with E.E. Harney for plaintiff/appellant

J.R. Henry for defendant/respondent.

Trespass - Trespass to chattel.

Facts: Evidence revealed that the appellants purchased a partially burnt outhouse, which was placed on the respondent's property. He took no steps to remove it. The respondent got a bulldozer to do so with the consequence that the entire house was destroyed. The issues were whether respondent used an unreasonable amount of force.

Held: Use of a bulldozer for the specific purpose of removing the house was excessive of the force, which would have been reasonable in the circumstances. Appeal allowed.

Gordon, J.A.

1 In an action for trespass brought by the plaintiff appellant against the defendant respondent for damages to the extent of $10,000 (ten thousand dollars), the Trial Judge, on the 19th day of July entered judgment for the defendant respondent with cost.

2 Being aggrieved, the plaintiff appellant has appealed against this judgment to this court. The following grounds of appeal were argued:

3 (i) The decision is against the weight of evidence.

• (ii) The learned judge was wrong in law when he holds that the defendant respondent was in possession or the site on which the house was located, and

• (iii) the learned trial judge was wrong in law in holding that there was any justification by the defendant for demolishing the plaintiff's house.

4 The facts, which gave rise to this appeal, when summarised, are as follows:

5 On 18th January 1963, the plaintiff appellant purchased at an auction sale, a partially burned house for $300, which at that time vas standing on the lands of the defendant respondent, these lands the defendant respondent claimed to be in possession as a licensee of government. He had, in fact, been in possession of these lands since 1952, for a ten-year period, and after 1961 when that licence expired, he continued in possession. Accordingly he was in possession of the land at the material time.

6 According to the findings of the trial judge, by an oral agreement between the parties prior to the auction sale, the defendant respondent was approached by the appellant, and it was then, agreed that the defendant respondent would not bid at the sale, but that he would allow the appellant to purchase the chattel house, provided he removed it from his land. It was so agreed, and as a result of this, the respondent did not even attend the sale.

7 After the sale had been effected, the appellant, instead of taking steps to remove the house, alleged that he could not remove the house unless further repairs were done to it. He consequently began doing repairs to that house, got in workmen, who were engaged on these so-called repairs for some five weeks.

8 The respondent became alarmed at the turn, which things were taking. He consulted the appellant, and had reason to believe that the appellant's premises to remove the house were not sincere. He consequently got in touch with his counsel, and by letter of the 13th February 1963, his counsel asked the appellant to put in writing that he would remove the house. That request was never complied with. The only reply, which was given to that letter, was that the matter was receiving active consideration.

9 After the appellant had thus indicated in no uncertain terms to the respondent that he did not intend to move the house, he further went on to say he was not moving the house because (a) the house was on government land and that (b) the respondent could do what he liked, he (the appellant) was not moving it.

10 It was suggested that this was a result of heated tempers, but the findings of the learned...