Osbourne Roberts Claimant v Romeo Roberts Attorney General Defendants [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: Blenman, J
• Judgment Date: 17 August 2006
• Judgment citation (vLex): [2006] ECSC J0817-3
• Court: High Court (Antigua)
• Docket Number: CLAIM NO ANUHCV2003/0400
• Date: 17 August 2006

[2006] ECSC J0817-3

IN THE HIGH COURT OF JUSTICE

CLAIM NO ANUHCV2003/0400

Between:

Osbourne Roberts

Claimant

and

Romeo Roberts

Attorney General

Defendants

Appearances:

Dr David Dorsett for the Claimant

Mrs Carla Brooks Harris Crown Counsel1 for the Attorney General

Mr. Romeo Roberts in person

Blenman, J

1 This is a claim for nuisance together with an ancillary claim for indemnity for damages. This judgment also incorporates the Court's assessment of the damages.

Background

2 Mr. Osbourne Roberts (Mr. Osbourne) is an Antiguan who resides in St. Thomas. He owns property situate at Urlings St Mary's in Antigua and Barbuda (the property).

3 The Crowns owns a parcel of land (the Crown's land) registered as Registration Section:South East Block 55 1382F Parcel: 37 and adjoins Mr. Osbourne's land. The Crown's land is the only means by which Mr. Osbourne could access his property.

4 Mr. Romeo Roberts (Mr. Romeo) occupies the Crown's land from which he carries on the business of mechanical repairs.

5 Mr. Osbourne alleges that Mr. Romeo has committed acts of nuisance in relation to his (Osbourne's) property and that the Ministry of Agriculture has failed or refused to prevent Mr. Romeo from continuing to do so. Mr. Osbourne obtained default judgment against Mr.Romeo.

6 Mr. Osbourne asserts that despite his several requests, the Crown has refused and or neglected to have Mr. Romeo abate the nuisance. He therefore seeks compensation from the Crown.

7 The Attorney General is sued under the Crown Proceedings Act Cap 12 Laws in his official capacity as the representative of the Ministry of Agriculture, Land and Fisheries (Ministry of Agriculture).

8 On behalf of the Attorney General it is contended that several public/government officials have intervened on numerous occasions to prevent Mr. Romeo from impeding Osbourne's access to land.

9 The Attorney General denies that Mr. Osbourne ever complained to the relevant officers about Mr. Romeo dumping garbage on the Crown's land. Mr. Osbourne's complaints were only in relation to the fact that his (Mr. Osbourne's) access the road was blocked.

10 The Crown further denies that Mr. Romeo has created the acts of nuisance as alleged by Mr. Osbourne or at all.

11 The matter came on for trial in order for the Court to determine whether Mr. Osbourne has established his claim against the Crown.

12 The Attorney General filed an ancillary claim against Mr. Romeo. During the trial Mr. Romeo did not defend the ancillary claim brought by the Attorney General

13 Mr. Romeo though present in Court took no part in the proceedings

14 Judgment was entered for the Crown against the Mr. Romeo on the ancillary claim to the extent of any damages, if any, the Court awards.

Issue

15 The first issue the Court has to resolve is whether or not the Crown has neglected or refused to cause the nuisance, if any, created by Mr. Romeo to be abated.

16 The next issue is what quantum of damages if any, the Court should award to Mr. Osbourne.

Law

17 The Public Health Act, Cap 353 Laws of Antigua and Barbuda (the Act) is relevant to the matter.

18 Section 2 of the Act defines "injurious" to include dangerous;

"nuisance" means anything which is capable of being abated either by the person or persons concerned or by the Board."

19 Section 22 of the Act provides as follows:

"On the receipt of any information respecting the existence of a nuisance liable to be dealt with summarily under this Part, the Board shall, if satisfied of the existence of a nuisance, serve a notice on the person by whose act, default or sufferance the nuisance arises or continues, or if such person cannot be found, on the occupier or owner of the premises on which the nuisance arises, requiring him to abate the nuisance within the time specified in the notice, and to execute such work and to do such things as may be necessary for that purpose, and if the Board think it desirable (but not otherwise), specifying any works to be executed."

20 Section 23 of the Act states that:

"If either

(a) the person on whom a notice to abate a nuisance is served as aforesaid makes default in complying with any of the requisitions thereof within the time specified;

(c) the nuisance although abated since the service of the notice, is, in the opinion of the board, likely to recur on the same premises

the Board shall make a complaint before a Magistrate, and such Magistrate may make on such a person a summary order."

Evidence

21 Mr. Osbourne testified in support of his claim and called one witness Mrs. Roselyn Williams (Ms. Williams). Mr. Lionel Michael (Mr. Michael) the Chief Health Inspector testified on behalf of the Attorney General.

Mr. Osbourne's evidence

22 Mr. Osbourne said that on or around July 2002 Mr. Romeo piled up garbage on the Crown's land and blocked his waterway causing water to "back up" into his house damaging his (Osbourne's) house. As a result, there was flooding to his house and he had to expend a lot of money to have his house cleaned. Mr. Osbourne was forced to erect a concrete wall around his house in order to keep the water out. Mr. Osbourne tendered a number of receipts into evidence in support of his contention that he had to expend various sums of money to repair his property; the receipts are all dated 2000.

23 Mr. Osbourne said that he reported the matter to an officer of the Fisheries Department on several occasions and to Mr. Dueberry all to no avail.

24 In addition, Mr. Romeo placed dirt over gravel and filling that Mr. Osbourne had left on the Crown's land with which he had intended to construct a driveway on the Crown's land in order to access his house. Hurricane Lenny came and swept the dirt into the gut in front of his (Mr. Osbourne's) property blocking him in. Despite several pleas to Mr. Romeo, Mr. Osbourne complained that Mr. Romeo refused to remedy the situation.

25 Mr. Romeo continuously blocked the entrance to Mr. Osbourne's gate by leaving heavy earth moving equipment in front of his gate together with various vehicle parts such as old trees.

26 On various occasions, Mr. Romeo entertained his friends on the Crown's land and left the remains of food and garbage there, this caused rodents and other insects to infect the area. Fumes also emitted from the garbage.

27 Mr. Osbourne said that he made several complaints to Mr. Michael the latter who convened meetings with Mr. Romeo, Mr. Duberry, and Mr. Osbourne. Mr. Dubery and Mr. Michael directed Mr. Romeo to desist his use of the land in the manner that was causing the nuisance. These directions fell on deaf ears.

28 Mr. Osbourne further complained that Mr. Romeo lit fires on the Crown's land and blocked the drive way by placing a backhoe on the driveway.

29 Ms Osbourne alleges that he has suffered loss and damage as a consequence of Mr. Romeo's act. His house has diminished in value to the extent of $20,000. He claims special damages reflected by the cost of repairs to stone work in the sum of $3,473.14 together with the diminution in the value of his property to the tune of $20,000.00. The total sum being $23,473.14. He seeks general damages in the sum of $75,000.00.

30 Mr. Osbourne complains that as recent as the date of the hearing of the matter Mr. Romeo had placed garbage on the Crown's land. Tyres are in front of the entrance of his house and blocking his entrance.

31 Mr. Osbourne further states that meetings were held between himself, Mr. Romeo and Mr. Michael and while Mr. Romeo was requested to clean the yard he has flatly refused to do so. He stated that even though Mr. Romeo was requested on several occasions to clean the Crown's land he (Romeo) has refused. Mr. Osbourne is of the view that the Crown has failed or refused to take reasonable steps to prevent Mr. Romeo from using the Crown'sland in an unlawful manner and therefore the Crown has breached its duty and has failed to abate the nuisance created by Mr. Romeo.

32 Learned Crown Counsel, Mrs. Carla Brooks-Harris cross examined Mr. Osbourne at length. Mr. Osbourne maintained during vigourous cross examination that Mr. Romeo had several trucks parked on the Crown's land and impeded his access to the road. The Crown's land is the only means by which he could get to his property.

33 Mr. Osbourne was adamant that as a consequence to the flooding in his yard, caused by Mr. Romeo several acts, water and dirt entered his home and he (Osbourne) had to expended the sum of $3,473.00 in order to clean his home and to construct a wall to prevent the water and dirt from entering.

34 Under further skilful cross examination by Mrs. Brooks-Harris, Mr. Osbourne was forced to admit that he did not have experience in the valuation of the property. At no time did he obtain a valuation of the property. He was nevertheless of the opinion that his property had devalued to the extent of $20,000.

35 He insisted that he made several reports to Mr. Michael about the garbage that Mr. Romeo has thrown on the Crown's land.

Mrs. Williams's evidence

36 Ms. Williams supported Mr. Osbourne and stated that she visited Mr. Osbourne's house at Urlings. On one occasion she saw Mr. Romeo throwing old wood, tyres and garbage on the Crown's land into a burning fire. The fire was about 10 feet from Mr. Osbourne's bedroom window and smoke from the fire was coming through Mr. Osbourne's bedroom. She also witnessed Mr. Romeo place his backhoe and blocked the entrance to Mr. Osbourne's driveway.

Mr. Michael's evidence

37 Mr. Michael is the Chief Health Inspector within the Ministry of Health and Sports. Mr. Michael admitted that Mr. Osbourne had made several complaints to him about Mr. Romeo dumping garbage and parking heavy duty vehicle on the Crown's land. As a result of the complaints, he convened several meetings with Mr. Osbourne, Mr. Romeo the then Chief Land Officer and Mr. George Duberry. Mr. Michael...