Cutler v Hodge

• Jurisdiction: Anguilla
• Judge: Bishop, J.A.
• Judgment Date: 24 April 1989
• Neutral Citation: AI 1989 CA 2
• Docket Number: Civil Appeal Nos. 7 & 8 of 1985
• Date: 24 April 1989
• Court: Court of Appeal (Anguilla)

Court of Appeal

Robotham, C.J., Bishop, J.A., Moe, J.A.

Civil Appeal Nos. 7 & 8 of 1985

Cutler

and

Hodge

Hodge

and

Cutler

F. Kelsick for appellant/respondent Cutler,

M. Walwyn for respondent/appellant Hodge.

Tort - Damages — Wrongful entry on premises of company and removal of equipment and other belongings — Heads under which damages to be allowed — Quantum.

Bishop, J.A.

1 A Writ of Summons dated 31st January, 1983 was filed on behalf of Roy G. Cutler, liquidator of Architects Design Group (Anguilla) Limited, in voluntary liquidation, and addressed to James Hodge of Little Harbour. It sought: (1) declarations that (a) Architects Design Group (Anguilla) Limited, also called herein the Company, is owner in possession of all that property situate at George Hill and registered in the Land Registry in South Central section, Block 36812 B Parcel 52 and (b) James Hodge is not entitled to enter upon the said property or to cause others to do so. (2) Damages for wrongful entry on the said premises by James Hodge, his servants or agents, for wrongfully expelling the Company from the said premises and removing the equipment and belongings of the Company, thereby causing damage to the said equipment and belongings on the 24th and 25th days of January 1983. It was stated that the company suffered serious loss “which loss is continuing”. (3) An injunction to restrain James Hodge (also called the defendant) his servants or agents from entering upon or remaining upon the said land. (4) Further or other relief. (5) Costs.

2 Paragraphs of the Statement of Claim dated 22nd March, 1983, which were relevant to this appeal, asserted that on the 29th October, 1981 the Company purchased from James Hodge and his wife Laura, the property at George Hill for $140,000.00. The company paid $10,000.00 on account of the agreed purchase price and they issued an appropriate receipt. Among other things, the receipt set out the conditions of sale, one of which was that on the 29th October, 1981 and 1st December, 1981 respectively, sums of $10,000.00 must be paid; then on the 1st March, 1982 and every three months thereafter, sums of $15,000.00 were to be paid until the full purchase price was paid. Paragraphs 5, 6 and 7 read:–

• “5. On the 30th October 1981 the Company entered into possession of the said property as owner and was in possession of the same from the said 30th October 1981 to the 24th January 1983.

• 6. Between the 30th October 1981 and the 24th January 1983 the Company paid….. a further $40,000.00 on account of the agreed purchase price of the said property …….

• 7. At the time of the purchase of the said property by the Company, the…. property was mortgaged to the Caribbean Commercial Bank Limited….. to secure loan monies advanced….. to the Defendant and Laura Hodge….. On the 30th October 1981 the amount of $24,000.00 was due to the mortgage debt and interest was accruing thereon…..”

3 Two following paragraphs set out the facts that amounted to the alleged trespass and removal of office equipment and furniture on the 24th and 25th days of January 1983. It was asserted that on the former date, James Hodge and others who acted on his directions, threw out of the building on the land at George Hill “a small computer, a photo copier, calculating machines, typewriters and sundry other items of office equipment and various items of office furniture…” On the latter date, they threw out of the building “the greater part of the remaining office equipment and office furniture and office supplies which the company had installed and placed in and upon the said property……”

4 Then, James Hodge locked the building, using different locks and thereby denying the Company access to the inside of the building. It is clear that the pleading was not totally specific about what was thrown out on the first day and ways not at all specific about the actual items thrown out thrown out on the first day. The statements were vague in some respects. What, for example, were the “various items” allegedly thrown out on the 24th? What was “the remaining office equipment” thrown out on the 25th? No particulars were given, or sought.

5 The Company alleged further that the unlawful entry pleaded, the unlawful acts committed, and the locking out of the Company from the building disrupted its business, caused and continued to cause serious financial loss to the Company; and that unless compelled by an injunction, to desist from so doing, the defendant intended to continue the acts of trespass and barring the Company from entering. Damages sought were particularised in the Statement of Claim as follows:–

• “(a) damage and loss to the Company'soffice equipment and office furniture and office supplies: $32,509.00;

• (b) loss occasioned by or flowing from interruption and disruption of the Company'sbusiness $35,500.00;

• (c) cost of temporarily relocating the Company'sbusiness at other premises–

  • (i) rental of temporary premises from the month of January 1983 at monthly rental of $724.00;

  • (ii) cost of transporting office equipment to temporary premises and establishing office there $1,140.00;

• (d) cost of storing, part of the Company'soffice equipment and office furniture unlawfully removed from the said property: $430.00 per month.”

6 Throughout my judgment all sums of money have been stated in the currency of the United States of America unless otherwise indicated.

7 I wish to observe at this point that neither in the Writ of Summons nor in the Statement of Claim was it specifically and positively alleged by the Company that James Hodge unlawfully detained stated items of office equipment or furniture belonging to the Company, or that their return to the Company was requested and/or refused. Nor was there an allegation that James Hodge converted specified items of office equipment or furniture or supplies to his own use.

8 James Hodge defended the claims and made a counterclaim in which he asked for a declaration that he is the owner in possession, with his wife, of the property in dispute, and for damages and/or mesne profits for use of the said property that the Company occupied from the 30th October, 1981 to the 24th January, 1983.

9 In the decision delivered on the 7th June, 1985, the learned Judge found that (1) there was a contract between the Company and James Hodge and no further terms remained to be agreed (2) the contract was not repudiated by James Hodge and (3) James Hodge let the Company into possession. The Judge referred to the facts that the instalment due on 1st September, 1982 was not paid and that James Hodge instructed a solicitor to write a letter to the Managinq Director of the Company demanding payment and threatening legal proceedings if there was default. There was default and some time thereafter, James Hodge re-entered and took possession of the premises. The learned judge stated:–

“It is very unfortunate that the defendant before doing so, did not seek legal advice. Had he done so, it is very unlikely he would have been placed in the position of a defendant. Instead, he took the law into his hands and did what I consider amounted to a trespass. The court, while sympathetic with his position in that he seemed to have suffered mentally and financially cannot encourage persons to take the law into their hands. He entered the building ……….. threatened certain of the occupants and had items of furniture thrown out. Consequently, he is bound to suffer for the unlawful action he took.”

10 The judge accepted the evidence of James Hodge and found that items left inside the building on the 24th and 25th days of January, 1983 were left there by the Company and were still there at the date of the trial. As a result she did not “allow the claim for these items”.

11 On the other aspects of the claim for damages, the learned judge stated:–

“I also allow the undermentioned sums: Rental of temporary premises from 25 ^th January to 2nd February 1983 (the date of the writ) as there is no claim in the particulars of loss for continuing loss, at the rate of U.S. $724.00 a month = $186.83.

Cost of storing Company'soffice equipment from 25th January 1983 to 2 ^nd February 1983 (again there is no claim in the particulars of loss for continuing loss) at the rate of U.S. $430.00 a month = $110.96.

Transportation of office equipment to temporary premises = $1,034.00.”

12 The Company was declared owner in possession of the property at George Hill and for re-establishing its office, the learned Judge made the following awards:–

“Telephone and telex reconnection charge	40.00
Transport				800.00
Casual labour				100.00
Electricity reconnection charge		15.00
Computer reconnection charge			150.00
Reparations to temporary office		200.00”

13 The learned judge also found from the evidence that the Company owed James Hodge $90,000.00 on the purchase price of the property and that James Hodge owed the Caribbean Commercial Bank $24,000.00 plus interest on the mortgage debt; and in the light of these facts she ordered (1) the plaintiff Company to pay the Caribbean Commercial Bank interest on the sum of $15,000.00 from the 1st September, 1982 to date of payment (“) the sum of $90,000.00 to be paid into Court and payments made as follows:–

• (a) $24,000.00 with whatever interest is due (excluding the interest the plaintiff is ordered to pay) to be paid to the Caribbean Commercial Bank;

• (b) the plaintiff to be paid the sum of $6,744.79 as special damages;

• (c) the plaintiff to be paid the sum of $1,000.00 general damages;

• (d) balance, if any, to be paid to the defendant.

  The trial judge made “no order as to costs”.

14 It should be recalled here that in this case the trial Judge was asked to make certain declarations and to award damages against James Hodge for unlawful trespass. The...