Geoffrey Croft v Joseph W Horsford
| Jurisdiction | Antigua and Barbuda |
| Judge | Blenman J |
| Judgment Date | 29 January 2009 |
| Judgment citation (vLex) | [2009] ECSC J0129-1 |
| Date | 29 January 2009 |
| Court | High Court (Antigua) |
| Docket Number | CLAIM NO. ANUHCV2008/0559 |
IN THE HIGH COURT OF JUSTICE
CLAIM NO. ANUHCV2008/0559
Ms. E Ann Henry, Ms. C Debra Burnette and Mrs. Shahida Ali-Schneider for the Applicant
Mr. Joseph Horsford in person
Mr. Geoffrey Croft has filed an application in which he seeks to have the Court restrain Mr. Joseph Horsford from restricting or blocking his access along the western and eastern roads that access his home.
Background
Mr. Croft says that he is the Registered Proprietor of Land situated at Falmouth and registered as Registration Section: Falmouth and Bethesda, Block 34 2482B Parcel 217. He complains that having purchased the land in October 2006, he commenced the construction of his dwelling house and around the end of 2007 he started to do the landscaping on the road. He has used the western and eastern roads with vehicular traffic, which form the subject matter of this application, for at least 9 months. Having used the roads for that period of time, he says that Mr. Horsford approached him and told him that the roads were private roads and that he (Croft) required permission in order to use the roads by vehicles and that he would have to pay for the ability to use vehicles on the roads.
Mr. Croft contends that the Cadastral Survey plan does not indicate that the roads are private roads. He therefore continued to use the roads. However, Mr. Horsford wrote to him and indicated that unless he sought permission and enter into an agreement to pay, he will not be able to use the road for vehicular traffic. Exhibited to Mr. Croft's affidavit is a letter dated 15 th August 2008 from Mr. Horsford to Mr. Croft. The letter states that unless he "requests vehicular access, and is prepared to pay for it, all vehicles travelling to or from your premises will be stopped, and legal action may be taken against offenders. I am allowing you up to the 30 th September 2008 for you to make a request and to indicate that you are prepared to pay for such access. Note also, that the use of our property to carry telephone, water, television and/or internet services is a trespass, and action will be taken to stop the unlawful use of our property".
Mr. Croft says that for several months, the trucks and other vehicles used by the building contractors who constructed his home, travelled along the road. For what it is worth, other home owners have been utilising the same roads. He complains that Mr. Horsford has harassed him. Mr. Croft indicates that the roads are public roads and he says that unless the Court restrain's Mr. Horsford, he will be prevented by Mr. Horsford from using the roads by vehicle, and that he will suffer grave hardship since the roads are the only access that he has to his home, which is on a steep hill.
For his part, Mr. Horsford says that he was the owner of the parcel of land which Mr. Croft now owns and had no right of vehicular access to Parcel 171. There is no public road leading to Parcel 171 or 217 now or at any other time. He says that late in 2007, after he had learnt that Mr. Croft was in Antigua, he spoke to him and told him that his access did not include the use of any vehicles along the path. He indicated to Mr. Croft that there was the possibility of him being granted a right of vehicular access. In fact, what Mr. Croft calls public roads are in merely foot paths and that he has personal knowledge of his having acquired this knowledge for several decades. Mr. Croft's right of access is by foot and he has no intention to restrict or hinder in any way, his exercising that right. He denies that Mr. Croft would suffer any hardship if he is confined to exercise that limited right.
He strongly opposes the Court granting Mr. Croft the injunctive relief sought.
Issues
The issues that arise for the Court to resolve are as follows:
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(a) Whether, in the circumstances that obtain, the Court should grant the injunction restraining Mr. Horsford from blocking or impeding Mr. Croft's use of the eastern and western roads;
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(b) If the Court is inclined to grant the injunction, whether there should be fortification of the cross undertaking for damages.
Pleadings
Mr. Croft says that he is the registered owner of Parcel 171. He says that in August 2008, Mr. Horsford demanded that he obtain permission to drive on the roads. Mr. Croft has filed a claim in which he seeks a declaration that the roads running on the western and eastern sides of his lands are public roads and that he is entitled to the unrestricted passage along the roads, whether by foot or motor vehicle. He also seeks an injunction to restrain Mr. Horsford from blocking or in any way restricting his access along the road, as indicated in Mr. Horsford's letter dated the 15 th August 2008. He has referred the Court to what appears to be a cadastral map.
Mr. Horsford, in his defence, denies that the roads are public roads, but rather they are strips of land which are private in nature and belong to him. He contends that they are private roads and Mr. Croft has no right of vehicular access to them.
He further says that the land that Mr. Croft occupies was never sold for residential or housing purposes. They were agricultural lands with only foot paths for access. Mr. Horsford denies that the cadastral map indicates that the roads are public roads. He denies that he has ever threatened to block Mr. Croft's road access to Parcel 171.
Mr. Horsford's submissions
Mr. Horsford asked the Court to refuse the injunction sought by Mr. Croft. He submitted that Mr. Croft's affidavit evidence discloses no reasonable ground upon which an interlocutory injunction should be granted. Next, he said that the issue in this case rests entirely on the fact of the road in question is a public road. There is not a scintilla of evidence that the road or path in issue is a public road. The contention, as expressed by Mr. Croft, seems to be "if there is no record showing the paths as private roads, then they must be public roads". Mr. Horsford said that there must be some evidence that raise the issue of the road being a public road. Mr. Croft's mere averment that he maintains that the roads are public roads bears no evidential value; it is his private opinion, and there is nothing for (him) Mr. Horsford to argue or oppose. Mr. Croft provides no evidence to establish his rights of user to which he lays claim. Mr. Horsford argued that Mr. Croft must at least provide some evidence which supports his contentions. If Mr. Croft's rights lay in common law, he should show that the road in issue is in fact a public road, but there are no grounds on which it can be argued, for there is no evidence in this regard. Mr. Croft has failed to show that there is reasonable and legitimate cause to be resolved at trial. Mr. Horsford said that to the contrary, the cadastral map clearly shows two strips of land, the one at Parcel 100 on the west and Parcel 143 on the east; the other starting at Parcel 189 on the north and Parcel 234 on the south, with both strips running into and forming part of Parcel 252.
Finally, Mr. Horsford said that there is no evidence to show that the claimant would suffer any loss or damages if the injunction, which he seeks, is refused. Mr. Horsford quite properly referred the Court to American Cyanamid Co. v Ethicon Ltd [1975] 1 All ER 504. It was held:
"The grant of interlocutory injunctions for infringement of patents was governed by the same principles as those in other actions. There was no rule of law that the court was precluded from considering whether, on a balance of convenience, an interlocutory injunction should be granted unless the plaintiff succeeded in establishing a prima facie case or a probability that he would be successful at the trail of the action. All that was necessary was that the court should be satisfied that the claim was not frivolous or vexatious, i.e. that there was a serious question to be tried".
In Series 5 Software Ltd v Clarke [1996] C.L.C. 631, Laddie J quoted from Lord Denning's judgment in Hubbard v Vosper [1972] 2 QB 84, where he said:
"In considering whether to grant an interlocutory injunction, the right course for a judge is to look at the whole case. He must have regard not only to the strength of the claim but also to the strength of the defence, and then decide what is best to be done. Sometimes, it is best to grant an injunction so as to maintain the status quo until the trial. At other times it is best not to impose a restraint upon the defendant but leave him free to go ahead. The remedy by interlocutory injunction is so useful that it should be kept flexible and discretionary. It must not be made the subject of strict rules".
In the application, Mr. Horsford submitted that there is no foundation for the claim and no serious issue to be resolved at trial. The Court therefore should not grant Mr. Croft the injunctive relief sought.
Alternatively, Mr. Horsford stated that where the Court is minded to grant interlocutory injunction sought, it be considered that the hearing of the substantive matter cannot proceed without a valid statement of claim that the filed statement of case is null and void. In the case of Komodo Holdings Ltd v Bank (BVI) Ltd British Virgin Islands Civil Suit No. 72 of 2002, Matthew JA in his judgment sights the provisions of the CPR 8.7 (5) and CPR 3.12 (1) and he stated: "They are mandatory." In Dennis O. Poseley et al v Mariner International Bank Limited St. Vincent and the Grenadines Civil Suit No. 300 of 2001, Alleyne J, as he then was, commented on the text of The Civil Procedure Rules in Action chapter 11 paragraph B (1), and concluded: "The certificate of truth is thus not a mere formality but a valid element in the process of the claim, and must not be treated lightly".
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