Ashworth Williams Claimant v Royston Andrew Defendant [ECSC]

• Jurisdiction: Dominica
• Judge: Cottle J,Brian Cottle
• Judgment Date: 13 July 2013
• Judgment citation (vLex): [2013] ECSC J0130-5
• Docket Number: DOMHCV2010/0105
• Court: High Court (Dominica)
• Date: 13 July 2013

[2013] ECSC J0130-5

IN THE HIGH COURT OF JUSTICE

[CIVIL]

Before:

The Hon. Justice Brian Cottle

DOMHCV2010/0105

Between:

Ashworth Williams

Claimant

and

Royston Andrew

Defendant

Cottle J

1 The claimant is the registered owner of a portion of land at Durham Estate in Giraudel. He purchased the parcel, admeasuring some 3.080 acres in 1993 from Stafford Shillingford. Access to the parcel was then via a footpath which traversed a ravine. The claimant avers that this ravine made the footpath dangerous during times of rain. The claimant and other neighbouring land owners sought and obtained the permission of Louisa Benoit to use a foot path over lands that belonged to the Estate of Bobby Junkere.

2 Louisa Benoit is now deceased. She was the daughter of Bobby Junkere. No evidence has been led as to who, if anyone, are the personal representatives of Bobby Junkere. No evidence has been led to show how his estate has been administered or indeed whether it has been administered at all.

3 After receiving the permission of Ms. Louisa Benoit in 1994 the claimant and other land owners hired a caterpillar operator who cut an access road through the land of the estate of Bobby Junkere. In his statement of claim the claimant swears that he used this access road without demur until 2004 when the defendant blocked the road and denied him access. He thereupon filed the present claim seeking damages for trespass and mesne profits. He also seeks to be permitted to continue his use of the access road and prays that an injunction be granted prohibiting the defendant, his servants or agents from entering on the road.

4 In his defence the defendant says that the access road is on his property and that he has been using it since 1993. He says that the claimant has alternative access to his lands and had been using that access until 2004 when he sought to use the access road over the defendant's property.

5 The claimant gave evidence as did two other neighbouring land owners. They testified along the lines of the statement of claim that they received the permission of Louisa Benoit to cut the access road. They cut that road along a previously existing footpath. A surveyor, Mr. Gaetan Seaman was the surveyor who hatched off from the master plan of the Durham Estate the portions of land now owned by the claimant and his two witnesses. He says that on the master plan is shown a footpath "which has been in use from time immemorial and the same path used (sic) to create the access road to the properties including that of Ashworth Williams."

6 In his submissions counsel for the claimant argues that the effect of Section 8 of the Title by Registration Act Chap 56:50 of the Laws of the Commonwealth of Dominica is to give his client indefeasibility of title. Next he points to section 19 of the Conveyancing and Law of Property Act Chap 54:01 which reads:

"A conveyance...