Attorney General of Anguilla v Gumbs

• Jurisdiction: Anguilla
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Judge: Edwards, J.
• Judgment Date: 26 August 2002
• Neutral Citation: AI 2002 HC 11
• Docket Number: 0046 of 2002
• Date: 26 August 2002

High Court

Edwards, J.

0046 of 2002

Attorney General of Anguilla

and

Gumbs

Appearances:

Mr. I. Green for applicant

Ms. B. Lake Q.C. and Mr. T. Astaphan respondent

Injunction - Application for continuation of an injunction — Defendant postulated that he had given no permission for a road to cross his property and blocked the road — Appellant alleged that although the road was not a public road under s.3 of the Road Act there was a right of way — Circumstances not appropriate to consider re-granting an injunction — Court implored the defendant to allow the status quo to remain as if the injunction was in existence until the court determined the matter.

1 EDWARDS J: The Limestone Bay Road is that stretch of Road, which begins approximately 75ft from the East of the Old Hospital at Roaches Hill and continues to Limestone Bay and Flat Caps. This Road runs along and traverses several properties, which are privately owned, including the property of the defendant/respondent in the Little Bay Area, which is registered as Registration Section North Block 58715 B Parcel 2 in the Land Register. This Road is the only means of access for persons who wish to go to the properties situated along the Limestone Bay Road or who wish to go to Limestone Bay and Flat Cap.

2 The claimant/applicant contends that the portion of the Limestone Bay Road which traverses the said property of the defendant/respondent as a result of continuous uninterrupted use by the public for a substantial period of time, is a public right of way which along with the rest of the Limestone Bay Road has been taken, upgraded and maintained by the Government of Anguilla since about 1979/1980; it is therefore a ‘Road’ as defined by section 1 of The Roads Act R.S.A Cap R65 which provides ‘road’ means any public road mentioned in the Schedule and includes any public Rights or way at present existing in Anguilla; or which may hereafter come into existence and also includes the roadway, Water table, any bridges and the land on each side of the road including road drainage works and water table up to the boundary of any road.”

3 The Limestone Bay Road is not mentioned in the Schedule to The Roads Act and has not been declared by the Governor or any former Commissioner of Anguilla as a new Road under Section 3 of The Roads Act Cap R65 which provides:–

“1. The Governor may by proclamation published in the Gazette declare that any road, or part thereof not mentioned in Schedule shall be constructed and maintained at the public expense out of money provided by the Government and there upon all the provisions of this Act shall apply to such road or part thereof in the manner as if it had been mentioned in the Schedule.”

4 Section 6 of The Roads Act Requires the Chief Engineer to have control and management of the roads in Anguilla.

5 Section 4 of the Roads Act states –

“All Roads and all land taken for their construction are the property of the Government of Anguilla. Whenever any private road is, with the written consent of the owner repaired at public expense, such road shall thereafter be deemed taken and used as a public road for all purposes whatever as if the same had been laid out under the provisions of this Act, except in any case where a special arrangement has been made to the contrary.”

6 The Roads Act Cap R.65, was enacted on the 27th September 1973 as Anguilla Roads Ordinance 1973 No. 5 of 1973 “to provide proper procedure for improving an constructing roads in Anguilla and matters incidental thereto”. It should also be noted that the existence of the alleged public Right of way on the defendant's land has never been noted on the certificate of title for parcel 2, or Registered in the Land Register.

7 The claimant/applicant found it necessary to make an application without notice to the court on the 29th July 2002 for injunctive relief because the defendant, postulating that he had given no permission for the road to cross his property, had on the 26th July 2002 blocked the Limestone Bay road by digging a trench across the road in an area where the road traverses his property at Little Bay; thereby making the Road impassable; and had created a crisis for vehicular traffickers who wished to go to Limestone Bay.

8 This Application was supported by the affidavits of Chanelle Petty-Barrett, David Robson, Vincent Proctor and Applewaite Lake all sworn to and filed on the 29th July 2002. The affidavits disclosed among other things, evidence that this was the fourth time that the defendant/respondent had blocked the Road. He had done this on the 23rd February 2002, 25th February2002 and 27th February2002, and on each occasion the relevant Government authorities had to clear and repair the Road.

9 The Resident Judge was then sitting in Montserrat and on the 30th July 2002 the court made the following order:–

• “1. Order for Injunction directing the defendant, whether himself, his agents, servants or otherwise to remove with immediate effect any encroachments on that part of the right of way passing through the property at Registration Section Block 58715 B Parcel 2.

• 2. Order for Injunction restraining the defendant whether himself his agents, servants or otherwise from interfering with or obstructing the free passage of any person traversing the Right of way passing through the property at Registration Section Block 58715 B Parcel 2 until the conclusion of the hearing of the substantive matter.

• 3. That the defendant bears the costs of and incidental to this matter including costs incurred by and on behalf of the applicant.

• 4. And the court further orders that this interim injunction shall remain in force for twenty-eight (28) days.

• 5. That the date and time on which the court will further consider the Application will be on the 26th day of August 2002 at 9:00 am.”

10 The claimant filed a fixed date claim with 7 supporting affidavits on the 2nd August 2002, claiming against the defendant the following:–

• 1. A declaration that a right of way exists over the property of the defendant at Registration Section North Block 5871 B Parcel 2.

• 2. A declaration that the right of way existing over the property of the defendant at Registration Section North Block 5871 B Parcel 2 is a road within the meaning of Road Act R.S.A., R65.

• 3. An order for Injunction Restraining the defendant whether himself his agents, servants or otherwise from interfering with or obstructing the free passage of any person traversing the Right of way passing through the property at Registration Section Block 58158 Parcel 2.

• 4. Such further or other directions as the Court may deem just and expedient.

• 5. Costs.”

11 On the date set for further consideration of the matter, there were 2 Applications for hearing. One was the application of claimant filed on the 19th August 2002 with supporting affidavit of Stanley Reid sworn to and filed on the same date, for the continuation of the injunction until the trial of the action. The other was the Application of defendant with his two supporting affidavits, one sworn to and filed on the 16th August 2002 and the other Supplemental affidavit sworn to and filed the 19th August 2002. The affidavit of Richard Fahie also sworn to and filed on the 16th August 2002 supported the defendant's application.

12 The defendant had also filed another affidavit on the 16th August 2003 in response the affidavits filed in support of the claim; and the claimant had filed the additional affidavits of Arthur Richardson sworn to and filed on the 20th August 2002 and Everette Brooks sworn to and filed on the 23rd August 2002 in support of the claim.

13 The court part heard the 2 applications without extending the injunction because counsel Mr. Green was unprepared regarding the issue of NON DISCLOSURE and the court made an order giving specific directions regarding the filing of supplemental written submissions and authorities and additional affidavits by both parties, which were done. The affidavits filed included the fourth affidavit of the defendant John. A. Gumbs sworn to and filed on the 30th August 2002, and the claimant's three witnesses Applewaite Lake (second affidavit) and Cleveland Richards both sworn to and filed on the 11th September 2002, and a second affidavit of Keith Everette Brook sworn to and filed on the 16th September 2002.

14 It is necessary to set out the grounds of the defendant's application, which were: –

• “1. The interim order was obtained in breach of Part 17.2(5) of the CPR 2000.

• 2. The interim order was obtained in breach of Part 17.3(4) (a) and (b) of The CPR 2000.

• 3. The interim order was obtained in breach of Part 17.4(4) (a) and (b) of The CPR 2000.

• 4. The grant of the injunction was not predicated upon any serious claim to or evidence laid before the court to prove that a public right of way lawfully existed over the applicant/defendant's land and if so how the said public right of way came into being.

• 5. The interim order was obtained by the with holding of material facts which ought to have been disclosed by the claimant so as to be weighed by the court in the exercise of it's discretion in that the respondent/claimant failed to disclose:

  • (a) The factual circumstances of the adjudication process relating to the said parcel 2 and its effect upon the respondent/claimant's claim to the purported right of way.

  • (b) Correspondence passing between applicant/defendant and his Representatives and the Government of Anguilla including what is now The Ministry of Communication Infrastructure and Utilities whereby the applicant! defendant objected to the use of his land as a public road and which said correspondence negatives any intention on the part of the applicant/ defendant to dedicate the said land, dedication being an essential ingredient for the creation of a public Right of way.

  • (c) The applicant had asserted...