Henry B. Augustine Complainant v Gloria Augustine Defendant [ECSC]

• Jurisdiction: Caribbean States
• Judge: Benjamin, J
• Judgment Date: 01 September 2011
• Judgment citation (vLex): [2011] ECSC J0901-1
• Docket Number: CLAIM NO. GDAHCV2001/0659
• Court: Eastern Caribbean Supreme Court
• Date: 01 September 2011

[2011] ECSC J0901-1

THE EASTERN CARIBBEAN SUPREME COURT OF GRENADA

AND THE WEST INDIES ASSOCIATED STATES

(HIGH COURT OF JUSTICE)

(CIVIL)

CLAIM NO. GDAHCV2001/0659

Between:

Henry B. Augustine

Complainant

and

Gloria Augustine

Defendant

Benjamin, J

1 The Claimant and the Defendant are in occupation of separate adjourning properties. The Claimant's property is on Chapel Lane and the Defendant's property is at corner of Depradine Street and Chapel Lane both in Gouyave in the parish of Saint John in Grenada. The Claimant's property measures 1693 square feet and is held by a Deed of Conveyance dated the 28^th day of March 1998. The Defendant's property consists of a two-storey concrete building on land measuring 976 square feet. The Defendant's possession is averred to be by reference of a Statutory Declaration executed by Lloyd Bernadine dated the 23^rd day of May, 2000 and which declares that the paid property was given by Theodore Alexander Snagg to his daughter, the Claimant, in the year 1988 before his death.

2 On December 4, 2001, the Claimant brought suit against the Defendant for alleged encroachments upon his property seeking the following relief:

• a. "A declaration that the Defendant is not entitled to enter or cross the Claimant's said land leading from the Claimant's land situated at Chapel Lane, Gouyave, St. John's.

• b. An injunction to restrain the Defendant whether by herself or her servants or agents or however from entering or crossing the Claimant's said lands.

• c. An order that the Defendant remove his pipes situation on the Claimant's land

• d. An order that the Defendant remove the portion of her roofing on her building situate at Chapel Lane, Gouyave, St. John's that is overhanging the Claimant's land.

• e. Special damages of $3,200.00

• f. Damages

• g. Further or other relief as the Court deems just.

• h. Costs."

3 In his Statement of Claim, the Claimant detailed three areas of complaint. Firstly, it was alleged that in refurbishing her building the defendant installed a concrete floor and a newroof on the upper storey and that the said roof overhangs the Claimant's land by two or three feet. No date was given for this refurbishment. Secondly, the Claimant alleged that in a further refurbishment in 2001 the Defendant installed pipes leading from her premises onto the Claimant's land to carry waste water from the Defendant's premises in front the public drain in front of the Claimant's premises. Thirdly, the Claimant complained of encroachment in 2001 by the erecting of steps where there previously is located a platform which projects one foot onto the Claimant's land. The Claimant asserted that since the construction of the step the Defendant and her servants or agents have been traversing his land to enter her premises.

4 It was pleaded that on October 5, 2001, the Claimant caused a wire fence to be erected on his land and the said fence was destroyed by the Defendant, her servants or agents. It is these three acts complained of and the incident referred to that were the fons et origo of the present suit.

5 The Defendant filed a Defence and Counterclaim. In written submissions and at trial, learned Counsel for the Defendant conceded the Claimant's right to have the offending portion of the overhanging roof as well as the water-pipe removed. Accordingly, orders will be made to reflect these undertakings as the Claim succeeds to this extent.

6 The main area of dispute relates to the Defendant's use of a portion of the Claimant's land to access the existing main and sole entrance to her dwelling on the upper storey of her building. The lower storey of the building is separately tenanted and enjoys its own access through doors on both Chapel Lane and Depradine Street. The Defendant has counterclaimed for a declaration of her right to traverse a walkway three to four feet wide and twelve (12) feet in length on the Claimant's land in order to access the Chapel Lane from the steps of her dwelling-house. The Defendant asserts the existence of a right of way or easement over the Claimant's land enjoyed without interruption for more than twenty (20) years before the present action was filed. In the alternative, it was contendedthat the Defendant is entitled to the walkway attached to the steps and platform by adverse possession under the Limitation of Actions Act, Chapter 173.

THE EVIDENCE

7 The Claimant asserted knowledge of the Defendant's property and its occupants from the late or early 1960's and he stated that he went to the premises in the 1970's when Mr. G. J. Boyke occupied the same with a lady. As a young boy he frequented the shop and later he would visit Peter Boyke, class-mate and son of G. J. Boyke. He admitted that there was concrete platform behind the house during the 1960's and that there was a door to the upstairs of the house leading from that platform which one had to climb onto from Chapel Lane. He said that there were a few treaders leading from the platform to the house upwards but there were no steps or any walkway from the platform to the road.

8 The Claimant told the Court that the Defendant made new steps from the ground to the platform where there were no steps before. He specifically denied that the walkway was in use since the 1960's to access the Defendant's premises. In his witness statement he iterated that access to the upper floor before the refurbishment was by means of an inner staircase from the lower floor.

9 The Claimant revealed that he left Grenada for England and since 1974 he has spent two months every year or every two years in Grenada. He recounted a conversation with the Defendant during which he asked her to sign a document but she refused. The conversation pertained to the walkway. The Claimant did recall that in his presence, Dr. Redhead, the Defendant's husband, told the Police that there was an allowed road on the land leading to the steps.

10 George Wilson was presented as a witness on behalf of the Claimant on the basis that he lived in close proximity to the Defendant's property for thirty-seven (37) years. He insistedthat the premises had inside steps which granted access to the upper floor and there was no other entrance to that floor. Although this witness admitted there was a platform to the back of the building, he said that there were never any steps from the ground to that platform nor any steps to the door at the upper floor. However, his viva voce testimony conflicted with his witness statement where he stated in two places that the steps to the back of the building on Chapel Lane was not used as the main means of access and he continued "the said steps was in existence but rarely used by the occupants of the building." Later in his said statement, he said that there was "a stone step" to the back of the building which did not extend to the platform.

11 George Wilson asserted that the use of the walkway is of recent vintage by the defendant as previous occupants of the premises never used the Claimant's land as a right of way. This was altogether confusing as the witness agreed that there was an exit door to the back of the premises upstairs and that the means of access by the platform was 'rarely' used. No explanation was given as to how this exit door was accessed...