Michelet Meronard v Bahamas Telecommunications Company Ltd
| Jurisdiction | Bahamas |
| Judge | Madam Justice Crane-Scott, JA |
| Judgment Date | 11 August 2022 |
| Neutral Citation | BS 2022 CA 113 |
| Docket Number | SCCivApp. No. 155 of 2021 |
| Court | Court of Appeal (Bahamas) |
| Year | 2022 |
The Honourable Madam Justice Crane-Scott, JA
The Honourable Mr. Justice Jones, JA
The Honourable Madam Justice Bethell, JA
SCCivApp. No. 155 of 2021
IN THE COURT OF APPEAL
Civil Appeal — Trespass — Appeal from dismissal of Appellant's action — Whether the judge erred in finding that the First Respondent's entitlement to use the land arose from the exceptions and reservations for the utility easements and rights captured in the Appellant's conveyance — Defence of Laches — Negligent Misrepresentation — Fraudulent Misrepresentation — Whether the judge erred in finding that there was no misrepresentation on the part of the Second Respondent when the lot was sold to the Appellant — Importance of Pleadings — Burden of proof — Legal Burden — Evidential Burden — Sections 82, 83 & 84 Evidence Act
The Appellant appealed against the entirety of a written Judgment of a Supreme Court judge which denied his claims for trespass, misrepresentation, and breach of warranty against the Respondents; dismissed his action and awarded costs to the Respondents.
In his Notice of Appeal Motion the Appellant sought an order from the Court of Appeal which would: (i) set aside the Judgment in its entirety; (ii) order the Respondents to pay him damages for trespass and misrepresentation as claimed; and (iii) award him costs of the appeal and in the court below.
The Notice of Appeal raised 17 grounds of appeal (8 grounds against the 1 st Respondent (BTC) and 9 against the 2 nd Respondent (DevCo)) seeking to impugn the learned judge's decision in various ways.
After hearing arguments, the Court took time to consider its decision.
Held: Appeal dismissed. The judge's decision is affirmed in its entirety. The Appellant shall pay the Respondents' costs of the appeal, to be taxed if not agreed.
On the totality of the evidence led at the trial, the Appellant's complaint that the judge had ignored the pleadings has absolutely no merit and cannot be sustained. Having regard to the evidence led by BTC's 2 witnesses; and having regard as well to section 83 of the Evidence Act, the burden of proof remained on the Appellant to establish by evidence that he was in lawful possession of the land through which the 1 st Respondent's infrastructure ran. This he was unable to do.
The documentary evidence in the form of the Conveyance on which the Appellant relied to support his trespass action against BTC, clearly established that he was not in possession of those portions of the lot through which BTC's telecommunications infrastructure ran.
Even in the absence of BTC adducing documentary evidence of the 1986 purchase and acquisition of the assets and infrastructure of its predecessor, in the face of the exceptions and reservations to the grant set out in the Conveyance itself, the Appellant's trespass case against BTC could not possibly succeed. Quite simply, the evidence confirmed the presence of pre-existing utility infrastructure and apparatus within the Windsor Park Subdivision as well as easements, rights and privileges affecting the lot. The Conveyance itself clearly showed that while the Appellant became the legal owner of Lot 2, he never took ownership or possession of the “land and hereditaments comprised in BTC's undertakings and systems”; and more specifically, those portions of the lot through which BTC's existing cables and telecommunications services, undertakings and systems ran.
For all these reasons the Appellant could not maintain his claim in trespass. In the end, the judge was plainly correct to find that BTC's “ entitlements are captured in the conveyance” and to dismiss the trespass claim. In the result, we are satisfied that grounds 1 to 8 have no merit and they are dismissed. The learned judge's decision dismissing the appellant's trespass action against BTC is accordingly affirmed.
In the light of the authorities to succeed in his pleaded claim against DevCo for damages for negligent misstatement, the Appellant had to establish that DevCo knowing that it was being trusted or relied on by him to answer his inquiry of 16 July 2008, and having chosen to answer the question he posed, thereby created a special relationship between them to which the law attached a duty on DevCo to perform with such care as the circumstances required.
To establish a case of negligent misstatement against DevCo Mr. Meronard had a mountain to climb. In the first place his letter of inquiry of 16 July 2008 (extracted above) was addressed to the Port Group Limited, not DevCo. Secondly, Port Group Limited was not joined as a party to the action and agency was not expressly pleaded. Even so, it was denied and needed to be proved. Properly understood, Mr. Meronard's letter of 16 July 2008 inquiring as to the status of the lot was no more than a simple inquiry to the Port Group to ascertain whether Lot 2 Bonita Street, which he wished to purchase, was available for sale.
Furthermore, examination of the letter reveals that nothing in it can or could be interpreted as having conveyed to Port Group that it was being trusted or relied upon to answer questions or convey information as to the validity of the title or as to the existence of easements and underground cables on the property. Quite simply, Mr. Meronard failed to establish that there was any special relationship between himself and DevCo to ground his action in negligent misstatement against DevCo. DevCo's letter to Mr. Shurland of 17 February 2010 enclosing the draft conveyance for his review and approval, contained no false or misleading information, representations or warranties on which Mr. Meronard's pleaded claims could properly be founded.
The judge was quite correct to find that BTC's entitlements were “captured in the Conveyance” itself. In the face of the evidence of BTC's witnesses coupled with the exceptions and reservations for the utility easements and rights (expressly excluded from the grant) and described in the Conveyance itself, the judge was also plainly correct in her finding (at paragraph 47) that “there was contained in the conveyance to the property an easement for utilities”; and her further finding (at paragraph 52) that Lot 2 was “not burdened by the presence of the cables which ran along the boundary line between Lots 1 and 2.” There is no merit in grounds 9, 10, 11, 12, 13, 14, 15 and 17 and they are dismissed.
Bacciottini & anor v. Gotlee and Goldsmith (A firm) [2016] EWCA Civ 170 mentioned
Bahamas Ferries Limited v. Charlene Rahming SCCivApp. No. 122 of 2018 considered
Bartan Investment Co. Ltd v. Ricardo Anton Russell SCCivApp No. 113 of 2010 considered
Bocardo SA v. Star Energy UK Onshore Ltd and anor [2011] 1 AC 380 considered
Brooks v. Muckleston [1909] 2 Ch 519 mentioned
Chaffe v. Kingsley [2000] 1 EGLR 104 mentioned
Delta Properties Limited v. Bahamas Electricity Corporation SCCivApp. No. 1 of 2013 mentioned
Hedley Byrne & Co Ltd v. Heller & Partners Ltd (1964) AC 465 considered
In re Webb's Lease [1958] Ch. 808 considered
JA Pye (Oxford) Ltd v. Graham [2002] 3 All ER 865 mentioned
John Hanna v. Imperial Life Assurance Company of Canada [2007] UKPC 29 considered
Johnstone v. Holdway [1963] 2 WLR 147 considered
Loveridge and Loveridge v. Healy [2004] EWCA 173 mentioned
Mcphilemy v. Times Newspapers Ltd [1999] 3 All ER 775 considered
Moncrieff & Anor v. Jamieson & Ors (Scotland) UKHL 42 considered
Montague Investments Limited v. Westminster College Ltd & Mission Baptist Church 2015/CLE/gen/00845 mentioned
P. O. Nedlloyd v. BV Arab Metals Co. (No 2) (CA) [2007] 1 WLR 2288 mentioned
Powell v. McFarlane (1977) 38 P&CR 452 mentioned
Regency Villas Title Ltd v. Diamond Resorts (Europe) Ltd UKSC 57 considered
Rosalyn Brown v. Cotswold Group Limited and anor, [2020] 1 BHS J. No. 96 mentioned
Ryadell Defour v. The Attorney-General of Trinidad and Tobago [Unreported] Claim No. CV 2015-02212 mentioned
Schweder v. Worthing Gas Light & Coke Co [1912] 1 Ch. 83 considered
Shannon Ltd v. Venner Ltd [1965] Ch. 682 considered
Stackhouse v. Barston 19 Ves 453 mentioned
White v. Jones [1995] 2 AC 207 applied
Miss Travette Pyfrom Counsel for the Appellant
Mr. Raynard Rigby, Q.C. with Ms. Asha Lewis counsel for the First Respondent
Mr. Robert Adams, Q.C. with Mr. Edward Marshall II, counsel for the Second Respondent
Decision delivered by The Hon .
By Notice of Appeal filed on 30 December 2021, the Appellant (“Mr. Meronard”) appealed a written Judgment of the Hon. Justice Ruth Bowe-Darville (retired) handed down on 19 November 2021 in which she denied his various claims against the Respondents; dismissed his Supreme Court action and awarded them costs.
Mr. Meronard now seeks an order from this Court which would: (i) set aside the Judgment in its entirety; (ii) order the Respondents to pay him damages as claimed; and (iii) award him costs of the appeal and in the court below.
After hearing the parties' respective oral arguments, we reserved to consider the merits of the appeal.
We have dismissed the appeal. The detailed reasons for our decision appear below.
The following background facts (together with excerpts from the pleadings and relevant portions of the judge's written decision) will provide the necessary context for consideration of the grounds of appeal.
On 16 June 2008 Mr. Meronard wrote to the Port Group Limited inquiring as to the availability of Lot 2 Bonita Street, “Windsor Park” Subdivision and expressing his interest in purchasing the property. The relevant parts of Mr. Meronard's letter stated:
“Dear Sir:
Re: Block #2, Lot #2, Bonita Street, Windsor Park)
I write to the above captioned to which I request information on the...
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