Frederick Baron v Blaircourt Property Development Ltd

• Jurisdiction: Dominica
• Judge: Baptiste JA
• Judgment Date: 23 November 2022
• Judgment citation (vLex): [2022] ECSC J1123-1
• Docket Number: DOMHCVAP 2015/0005
• Court: Court of Appeal (Dominica)

Between:

[1] Frederick Baron

[2] Atherton Martin

[3] Severin Mc Kenzie

[4] Joan Ettienne

Appellants

and

Blaircourt Property Development Ltd.

Respondent

Before:

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mr. Sydney Bennett Justice of Appeal [Ag.]

DOMHCVAP 2015/0005

DOMHCVAP 2015/0009

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Civil Appeal — Trespass — Whether the appellants had lawful business in connection with Blaircourt property — Whether the appellants departed from the Blaircourt property within a reasonable time after being asked to leave — Approach of appellate court on review of trial judge's factual findings — Whether the judge erred in law and in fact in the treatment of the evidence insofar as each appellant's evidence was not considered individually — Whether a judgment in other proceedings constituted admissible evidence — Exclusive possession — Proper party to bring claim — Whether the respondent was the proper party to bring the claim

Blaircourt Property Development Ltd. (“Blaircourt”) is the registered proprietor of 1.2 acres of land at Guillette (Savanne Paille) in the Commonwealth of Dominica. The Blaircourt property consists of seven buildings that house eight separate dwelling houses known as villas, each building is separated from the others by a driveway. The villas were constructed to house professors at Ross University School of Medicine. Blaircourt filed a claim in the lower court alleging that on 5 ^th December 2009, the appellants, along with ten to twelve other people, wrongfully entered its property by driving and parking their vehicles thereon and walking the grounds thereof; and, in the case of Atherton Martin (“Martin”), Severin Mc Kenzie (“Mc Kenzie”), and Joan Ettienne (“Ettienne”), entered at least two vacant villas without its permission or license. Blaircourt also claimed that the appellants stayed on its property for thirty minutes before leaving, despite Renneth Alexis (“Alexis”), its owner and managing director, repeatedly asking them to leave.

Each appellant filed a defence denying trespassing on the property and claimed that they stayed on the public road. Martin, Mc Kenzie, and Ettienne also denied entering the vacant villas, claiming that they stood on the public road and observed the buildings from there. In their defence, the appellants also claimed that their presence at Guillette was of public interest and curiosity. It was partly an investigation into how the Dominica Cabinet's approval of a full suite of financial concessions to Blaircourt to construct the villas were diminishing the public purse. As a result, the villas have been elevated to the level of public consideration, concern, and interest.

The trial judge found the appellants liable for trespass and awarded damages against them, inclusive of exemplary damages. Being dissatisfied with the decision, the appellants filed several grounds of appeal. Blaircourt conceded the grounds of appeal relating to exemplary damages and filed a counter-notice of appeal challenging the quantum of damages awarded for trespass. The issues which arose for consideration on appeal were primarily against (i) the factual finding of the judge that the appellants are liable in trespass with respect to Blaircourt's property; (ii) whether the appellants departed from the Blaircourt property within a reasonable time or with reasonable expedition after being asked to leave; (iii) whether Blaircourt was the proper party to bring the claim; and (iii) whether a judgment in another matter constituted admissible evidence in the case.

Held: allowing the appeal, setting aside the order and declaration of the learned judge, awarding prescribed costs in the court below to the appellants and twenty five percent on appeal; and dismissing the counter-notice of appeal, that:

• 1. It is a function of the trial judge who has seen and heard the witnesses to form his own evaluation of the credibility or reliability of the evidence. The mere fact that a trial judge has not expressly mentioned a particular piece of evidence does not mean that he overlooked it. An appellate court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into consideration.

  Matteo Volpi v Gabrielle Volpi and another [2022] EWCA Civ 464 applied; Henderson v Foxworth Investments Ltd and another [2014] UKSC 41 applied; Re F (Children) [2016] EWCA Civ 546 applied; Watt (or Thomas) v Thomas [1947] AC 484 applied.

• 2. The difficulties attendant upon a successful prosecution of an appeal against factual findings and the chariness of an appellate court in overturning findings of fact of a trial judge are well established. Where any finding involves an evaluation of facts, an appellate court must take into account the fact that the judge has reached a multi — factorial judgment, which takes into account his assessment of many factors. The correctness of the evaluation is not undermined by challenging the weight the judge has given to elements in the evaluation, unless it is shown that the judge was plainly wrong and reached a conclusion which on the evidence he was not entitled to reach.

  Perry v Raleys Solicitors [2019] UKSC 5 considered; Langsam v Beachcroft [2012] EWCA Civ 1230 applied; Henderson v Foxworth Investments Lt and another [2014] UKSC 41 applied; Fage UK Ltd and another v Chobani Ltd and another [2014] EWCA Civ 5 applied.

• 3. The duty of the trial judge to give reasons for decision is necessary for due process and the administration of justice. Fairness requires that the parties, moreso the losing party, should be in no doubt as to why they lost or won. The extent of the duty or the reach of what is required to fulfill it depends on the subject matter. The judgment needs to make it clear both to the parties and to the appellate court, the judge's reason for his conclusion on the critical issues. There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. His function is to reach conclusions and give reasons to support his view.

  Flannery and another v Halifax Estate Agencies Ltd (Trading as Colleys Professional Services) [2000] 1 WLR 377 applied; English v Emery Reinbold & Strick Ltd. [2002] EWCA Civ 605 applied; Fage UK Limited v Chobani UK Limited [2014] EWCA Civ 5 applied.

• 4. It is well established that a person entering private property should have a lawful or legitimate purpose for so doing. The entry must be justified by showing that the entry was with the consent of the occupier or the entrant otherwise had lawful authority to enter the premises. There is an implied licence to any member of the public coming on lawful business to come through the gate and knock on the door. The purpose for entering has to be legitimate and involve no interference with the occupier's possession or injury to any person present. A desire to satisfy one's curiosity is not a lawful purpose for entering private property.

  Entick v Carrington [1558–1774] All ER Rep 41; Roy v O'Neill [2020] HCA 45 applied; Robson and another v Hallett [1967] 2 QB 939 applied; Halliday v Nevill [1984] HCA 80 considered.

• 5. The proper claimant in trespass is the person who has or is deemed to be in possession. Where land is vacant the owner has sufficient possession to sue in trespass. It was unchallenged that only villas 2,6 and 7 were occupied by tenants at the time. Villas 3 and 4 were vacant and unoccupied at the material time and thus were in possession of Blaircourt. Therefore, Blaircourt was authorized to bring the claim in trespass.

• 6. An authority to enter land may be revoked and if revoked, the entrant has no authority to remain on the land but must leave as soon as is reasonably practicable. When a licence is revoked, and as a result of which, something has to be done by the licencee, a reasonable time must be implied in which he can do so. There is no evidence that after the licence was revoked, the appellants sought to ignore or ignored the revocation by remaining on the Blaircourt property or delayed in leaving. Thus, it is reasonable to infer that the appellants left the property with reasonable expedition or within a reasonable time after being told to leave. In the circumstances, they would not be considered as trespassers.

  Murat Kuru v State of New South Wales [2008] HCA 26 applied; Robson and another v Hallett [1967] 2 QB 939 applied.

• 7. The general principle is that factual findings by one judge cannot bind another judge in different proceedings. The rule extends to render factual findings made by judges in civil cases inadmissible in subsequent proceedings unless the party against whom the finding is sought to be deployed, is bound by it by reason of an estoppel per rem judicatum. The rule precludes reliance on criminal convictions in subsequent civil proceedings and applies to findings of fact in civil proceedings.

  Hollington v F. Hewthorn and Company Limited and another [1943] KB 587 applied; Calyon (a company incorporated under the laws of the Republic of France) v Irene Michailaidis & ors [2009] UKPC 34 applied; Rogers and another v Hoyle (Secretary of State for Transport and another intervening) [2015] QB 265 applied.

• 8. On the issue of costs, the general rule is that costs follow the event. The unsuccessful party will be ordered to pay the costs of the successful party, but the court may make a different order having regard to all the circumstances. It is not automatic that the costs of the successful party will be reduced because it lost on some issues. The more significant and self-contained the issues on which the successful party has lost, the more likely it is that some downwards costs adjustment for that failure is appropriate.

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