Wills Kelsick Claimant v Kenny Durand Defendant [ECSC]
| Jurisdiction | Dominica |
| Judge | Brooks J |
| Judgment Date | 18 February 2011 |
| Judgment citation (vLex) | [2011] ECSC J0218-2 |
| Date | 18 February 2011 |
| Court | High Court (Dominica) |
| Docket Number | Claim No. DOMHCV2010/0128 |
IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
Claim No. DOMHCV2010/0128
By Fixed Date Claim Form filed on the 7th May 2010, the Claimant Mr Wills Kelsick filed an action against Kenny Durand seeking the following reliefs:
-
I. A declaration that the Defendant is not entitled to enter upon a portion of land at Joe Wesley in the possession of the Claimant;
-
II. An injunction restraining the Defendant whether by himself, his servants or agents from entering upon the said land and from threatening the Claimant;
-
III. Damages for trespass;
-
IV. Costs
On the said 7th May 2010, the Claimant filed his statement of claim fully setting out his claim.
On the 16th June 2010, the Defendant filed his Defence and Counterclaim in the matter
On the 17th July 2010, the Defendant filed an amended Defence to Counterclaim.
On the 29th July 2010, the Claimant filed his Reply to amended Defence and Defence to Counterclaim
The Claimant gave his evidence by witness statement and viva voce evidence. The Claimant who is in his early nineties claims that until 1999 he was the owner of some 17.25 acres of land located at Joe, Wesley. That he has been occupying that land continuously since 1952 and over the years he has been planting crops such as coconuts, mangoes, pears, limes, golden apples, sour sop, sugar cane, breadfruit, plantain, bananas, yams, dasheen and tanias on the said land. He also used some 3 acres of the land as pasture for his cattle, goats and sheep.
That in 1999 the Government of Dominica acquired 14 acres of the land located at Joe, Wesley for the construction of an international airport. The Government also at the same time acquired hundreds of other acres of farmland in the Joe, Wesley and Woodford Hill owned by other farmers in the area. Mr Kelsick also told us that he was paid for his land by the Government when they acquired it.
Mr Kelsick says that when the Government acquired his lands he had 14 acres of the land in cultivation and 3 acres as pasture and that he was recognized in 1999 as the biggest plantain producer in the area and a substantial producer of yams and tanias and that he enjoyed this status up until 2008.
In 2000 there was a change of Government in Dominica and the new Government of the day decided to put the plans of building the new international airport in that area on hold and, it is MrKelsick's evidence, that the then Prime Minister Roosevelt Douglas held a meeting with the farmers whose lands had been acquired and told them that they were to continue to occupy their land and plant on it until whenever the Government was ready to use it.
The Claimant told us that after being told this he continued to occupy and cultivate his land as he was before the acquisition by the Government.
That in or about 2004 Shirley Durand who is the mother of the Defendant went to work with the Claimant as a domestic helper and some two years after she started working for Mr Kelsick and his wife, he, Mr Kelsick decided to give her a portion of land to plant to assist her in maintaining herself and children.
Mr Kelsick said that he took her to a portion of land that he occupied at Joe and showed her a section in one of his plantain fields and told her she could cultivate there. He said that the land did not require cleaning and he got one of his labourers to come dig the plantain holes on the land for her and that labourer was paid by Miss Durand.
Mr Kelsick says that on another day he his wife and Miss Durand along with her brother went to the portion of land that he gave her and he along with his wife assisted her to plant the land and he also gave her brother permission to get plantain plants from his other portions of lands. He said that the land that he gave her was about half acre and it was part of the land that the Government had acquired from him.
The Claimant was adamant that the piece of land that he gave to Shirley Durand for her to farm was a "working piece of land"; he called it "a garden within a garden"; this of course was denied by the Defendant. Under cross examination Mr Kelsick told the Court that Miss Durand did not have to clear the land and that he gave her plantain slips out of the very same spot he gave her as well as from other parts of his garden.
The Claimant told the Court that at the time when he gave Miss Durand the garden, her son, the Defendant herein, was living in Roseau and he was a police officer and he would only come to assist his mother at the harvest.
The Claimant went on to tell us that one of his sons subsequently shared an intimate relationship with Shirley Durand and they subsequently lived in a house that he, Mr Kelsick, gave them when his son was in Dominica.
Mr Kelsick also told us that his son also had a farm which Shirley and her son assisted him on.
The Claimant's case is that in January 2010 the Defendant went onto lands owned by the State which he (Mr Kelsick) still occupied and planted and destroyed the crops that he had there and that he, the Defendant, was trespassing on the land that he, Mr Kelsick was occupying and planting.
The Claimant said that when he spoke to the Defendant about putting his cattle on the Claimant's land upon which he, the Claimant, had plantain on he was told by the Defendant that it was Government's land and that he, the Defendant had a right to go on it.
The Claimant said he later observed that the land was further cleared, prepared and crops planted and that he went onto the land and he uprooted the crops that were there.
Mr Kelsick told us that the crops that he pulled up were about 10 yams, 200 tanias, 25 potatoes and 10 plantain plants.
It is Mr Kelsick's evidence that he went to the Lands and Surveys Department to enquire whether Mr Durand was given permission to enter unto the lands and he was told not and that they would investigate the situation, that an officer of the said department did visit but he has heard nothing further from them on the issue.
The Claimant told us that he later visited the said plot and found Mr Durand there planting more crops and he told him that he would uproot the crops again and Mr Durand told him that the next time he, Mr Kelsick, uprooted the crops that he would break his hand.
That as a result of this conversation he was fearful of Mr Durand and to visit the said plot. That he sought to obtain the assistance of the Ministry and Department responsible for lands but to no avail hence he took the legal action currently before this Court.
At the hearing of the matter and with the Court's leave Mr Kelsick amplified his witness statement to say that he had not abandoned his land and he was cultivating his land with plantain, pears, golden apples, sweet sop, sugarcane, mangoes and sometimes potatoes.
Mr Kelsick said that he harvested plantains up to December 2009 and again in July 2010. That he harvested a good crop of pears from the land in 2009 prior to his going to the United States of America for medical attention and upon his return there were no pears on the tree. He further said he harvested cane in December and up to November 2009.
Generally speaking it is Mr Kelsick's case that he continued to occupy and farm the parcel of land which the Defendant sought to expand his cultivation to include. He said that it is usual for the farm to have grass and that every month one would have to weed and that there is no part of his farm that could really be considered as abandoned.
Mr Kelsick said that he was aware that the Government offered the land that they purchased from the farmers in the area for rent but that he never received a letter to this effect and I accept his evidence in this regard.
Mr Kelsick was adamant that he had not abandoned any part of his farm though it may not all be under cultivation and that he goes to his farm once a day once he is not ill and that he employs persons to work on his farm.
The Claimant called two witnesses in support of his claim, Mr Laban Telemaque, his grandson and Mr Vincent Greenaway who is a farmer residing in Wesley. Both witnesses spoke to Mr Kelsick's continued use of the land that was his prior to the Government's acquisition and to the fact that Mr Kelsick had not abandoned the land as alleged by the Defendant. The two witnesses also spoke of the Defendant's mother and the Defendant farming in the area and of the Defendant moving on to the land in question in January 2010.
Mr Telemaque spoke of rehabilitating the field consisting of two to three acres adjoining the Defendant's mother's plot at his grandfather's (the Claimant) request in November to December 2009 and that when he was half way through the exercise he noticed that some cattle were tied and grazing in the section which he had not yet cleaned and that the cattle trampled the plants that were in the area. He also spoke of seeing the area burnt and subsequently that tania and yam were planted there.
Mr Telemaque also spoke of planting plantain plants in the area that he cleared and in May/June 2010 he noticed that grass started growing on the land which he had cleared and not yet planted and noted that the said area was sprayed and the grass cut. That he later planted up the said area and that the plantain plants which he planted were uprooted and that he replanted some of them.
Mr Greenaway could be described as the Claimant's neighbor as he occupies land which bounds the Claimant's land at Joe where he lives and he owns three acres of land on the other side. He told the Court that he goes from his home to his farm every day in the week except Sundays and when he goes by foot he would have to cross the Claimant's land to get there and if he...
To continue reading
Request your trial