Enmore Estates Ltd v Village Council of the Buxton and Friendship Village District

• Jurisdiction: Caribbean States
• Judge: Lewis, J.
• Judgment Date: 29 July 1959
• Date: 29 July 1959
• Court: Federal Supreme Court (West Indies)
• Docket Number: Appellate Jurisdiction

Federal Supreme Court (On appeal)

Archer, C.J. (Ag.), Wylie, J.A. and Lewis, J.A.

Appellate Jurisdiction

Enmore Estates Ltd.

and

Village Council of the Buxton and Friendship Village District

Appearances:

Mr. S.L. Van B. Stafford, Q.C., instructed by Mr. J.E. DeFreitas for the plaintiffs-appellants

Mr. L.F.S. Burnham, instructed by Mr. H.B. Fraser for the defendants-respondents.

Contract - Performance — Parol agreement for right of way —

Contract - Parol agreement for a right of way — Terms

Lewis, J.

1 The appellants claimed against the respondents, a local authority, a declaration that a parol agreement for a right of way over and along a canal and dams on the Kryenhoff Empolder, made with the appellants in consideration of their undertaking certain works and paying an annual sum, was valid and binding on the local authority; a further declaration that they are entitled to a grant of and/or to enjoy the said right of way so long as their estate known as Plantation Lusignan continues in cultivation or, alternatively, for a period of 99 years from the 1 ^st January 1944; an order for the specific performance of the agreement; a further declaration that the local authority are not entitled to determine the right of way nor to prevent them from using the canals or dams, nor to levy a toll on their punts passing along the canal; and an injunction to restrain the local authority, their servants and agents, from interfering with the enjoyment of their franchise. The agreement was alleged to have resulted from correspondence in the year 1943 between the company, the local authority, the Local Government Department and the District Commissioner, a Government official. The trial judge held that the respondents had made a private contract with the appellants to allow the appellants' punts free and unrestricted use of the waterway upon the payment by the appellants of the annual sum of $500, ordered specific performance of that contract, and granted an injunction restraining the respondents from preventing the appellants from having the free and unrestricted use of the waterway; but he also held that the respondents could nevertheless exact tolls from the appellants under section 94 of the Local Government Ordinance, Chapter 154.

2 The appellants complain against the following portions of the judgment in which the judge held that tolls may be demanded from the appellants, namely:-

“The plaintiff-company, having therefore been granted a pass, were put in the same position with respect to their punts as the cane farmers' punts, and if it is conceded that tolls could be exacted from the cane farmers on the passing of their punts pursuant to the provisions of section 90 (now 94 of Chapter 150), then I can see no legitimate reason why notwithstanding this private contract, the same cannot be exacted, should it be deemed advisable, from the plaintiffs subject however to the approval of the Local Government board.

For my own part I do not see in the; instant agreement that the defendant-council have deprived themselves of the power to charge the plaintiffs' company such tolls as might enable them to cope with any emergency under the powers contained in section 90 (now section 94 of Chapter 154)”.

3 Section 94 of the Local Government Ordinance, Chapter 150 is as follows:-

“The local authority of any district may charge tolls, according to a tariff to be posted up at the village office or some other conspicuous place within the district, for bateaux, punts, or other craft, passing through any of the trenches, aqueducts, or kokers...