Hodge v Hodge

• Jurisdiction: Anguilla
• Court: Court of Appeal (Anguilla)
• Judge: Moe, J. A.
• Judgment Date: 06 July 1987
• Neutral Citation: AI 1987 CA 1
• Docket Number: Civil Appeal No. 1 of 1983
• Date: 06 July 1987

Court of Appeal

Robotham, C.J., Moe, J., and Williams, J.A. (Acting)

Civil Appeal No. 1 of 1983

Hodge

and

Hodge

Mr. F. Kelsick for the appellant

Mr. I.D. Mitchell for the respondent

Real property - Boundary

Moe, J. A.

1 This appeal concerns the boundary line which correctly demarcates the northern boundary of a parcel of land which the appellant inherited from his mother Augusta Hodge, and the southern boundary of a parcel of land inherited by the respondent.

2 The two parcels of land concerned are parts of an area at Mt. Fortune divided by one Brandy Hodge between four sons Abraham, William, James and Cobby. The southern portion of Abraham'sparcel bounded the northern portion of William'sparcel. William gave his parcel to the appellant'smother Augusta Hodge who in turn left it by will to the appellant. The gift of the land by William to Augusta is evidenced by a document in the following terms:

“August 15, 1946

“I William Hodge son of Brandy Hodge give to my sister-in-law Augusta Hodge this piece of land situate in Mt. Fortune for cleaning and burying my father Brandy Hodge while I was in the States. The land is bound east to Tommy Webster, west to the public road aril the road leading to Junks Hole south to the said Augusta Hodge.”

3 Augusta put up a wall running along the southern edge of the Junk Hole Road or the track to Junk'sHole. In 1958 Irene moved that wall and placed it 40 feet to the south. Irene was sent and received a letter dated 19 ^th April 1958 from Augusta who informed-her that she was given the land and had put the bound wall. Augusta also asked Irene not to trespass any further.

4 On the area of land between the line along which Augusta had built the wall and the line where Irene had placed the wall in 1958, Abraham had built and lived in a trash house. Annabelle Vanterpool was living in that trash house when Abraham died. After his death, she continue living in it until she left in 1943.

5 The issue before the learned trial Judge was whether the northern boundary of William'sland (which had passed to the appellant) or put another way whether the common boundary between William'sland (which passed to the appellant) and Abraham'sland is where Augusta had put a wall along the track to Junk'sHole or where Irene had placed the wall in 195. In a written judgment the learned trial Judge posed the question to be determined as — whether Augusta owned the spot on which Abraham'shouse was built. The learned Judge found that that area is the property of Abraham Hodge. The import of that finding being that the common boundary between the two parcels of land concerned is where Irene placed the wall in 1958.

6 The grounds of complaint were argued under one main head namely, that the decision is unreasonable having regard to all the evidence in the case including the evidence given in proceedings before the Adjudication Officer and particularly the judgment entered in the High Court of Justice for the Anguilla Circuit by the appellant on the 22nd April 1967 for an order for possession of the said land which is the subject of the appeal.

7 In seeking to determine the issue of the true position of the boundary between Abraham'sland and that of the appellant, the learned trial Judge referred to the document set out above and stated:–

“The document signed by William Hodge did not clearly specify the extent of the land that was given to Augusta Hodge. It specifies all boundaries except the northern boundary and it is this boundary which is of importance in this case, as the evidence is that the appellant'snorthern boundary is Abraham'ssouthern boundary.”

8 The learned judge looking at the issue from the point of view as to whether Augusta owned the area of land on which Abraham had built a trash house also said:- “In the absence of information relative to the northern boundary I am unable to find that Augusta Hodge owns a specified area of land on which Abraham'shouse had been built.”

9 The judge went on to find the common boundary between Samuel Hodge and, the respondent to be the boundary indicated by Irene Gumbs. Mr. Kelsick for the appellant submitted that in construing the document set out above by which William made a gift of the land to Augusta, the learned trial judge ought to have imported the words “NORTH to” before the phrase “the road leading to Junk'sHole”. His contention was that consideration of the evidence relating to Junk'sHole Road would clarify the reference in the document to “the road leading to Junk'sHole. Mr. Mitchell'ssubmission was that there was abundant evidence before the learned Judge that the boundary line ran from Abraham'sCave to the low ground or in other words ran along the line where Irene Gumbs the administratrix of the estate of Abraham had placed a wall in 1958. He however accepted that the trial Judge had a large amount of evidence going both ways but submitted that the learned judge was justified on the evidence in coming to the conclusion that the boundary was where Irene Gumbs put the wall in 1958.

10 In reviewing the findings of the learned trial Judge this Court is governed by principles which are well known. Guidance is provided by the opinions delivered in the House of Lords in Watts v Thomas (1947) A.C. 484. Three propositions with which three Law Lords were in agreement are as stated by Lord Thankerton at pp 487-488:

• “1.Where a question of fact has been tried by a Judge without a jury and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses would not be sufficient to explain or justify the trial judge'sconclusion.

• 2. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.”

• The Appellate Court, either because the reasons given by the trial Judge are not satisfactory or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses and the matter will then become at large for the Appellate Court.”

11 It is clear therefore that if a trial Judge dealt with the evidence inappropriately, or drew wrong inferences, a Court of Appeal may make its own assessment of the evidence and come to its own conclusions.

12 Now in this case, there is the document evidencing the gift of land to Augusta specifying boundaries. The first question is whether the northern boundary was omitted. It...