THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
FEDERATION OF ST. CHRISTOPHER AND NEVIS
SUIT NO: NEVHCV2009/0091
Leonora Jean Jacques ‐ Claimant
Leon Gumbs – Defendant
Ms. Kalisia Isaacs for the Claimant.
Ms. Kurlyn Merchant for the Defendant
2014: May 21, June 16, July 21
2014: September 24
 WILLIAMS, J. (Ag): This matter is before the Court by way of fixed
date Claim Form with a Statement of Claim whereby the Claimant
Leonora Jean Jacques seeks the following relief against the Defendant
a) Recovery of possession of a stone wall forming the south‐eastern
boundary of the Claimant’s 0.4452 acre of land situate at
Morning Star Estate, and separating the Claimant’s land from
the Defendant’s 0.6814 acre of land, which said stone wall has
served as a protective fence for the Claimant’s property in excess
of 54 years.
b) A declaration that the Claimant is entitled to Claim the stone
wall as hers even if it is found by this Honourable Court, that a
portion or even the whole of the stone wall forms a part of the
Defendant adjoining 0.6814 acre of land, and that the Claimant
would have acquired title to the same based on possession by
herself and her predecessors in title for in excess of 54 years.
c) An Injunction restraining the Defendant whether by himself, his
servants and/or agents from further trespassing on, entering on
or interfering with the stone wall of the Claimant, the subject
matter of this action.
d) General and special Damages for Trespass.
f) Such further and other relief as this Court deems fit.
 The Claimant in her Statement of Claim sets out particulars of
special Damage in the sum of $9515 and a further $7860 to repair
the wall as a result of heavy rainfall caused by a Hurricane.
 The Defendant Leon Gumbs is the owner of 0.6814 acre of land
situate on the south western boundary of the Claimant’s land,
situate at Morning Star Estate St. John’s Parish, Nevis. The said
lands are registered in Block 43, Folio 177 of the Registrar of Titles
for the Nevis Circuit.
 The Defendant has filed a Defence and Counterclaim denying:
a.) that the stone wall belongs to the Claimant
b.) that he removed the stone all or any part of it
c.) that the stone wall has been destroyed or that his agents
caused any damage to the said stone wall.
 The Defendant has also counterclaimed for;
a) Damages for Trespass on his land by the Claimant.
b) An Order that the Claimant be restrained whether by
herself, her agents or servants, from interfering with the
Defendant’s use and enjoyment of his lands described in
Certificate of Title in his favour dated 20th May 2005 and
recorded in Register of Tiles for the Nevis Circuit,
including the stone wall situate on the Defendant’s land.
c) Such further or other relief as the Court deems just.
 According to the pleadings the stone wall referred to is the south
western boundary of Leonora Jean Jacques land and common
boundary to Leon Gumbs’ land. This boundary was created
during a division of property by John Howell in 1954 and first
described in Book 7 Folio 99. The boundary was marked and
described as a “stone wall” in the title and subsequent titles in the
chain of records, (i.e.) namely Benjamin Liburd dated 29th March
1954 and registered in Book 7 Folio 99, and Christianna Melvina
Liburd in Book 24 Folio 69 in July 1986. The present title in favour
of Leonora Jean Jacques registered in April 1989 in Book 27 Folio
81 does not label the south western boundary as “stone wall”, but
as lands belonging to Anthony Gumbs. This title was created from
a survey conducted by Hilton Lawson during a subdivision of the
land held by her mother Christianna Melvina Liburd in June 1988.
Adjoining records starting in July 1939 and held by Nathan
Williams does not label the said boundary as “stone wall” nor do
subsequent titles of Anthony Gumbs or Leon Gumbs. The parcel
of land held by Nathan Williams in Book 18 Folio 85 was also
further subdivided and transferred to Doreen Baker registered in
Book 16 Folio 43 and Clive Beverly Baker registered in Book 44
 According to the witness statement of the Claimant, the stone
wall has been in the Claimant’s family from around 1954. At that
time her family which consisted of her father Benjamin Liburd,
her mother Christianna M. Liburd and her siblings moved to the
said plot of land from where the family was originally living at
Burden Pasture. The land was bought by the Claimant’s father
from John Howell and his Certificate of Title recorded in Register
Book 7 Folio 99 of the Register of the Book of Titles shows a stone
wall around the entire perimeter of the said land.
 According to the Claimant, this was the only property with a
stone wall constructed all around it, and the wall was at all times
used to fence the family’s crops, to protect the land from
trespassers and animals, and to prevent soil on the south western
boundary of the land from being eroded.
 After the death of the Claimant’s father, Christianna Liburd,
mother of the Claimant’s obtained a Certificate of Title to all the
lands held by the deceased, then partitioned the said lands and
transferred to the Claimant in 1989 the plot of land which she now
holds a Certificate of Title and is the subject of this matter before
 In March 1988, the Defendant’s father Anthony Gumbs acquired
the neighbouring lands on the Claimant’s south western
boundary from Nathaniel Williams. On the 20th May 2005, the said
land was transferred to the Defendant by his father and his Title
was recorded in Register Book 26 Folio 31 of the Register of Titles.
 The Defendant Leon Gumbs in his witness statement at
paragraph 5 (c) states that the stone wall was built by the said
Nathaniel Williams prior to Benjamin Liburd becoming owner of
the adjoining land. That wall was built for the purpose of
protecting his land from erosion. The Defendant also claims that
the stone wall was always located on the land of Nathaniel
Williams and his successors in title, including the Defendant
himself, and that the stone wall currently belongs to him.
 The Defendant also claims that his Certificate of Tile, and his
father’s Certificate of Title to the said land, both clearly show that
the Registered proprietor owns an access road 9.96 feet in width,
and not a footpath as stated by the Claimant.
 According to the Defendant in his oral evidence on or around 10th
September 2007, he went to the said access road with a backhoe
operator to clear a portion of his land including the access road to
his land. The Claimant approached the backhoe operator and
stood in the way of the backhoe. He called the police on two
occasions and they advised the Claimant to leave his (the
 According to the Claimant the Defendant caused serious damage
to her wire fence which was constructed in the middle of the wall.
The Claimant states that she rebuilt the wall after it was
destroyed; but in May 2009 the Defendant ran water pipes along
the length of the stone wall and trespassed unto the said stone
 As a consequence of this, Ms. Leonora Jean Jacques filed an
Application for an Injunction on the 18th day of June 2009 and the
Court granted the following orders in the terms stated below;
“The parties undertake that:
i. Neither party shall by themselves and/or their servants or
(a.) Remove or substantially interfere with the structural
integrity of the dry tone wall along the boundary of
their adjoining land.
(b.) Walk, stand or sit on the said dry stone wall.
ii. The status quo in relation to the presence of the water pipes
on the wall shall remain until the substantive matter is
determined or until further order.
 The Defendant Leon Gumbs takes issue with Ms. Leonora Jean
Jacques Claim. He denies that the stone wall belongs or even
belonged to the Claimant and contends that the Claimant
wrongfully erected a wire fence on his property in 2005.
 The Defendant also states that he had employed the services of a
backhoe operator to clear a portion of his land and the access road
to the land when the Claimant went into his land and stood in the
way of the backhoe operator, and the police had to be called to
resolve the dispute.
 The Defendant insists that the stone wall was built by Nathaniel
Williams about 1946 to protect the land from erosion. The stone
wall according to the Defendant attaches to the land and its
ownership runs with the ownership of the land on which it is
situate. He submits that ownership of the stone wall passed from
Nathaniel Williams to Anthony Gumbs and subsequently to him.
 Accordingly the Defendant has counterclaimed for Damages for
Trespass by the Claimant, an Injunction to restrain the Claimant
from interfering with the use and enjoyment of his land and a
Declaration that the Claimant’s wire fence encroaches on his land
and constitutes a continuing trespass.
 The Defendant states that the Claimant is not entitled to any to
any of the relief claimed.
 The following issues arise for the Court’s determination;
a) Whether the Defendant L. Gumbs has committed trespass to
property that is owned by the Claimant, Leonora Jean
b) Whether the Claimant is entitled to claim the stone wall.
c) Whether the Defendant caused to be moved portions of the
stone wall in 2007 and 2009 and if so should the Claimant
be compensated for any alleged repairs to the stone wall.
d) Is the 9.96 feet road appearing on the Defendant’s Certificate
of Title a private access path of the Defendant or a shared
e) Whether Ms. Jean Jacques is entitled to be compensated for
alleged Trespass to her property by the Defendant.
f) Whether the Defendant is entitled to be compensated by the
Claimant for Trespass to his property.
g) Whether the Court should grant injunctive relief to any of
 Ms. Leonora Jean Jacques and Mr. Simeon Hill testified on behalf of the
Claimant, and were cross‐examined.
Mr. Leon Gumbs, Mr. Elmo Farrell testified for the Defence and were
Court’s Analysis and Findings of Fact
The Court has given careful consideration to the evidence adduced by
both sides and the written submissions of both learned Counsel.
 The Court finds the following facts;
Ms. Leonora Jean Jacques the Claimant in this matter is the legally
registered proprietor of property situate at Morning Star Estate and
recorded at Book 27 Folio 8 of the Register Book of Titles at the High
Court Registry, Charlestown, Nevis.
 The Claimant relies on her father Benjamin Liburd for her title to the
property. Benjamin Liburd bought land at Morning Star Estate in 1954
from John Howell. That land is recorded in Book 7 Folio 99 of the
Register Book of Titles at the High Court Registry, and the property is
described in the said Certificate of Title.
 Benjamin Liburd’s Certificate of Title with plan attached shows a dry
stone wall around the perimeter of the plot purchased by Benjamin
 The said property was transferred in 1986 to Christianna M. Liburd, the
wife of Benjamin Liburd upon his death, and the mother of the Claimant,
who subsequently partitioned the land and transferred 0.4452 acre of
land to the Claimant. That land, as stated before is recorded at Book 27
Folio 8 of the Register Book of Tiles at the High Court Registry.
 In 1988, the Defendant’s father Anthony Gumbs purchased land
adjoining the south‐western boundary of the Claimant’s land from
Nathaniel Williams. That land is registered in Book 26 Folio 31 of the
Register Book of Titles at the High Court Registry.
 The Defendant came into possession of the said land through his father’s
Estate upon his death and the said portion of land situate at Morning
Star Estate is registered in Book 43 Folio 177.
 The Certificate of Tile of the Defendant describes the manner in which
the land is bounded and shows the strip of land measuring 9.96 feet on
the south‐western boundary.
 Neither the Certificate of Title and plan of Leonora Jean Jacques or Leon
Gumbs show the presence of a dry stone wall which was clearly visible
on the Certificates of title of Benjamin Liburd, and Christianna Melvina
 There is clear and unchallenged evidence that the stone wall was
already built when Nathaniel Williams bought the land in 1985 and sold
it to Anthony Gumbs in 1988.
 There is also clear and uncontroverted evidence before the Court that Ms.
Jean Jacques constructed her house and fenced her property on the said
land in 2005, and that the Defendant had not as yet constructed his home
on his property.
 The Claimant called the witness Simeon Hill, in support of her Claim,
the licensed land surveyor who provided the Court with elucidating
evidence and who the Court considers a reliable witness. The Surveyor
presented a report of his findings (Exhibit S.H.1). His findings were
itemised in paragraph 10 (1‐6) of the said report. At paragraph 5 and 6 of
the report, Mr. Hill states that the “Survey plan recorded on the title of
Anthony Gumbs (Book 26 Folio 31) and presently held by Leon Gumbs
indicates that a common boundary existed, hence no overlapping or
gaps between the common boundary of Leonora Jean Jacques and Leon
Subsequent and adjacent surveys conducted for Dorothy Liburd‐ Caines
daughter of Christianna Melvina Liburd indicates that the stone wall
forms the common boundary between Leonora Jean Jacques and Leon
Gumbs. (My Emphasis)
 In his oral evidence, Mr. Hill refers to (Exhbit SHI) MAP I pg. 22 of his
report. He states;
“This map is accurate, the map was prepared by me and reflects the
owners at the time it was done. I separated the two Bakers property. In
looking at Leon Gumbs’ title and Anthony Gumbs’ title, there is only one
plot belonging to Doreen Baker in front of his plot; the access to the plot
is through the public road.”
“In reference to Doreen Baker’s Certificate of Tile, I see that her title was
transferred from Miriam Liburd. The land held by Nathaniel Williams
was transferred to Anthony Gumbs and then to Leon Gumbs.
Ms. Hill then refers to paragraph 10 (2) of the surveyor’s report and
states that the survey plans referred to in the said paragraph 10 (2) and
labelled A and C on Map I.
He adds that “Based on this plan unless some arrangement was made
for access to be part of Leon Gumbs’ land, it should not have been shown
as such, and should not have been part of the title.”
“The access on Mr. Gumb’s plan does not reflect the access on Doreen
Baker’s land. Her access is on the south west whereas Mr. Gumb’s access
on his plan is shown to the north west; on Nathaniel Williams plan, the
access is shown on the north east, but does not go through Kerry Baker’s
property; the strip of land that provides access for Mr. Leon Gumbs and
Kerry Baker is not owned by Leon Gumbs or Kerry Baker.
 Under cross‐examination of Mr. Hill byCounsel for the Defendant Ms.
Kurlyn Merchant, he stated as follows;
“ Based on Leeon Gumbs plan, the strip of land belongs to him and based
on Leonora Jean Jacques’ plan, the strip of land belongs to the former
Anthony Gumbs and now Leon Gumbs.”
“Also based on the two plans of the Claimant and the Defendant, the
strip of land belongs to Leon Gumbs, and based on the tile of Leon
Gumbs and Leonora Jean Jacques there is no mention of foot path or
access road. (My Emphasis) the stone wall is part of the common
This coincides with Ms. Leonora Jean Jacques’ boundary as the correct
boundary. The section of the wall outside the fence would be Mr.
Gumb’s property. (My Emphasis).
I made a site visit, the section outside of Leonora Jean Jacques wall is
accessed through the land of Leon Gumbs. There is no public access to
that portion of the wall.”
 Mr. Hill further states under cross‐examination, that in relation to the
land of Clive Beverly Baker recorded at Register Book 44 Folio 95 in
March 2006, it was bounded by lands of Doreen Baker to the north west,
by lands of Nathaniel Williams to the south east, on the north east by
lands of heirs of Benjamin Liburd, and on the south west by lands of
Ferdie Williams. He says that “there is reference to a chain link fence, but
there is no reference to a stone wall.”
His observations according to his oral evidence, were that the dry stone
wall was on the opposite boundary on land owned by Doreen Baker and
previously owned by Mary Williams and Nathaniel Williams.
He states “There was some portion of the wall surrounding the property
that was removed and the remainder was intact. The fence constructed
on the wall could not have affected the wall. The fence did not run the
full extent of Ms. Jean Jacques’ property.”
 Under re‐exmaination by Counsel for the Claimant Ms. K. Isaacs, Mr. Hill
stated categorically “ I did a whole assessment of the area. There is a
piece of land owned by Leon Gumbs that is not part of the original title
done in 1954 and now owned by Kerry Baker. That strip of land should
not have been included unless it was bought or agreed upon.” One
cannot rely on a plan of one Certificate of Tile but all adjacent titles to
land. Therefore if one looks at the plan of Leon Gumbs, it would not be
fair to say the strip of land belongs to him. (My Emphasis)
 The Defendant Leon Gumbs in his oral evidence stated that there is a
narrow strip of land adjacent to his land to the back, and this is a private
road which his father Anthony Gumbs had obtained from Nathaniel
Williams. He further stated that he had cleared the road in 2007 but had
not interfered with the stone wall or damaged Ms. Jean Jacques’s fence
and wall. He had only cleared three hundred feet (300) to allow cement
trucks and other vehicles to pass through to start building his house.
Ms. Leonora Jean Jacques had never notified him of any repairs to the
stone wall, and it was the Hurricane in 2010 and the ghaut that runs
through her land that tore down her fence. Mr. Gumbs also stated that he
had put up a gate to prevent the Claimant from coming on to this
He states “The gate is still there. When I leave the gate closed, she can
come in on the side close to Doreen Baker’s land, and when the gate is
open, she just walks out into my private road. She comes out of her gate,
and comes to my gate and road.”
Mr. Gumbs also referred the Court to photos he had taken of the
Claimant allegedly on his private road (Exhibit L.G.4 collectively). He
reiterated that in 2010, there was a Hurricane and the water tore down
the Claimant’s fence and wall. She had reconstructed the wall although
there was an Injunction in place that neither party was to go on the wall.
He also emphasised that he did not touch the stone wall or gave
instructions to anyone to touch the wall. The last time he was Ms. Jean
Jacques on the wall was Thursday 15th May 2014.
 Under cross‐examination by Ms. Isaacs the Defendant was adamant that
the stone wall was not on the Claimant’s property and was part of the
9.96 foot road which was part of his land. He stated further that the
access path is connected to his land and not to Mr. Kerry Baker’s land.
The stone wall was on his easement road.
 In re‐examination by Counsel Ms. Merchant, the Defendant stated “No
one in the area has issues with the gate I erected. The gentleman that
owns the adjoining land, his sister came from Tortola B.V.I and she and
her brother said it is o.k. for me to maintain that gate there, I am the only
person using that road.”
 Having listened carefully to the evidence and the evidence of Simeon
Hill the Surveyor in particular and visited the said locus at Morning Star
Estate and having examined the Certificates of Tile of Clive Baker,
Nathaniel Williams, Anthony Gumbs, and the Defendant Leon Gumbs.
I am of the considered opinion that the strip of land of 9.96 feet in width
belongs to the Defendant Leon Gumbs, and that said strip of land
provides access to his land and property which is at some distance away
from the public road.
I have perused all of the Certificates of Title tendered in evidence to
obtain a holistic picture of all of the boundaries of the landowners in the
area, in particular Mr. Clive Baker, Mr. Leon Gumbs, Mr. Benjamin
Liburd and Mrs. Christianna Liburd.
Mr. Clive Baker’s Certificate of Title issued on the 31st March 2006, shows
a 10 foot access road, and Mr. Leon Gumbs whose Certificate of Title was
issued on the 20th May 2005 also shows a 9.96 foot access. However the
titles of the Claimant’s father and mother Benjamin and Christianna
Liburd (Exhibit LLJ1 and LLJ2) do not show a public access road
adjoining their property. I am therefore satisfied by the evidence that the
9.96ft access road is part of the property of Leon Gumbs, and Ms.
Leonora Jean Jacques has no rights or title to this private access road.
 The Legal basis for a Claim to recover possession lies in Section 6 (3) of
the Limitation Act Cap 5.09 of the Laws of St. Christopher and Nevis.
The Section states “No action shall be brought after the expiration of
twelve years from that date on which the right of action accrued to him
or her if first accrued to some person through whom he or she claims to
 The Claimant in her testimony stated that she enjoyed undisturbed
successive possession of the stone wall from 1954 to 2007. She states
further that the stone wall appears on the Certificate of Title of Benjamin
Liburd, her father whose lands were subdivided by her mother
Christianna Melvina Liburd upon his death. The land she now occupies
was transferred to her by her mother in 1989.
 The Claimant also alleges that the Defendant through his agent Roger
Browne interfered with the said wall and damaged the wall when
clearing the access road with a backhoe in 2007. The Defendant has
denied this allegation and claimed that he was clearing the access road to
his property and never interfered with or touched the wall.
 The Claimant’s evidence is that in her mother’s Certificate of Title, there
is a plan which refers to a dry stone wall and it is the first triangular
piece next to the public road. Her Certificate of Title was issued on the
11th April 1989 and there was a stone wall present although it was not
shown on the plan of the plot of her land.
 The Claimant continues in her evidence to state that the stone wall
formed part of her land to protect the erosion of the land. She walked on
the slip road and not on the Defendant’s land. As a child she knew it as a
footpath, and that the slip road provided access to other landowners in
the area. She goes to the slip road to clear the wall and pick the peas on
the fence, which she has done from 2004‐2005. Her family cleaned the
wall which was on the footpath from 1954.
 The Claimant also states that she moved back to Nevis from England in
2004 and then started to construct her house. The Defendant was not
living next to her when she completed construction. She completely
fenced the property in 2005 but did not have a survey done of her land
when she fenced the property. She knew her bounds and fenced the
 The licensed surveyor Simeon Hill in his oral evidence stated that the
stone wall is part of the common boundary of the land, the section of
the wall outside of Ms. Leonora Jean Jacques’ fence would be Mr.
Gumbs’ property. The section outside of Ms. Jean Jacques’ wall is
accessed through the land of Leon Gumbs; there is no public access to
that portion of the wall.
Mr. Hill stated further that the boundary marks of the Claimant were
located in the centre of the wall. He concluded that the stone wall is the
boundary between the property of Mr. Leon Gumbs and Ms. Leonora
Jean Jacques. “The fence is at the centre, but more on Ms. Jean Jacques’
 I have carefully considered the evidence in particular that of Simeon Hill
the surveyor, on the issue of ownership of the stone wall. Also on a visit
to the locus on the 21st July 2014, I am fortified in my opinion that the
stone wall is a joint shared boundary between the property of the
Claimant and the Defendant and that the legal ownership of the stone
wall is not vested in the Defendant or the Claimant.
 The Claimant has contended that in the event the Court finds that a
portion or even the whole of the stone wall forms part of the Defendant’s
land, she would still have acquired title to the same based on possession
by herself and her predecessors in title for in excess of 54 years.
 In the case of Winston Molyneaux vs. Hugh Smith et al ECSC‐ Court of
Appeal BVIHCVAP2009/0022, J.A Periera (as she then was) laid down
the elements necessary for Legal possession.
1. “A sufficient degree of physical custody and control or factual
2. An intention to exercise such custody and control of one’s own
behalf and for one’s own benefit. The intention required of the
trespasser is not one to own or acquire ownership of the land.
All he need intend is to possess it for the time being in so far as
that was reasonably practicable. It must be an intention on one’s
own name and on one’s own behalf to exclude the world at
large including the owner with the paper title, if he be not
himself the possessor so far as reasonably practicable, and so far
as the processes of the law will allow. Once such an intention on
the part of the trespasser exists, the true owner is said to be
 The Law on Adverse possession was also explained in the House
of Lords case of J.A. Pye (Oxford) Ltd. and another vs Graham
and Another  1AC 419. Lord Browne‐Wilkinson said at
paragraph 41, approving the statement of Shade J. in Powell vs
Mc Farlane and another  38 PE CR 42 that:
“What must be shown as constituting factual possession is that the
alleged possessor has been dealing with the land in question as an
occupying owner might have been expected to deal with it and
that no one else has done.”
 The Halsbury Laws of England Vol. 45 (2) at paragraph 517 –
What possession is sufficient states as follows:
“Any form of possession so long as it is clear and exclusive and
exercised with the intention to possess, is sufficient to support a
claim for trespass against a wrong doer. It is not necessary in
order to maintain trespass, that the Claimant’s possession should
be lawful; See; Graham vs Peat  1East 244.
 The Claimant said in her evidence that in 1954, “We met the wall
there. It is an old wall, it is Estate wall. In 2004, the wall was intact
other than an odd stone falling. I do not know the wall belongs to
the property, it is a boundary wall.”
 Ms. Leonora Jean Jacques stated further that she migrated to
England in 1964 and returned to live in Nevis permanently in
2004. However she returned every two years, but the plot of land
belonging to the Defendants remained unoccupied. The Claimant
did not produce evidence to substantiate this Claim that she
returned to Nevis every 2 years. However the Court is of the
unshakeable view that this action of the Claimant did not show an
act of undisturbed possession of the wall and an intention to
exercise custody and control on her behalf for her benefit.
 Ms. Leonora Jean Jacques continued in her evidence to state that
she fenced her property in 2004, and her fence was placed on top
of the stone wall, in the centre of the wall. This evidence of the
wire fence was corroborated by the Defendant and Mr. Hill the
licensed land surveyor.
 On the Court’s visit to the locus at Morning Star Estate on the 21st
July 2014, the Court obtained a pellucid picture of the Claimant’s
fence which was placed on top of the stone wall. Mr. Hill the
surveyor who was present at the site visit confirmed that the
boundary marks of the Claimant were placed in the centre of the
wall and that the stone wall outside the wire fence formed part of
the property of Leon Gumbs the Defendant.
 After careful and deliberate consideration of all the facts of this
matter and having read the authorities in relation to possession, it
is clear that the genesis of this dispute is the fact that the family of
the Claimant Ms. Leonora Jean Jacques, treated the stone wall as
part of their property whereas the evidence points to the fact that
the stone wall is a shared boundary wall between the property of
the Claimant and the Defendants and their predecessors in title.
 The Court therefore finds that the stone wall is not the exclusive
possession of the Claimant and that none of the acts of the
Claimant can be deemed to amount to possession. I am not of the
view that merely repairing and cleaning a wall which has been
damaged by the force of nature can amount to possession or
dispossession of the owner. Further the Claimant has fenced her
property in the middle of the stone wall and in my opinion this
does not indicate an intention by the Claimant to exclusive
possession of the whole of the stone wall, nor is there any
evidence of a diverse possession of the stone wall by the
 The Court will therefore decline to grant a Declaration to the
Claimant to claim the stone wall as hers or that she acquired title
to the said wall based on possession by herself or her predecessors
 The Defendant has raised the issue of contempt of Court by the
Claimant in relation to the Claimant’s non compliance with the
Court Order of the 21st day of September 2009.
The Order of the Court was set out as follows:
The Parties undertake that:
i. Neither party shall by themselves and/or their servants or
a) Remove or substantially interfere with the
structural integrity of the dry stone wall along the
boundary of their adjoining land.
b) Walk, stand or sit on the said dry stone wall.
ii. The status quo in relation to the presence of the water
pipes on the wall shall remain, until the substantive matter
is determined or until further notice.
 The Claimant admitted in her evidence that she did not obtain
permission of the Court to effect repairs to the stone wall in 2010, and
the Defendant claims that the Claimant is in flagrant breach of the order
of the Court, and should not be heard.
The Law on Contempt
 In Hadkinson vs Hadkinson [1952[ C.A 265 Per Romer L.J he stated at
“It is the plain and unqualified obligation of every person against, or in
respect of whom an order is made by a Court of competent Jurisdiction
to obey it, unless and until that order is discharged. The
uncompromising nature of this obligation is shown by the fact that it
extends even to cases where the person affected by an order believes it to
be irregular or even void.”
“Two consequences flow from the nature of the breach of a Court’s
order, the first being that anyone who disobeys an order of the Court is
in contempt, and may be punished by committal or attachment or
otherwise, while the second consequence is that no application to the
Court by such person will be entertained until he has purged himself of
 However in the said case of Hadkinson vs. Hadkinson, Denning L.J (as
he then was) had a different perspective. He held that it was rare for the
Court to refuse to hear Counsel for an Appellant. Lord Denning stated at
“It is a strong thing for a Court to refuse to hear a party to a cause, and it
is only to be justified by grave considerations of public policy. It is a step
which a Court will only take when the contempt itself impedes the
course of Justice, and there is no other effective means of securing his
compliance. I am of the opinion that the fact that a party to a cause has
disobeyed an order of the Court is not of itself a bar to his being heard,
but if his disobedience is such that so long as it continues, it impedes the
course of Justice in the cause, by making it more difficult for the Court to
ascertain the truth or to enforce the orders which it may make, then the
Court may in its discretion refuse to hear him until the impediment is
removed or good reason is shown why it should not be removed.”
 In Bastion Holdings Limited vs. Jorrill Financial Inc. (Jamaica) 2007
UKPC 60, Lord Scott of Foscote referring to the Judgment of Denning L.J
“These passages from Denning L.J’s Judgment in Hadkinson seem to
their Lordships to fit this case; Mr. Whittaker’s contempt in refusing to
allow himself to be cross‐examined on his affidavit, and on the
documents he had produced pursuant to the Court’s discovery order,
impeded McIntosh J’s endeavour to ascertain the truth about the
Agreement…. In their Lordships Judgment, McIntosh J’s decision to
decline to hear submissions was a decision in her discretion, she was
entitled to take.
 The Learned authors of Arlidge, Eady & Smith on Contempt state that;
“An effective sanction was the practice that one who was in contempt
might not be heard further in the same litigation for his own benefit,
unless and until he purged his contempt. In the words of Lord
Broughman “It is a general rule of all Courts that no party shall be
allowed to take active proceedings if in contempt. This was clearly a
practice primarily coercive in nature rather than punitive. It was by no
means universally applied. There have also been recognised so‐called
exceptions, for example a contemptor might be heard on an application
to purge the contempt, or for the purpose of setting aside the Order,
breach of which had put him in contempt, or of appealing against the
order of committal for lack of Jurisdiction.
 In the case of Vance Lewis vs Joyce Lewis BVIHMT2008/0062 ,
Hariprashad‐Charles J. stated as follows:
“It is beyond dispute that a Court may refuse to hear a party who has
been found to be in contempt, and who has made no effort to purge that
contempt. However the approach the Court should now adopt is found
in the Judgment of Lord Bingham in Arab Monetary Fund vs. Hashim
et al  unreported where he said;
“I think, it is wrong to take as a starting point, the proposition that the
Court will not hear a party in contempt, and then ask if the instant case
falls within an exception to that general rule. It is preferable to ask
whether in the circumstances of an individual case, the interests of
Justice are best served by hearing a party in contempt or by refusing to
do so, always bearing in mind, the paramount importance which the
Court must attach to the prompt and unquestioning observance of Court
 The important question to be asked is whether the interests of Justice are
best served by hearing or refusing to hear the Claimant Ms. Leonora Jean
Jacques, always bearing in mind the importance which the Court must
attach to the prompt and unquestioning observance of its Order.
 I am of the opinion that the interests of Justice will not be served by
debarring Ms. Leonora Jean Jacques from having her Claim heard or
waiting until she has completely purged her contempt.
 Consequently I have permitted Ms. Leonora Jean Jacques to present her
claim to her Court.
 Another issue for determination by the Court is whether Ms. Leonora
Jean Jacque is entitled to be compensated for alleged Trespass to her
property by the Defendant or whether the Defendant is entitled to be
compensated by the Claimant for Trespass to his property.
 The Halsbury Laws of England Vol. 45 (2) paragraph 518 states under
the heading “Who may sue for Trespass” that;
“Trespass is an injury to a possessory right and therefore the proper
Claimant in a claim for Trespass to land is the person who was or is
deemed to have been in possession at the time of the Trespass. The
owner has no right to sue in Trespass if any other person was lawfully in
possession of the land at the time of the Trespass, since a mere right of
property without possession is not sufficient to support the claim; the
type of conduct necessary to evidence possession varies with the type of
land and to maintain a claim against a person who never had any title to
the land. The slightest amount of possession is sufficient; See‐ Wuto Ofer
vs. Danquah [1961[ 3A11ER 596.
 At paragraph 519 of Halsbury’s it states “A person having the right to
the possession of land acquires by entry the lawful possession of it and
may maintain Trespass against any person, who being in possession at
the time of entry, wrongfully continues on the land. The slightest acts by
the person having title to the land, or by his predecessor in title
indicating his intention to take possession may be sufficient to enable
him to bring an action for Trespass against a Defendant.
See: Ocean Estates Ltd. vs. Pinder  3A11 E.R 596; Simpson vs.
Weber [1925[ 41TLR 302.
 Trespass is actionable at the suit of the person in possession of land; See
Patel vs. W.H Smith Ltd.  2 A11ER 569.
 Learned Counsel for the Defendant Ms. Merchant in her written
submissions posited that the Defendant has presented clear proof of his
claim for Trespass against the Claimant including photos labelled
collectively as (Exhibit LG4) showing the Claimant allegedly entering
and leaving the strip of access road on his property.
The Defendant also tendered photos allegedly taken on the 15th May
2014 again showing the Claimant on the property of the Defendant.
 Counsel for the Defendant then referred to the case of Clarabell
Investments Limited et al vs. Antigua Isle Co. Ltd. et al,
ANUHCV2006/00326. In that case the learned Trial Judge Blenman J (as
she then was) stated that “It is clear that the owner of land, even though
not in physical possession of land can have an action against a
trespasser…. Trespass on a person’s land gives rise to a continuing action
for as long as the Trespass lasts.”
 The Claimant in her pleadings claims that the Defendant, his servant or
agents has trespassed on her stone wall and has wrongfully installed
water pipes unto the said stone wall. It is on this basis that the Claimant
makes the claim for continued Trespass against the Defendant.
 In the case at Bar, and on the Court’s visit to the locus on the 21st July
2014, the Defendant illustrated to the Court that he had laid pipes under
the strip access road on his property, to bring potable water to his house
that he had constructed on his plot of land. No evidence has been
adduced by the Claimant and the Court found no evidence of Trespass
to the Claimant’s fenced property by the Defendant, and therefore will
dismiss the Claimant’s claim for General and Special Damages for
Trespass against the Defendant.
 Moreover the Court finds that it is the Claimant who has trespassed and
continues to trespass on the Defendant’s property by entering on the
Defendant’s land from September 2007, and interfering with the
Defendant’s use of his land, and with his water pipes without license or
permission. The Claimant continues to pick the peas and over hanging
fruit on the Defendant’s property.
The Defendant has also filed a Counterclaim for Trespass contending
unlawful entry on his property by the Claimant.
 In the Clarabell case, the learned Judge Blenman J as she then was,
explained that “Trespass on a person’s land gives rise to a continuing
action (from Day to Day) for as long as the Trespass lasts.”
 Having made a finding of Trespass against the Claimant, the Court must
now determine the remedies to which the Defendant is entitled.
In Stone on‐ Trent Council vs. W&J Wass Ltd.  1WLR 1406, the
Court stated that;
“A Claimant in Trespass is entitled to recover damages, even though he
has sustained no actual loss. There is no need for the Claimant to prove
any actual damage in order to be able to sustain an action for Trespass.”
Also in the case of Yelloly vs. Morley  27TLR 20, the Court held
that Trespass to land consists of any unjustifiable intrusion by one
person upon land in the possession of another. It is Trespass to place
anything on or in land in the possession of another.
 In applying the principles of Trespass to the case at Bar, I am of the view
that Ms. Leonora Jean Jacques must pay Damages to the Defendant Leon
Gumbs for Trespass to his property and that her continued unlawful
presence on the Defendant’s land constitutes a continuing trespass and
must cease immediately.
 It is the Law that a person whose property has been trespassed upon is
entitled to be compensated by way of Damages. The two bases for
calculating a Monetary remedy or [..] profits are Compensatory and
Restitutionary. The purpose of the award of Damages is to place the
Claimant in the position he would have been in had Trespass not been
committed. Compensation refers to the Cost of any work reasonably
required in order to restore the Claimant’s use of the land. It is the cost of
reinstating the land.
See: A.G vs Blake  A.C 268.
 In calculating Damages, consideration is given to the benefit deemed to
have been acquired by the Trespasser by reason of the unauthorised use
of the land. As already stated, the law does not require the Claimant to
prove nay loss, neither is it relevant that the Trespasser obtained any
actual benefit from his wrongful use of the land.
 In Asot S. Michael vs. Astra Holdings Ltd. Civil Appeal No. 17 of 2004,
Antigua & Barbuda Rawlins J.A (Ag) stated that;
“A Claimant must set out in his pleadings the value by which his land
was diminished and the expense of moving any debris left by the
trespass, if any. On the other hand he may set out the costs of correcting
the damage and restoring the land to its original condition. Where there
is continuing Trespass damages are usually measured by the worth of
the use of the land. This would normally be the rental value of the land.”
 The Court is of the opinion that Mr. Gumbs is entitled to Damages which
would represent the cost to place the property it was in before the
The Defendant in his pleadings has not set out the value by which his
land has been diminished by the act of Trespass by the Claimant. The
written submissions of Counsel for the Defendant has also given no
assistance to the Court or any helpful authorities to allow the Court to
grant Damages for Trespass. Consequently I will grant Court assessed
Damages of $8000.00 to the Defendant for the Trespass committed on his
 There is no evidence of the rental value of the stone wall that the
Defendant claims as part of his private land. The Court has made a
finding that the Trespass commenced in 2007 and continues even up to
the date of the Trial of this matter. Therefore the Damages that the Court
awards to the Defendant should indicate a sum that reflects the fact that
there was a Trespass on the stone wall and access road.
 In light of all the evidence and circumstances of this case and taking in
account that Counsel provided no authorities to assist the Court in this
regard to Damages, the Court is of the view that the sum of $5000.00 is
appropriate to award the Defendant as Damages for Trespass to the
stone wall which forms part of his property.
 I now address the issue whether the Court should compel Ms. Jean
Jacques, her servants or agents from trespassing on, entering on or
interfering with the stone wall, and the access road, the subject matter of
 During the course of this Trial, the Court has observed the conduct, bad
blood and tension filled relationship between the Claimant and the
Defendant. The Claimant appears to be provocative and cantankerous,
and the Court is satisfied that the Claimant will continue her unlawful
acts in the future if not restrained although an interlocutory Injunction
had already been granted. I am satisfied that unless the Court grants the
Injunction prayed for by the Defendant, Ms. Leonora Jean Jacques the
Claimant would take no steps to remedy her unlawful acts, and that the
making of Declarations and an Award of Damages will not suffice to
curb the Trespass by the Claimant.
 The Court therefore grants an Injunction restraining the Claimant Ms.
Leonora Jean Jacques whether by herself, her servants or agents from
further trespassing on, entering on or interfering with the stone wall, and
from entering on or trespassing on the access road, the private property
of the Defendant.
 In view of the foregoing and the totality of evidence, It is hereby ordered
a) That the Claimant’s claim for recovery of possession of a stone
wall forming the south‐eastern boundary of the Claimant’s
0.4452 acre of land situated at Morning Star Estate and
separating the Claimant’s land from the Defendants 0.6814 acre
of land is dismissed, and the Court further declares the said
stone wall to be a common boundary shared by the Claimant
and the Defendant. The Court also declares that the stone wall
outside of the perimeter of the Claimant’s fenced property is
part of the private property of the Defendant.
b) That the Claimant’s claim for an Injunction restraining the
Defendant, whether by himself, his servant and/or agents from
further trespassing on, entering on, or interfering with the stone
wall of the Claimant is disallowed and dismissed.
c) That the Claimant do pay the sum of $13,000.00 to the
Defendant as Damages for trespass to his property.
d) That the Defendant is granted an Injunction restraining the
Claimant whether by herself, her servants or agents from
interfering with the Defendants use and enjoyment of his lands
described in Certificate of Title in his favour dated 20th May 2005
and recorded in Register Book 43 Folio 177 on the Register of
Titles including the stone wall and Access road that forms part
of the said property of the Defendant.
e) That the Claimant’s concrete wire fence does not encroach on
the Defendant’s land and does not constitute a continuing
trespass, the said concrete and wire fence being in the centre of
the stone wall which is a shared boundary for the lands of the
Claimant and the Defendant.
f) That prescribed costs are to be paid to the Defendant in
accordance with Part 65 of the CPR 2000, unless otherwise
 The Court gratefully acknowledges the assistance of both Learned
High Court Judge (ag)