John A. Gumbs Appellant v Attorney General of Anguilla Respondent [ECSC]

• Jurisdiction: Anguilla
• Judge: BARROW, J.A.,Justice of Appeal,Chief Justice [Ag.],Denys Barrow, SC,Brian Alleyne, SC,Ola Mae Edwards,Justice of Appeal [Ag.]
• Judgment Date: 15 October 2007
• Judgment citation (vLex): [2007] ECSC J1015-1
• Docket Number: CIVIL APPEAL NO.9 OF 2005
• Date: 15 October 2007
• Court: Court of Appeal (Anguilla)

[2007] ECSC J1015-1

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Brian Alleyne, SC Chief Justice [Ag.]

The Hon. Mr. Denys Barrow, SC Justice of Appeal

The Hon. Ms. Ola Mae Edwards Justice of Appeal [Ag.]

CIVIL APPEAL NO.9 OF 2005

In the matter of sections 1 and 38 of the Roads Act, R.S.A. c. R65

In the Matter of the public right of way situate at Registration Section North Block 58715B Parcel 2

Between:

John A. Gumbs

Appellant

and

Attorney General of Anguilla

Respondent

Appearances:

Mr. Dane Hamilton QC and Ms. Nadine Fleming Kissob for the Appellant

Mr. Ronald Scipio QC and Ms. Eustella Fontaine for the Respondent

BARROW, J.A.

1 Both sides appealed against different aspects of the judgment of George-Creque J delivered on 17^th June 20051 declaring that a right of way existed over the appellant's land. The appellant appealed against the judge's declarations that the right of way existed and that the way was a public road and also against the order restraining the appellant from blocking the road. The respondent cross-appealed against the finding that the Crown had trespassed by

widening the roadway from 3 feet to 20 feet and was liable to the appellant in damages to be assessed.

Public nuisance

2 The Attorney General issued the Fixed Date Claim Form after the appellant, on three separate occasions, on 23^rd February 2002, 27^th February 2002 and 26^th July 2002, blocked the public's vehicular and pedestrian use of that portion of the Limestone Bay Road which traverses the northern boundary of the appellant's undeveloped land situate at Registration Section North Block 58715B Parcel 2. The Attorney General claimed that the road, consisting of a little over one mile from its commencement at the Old Cottage Hospital to its termination at Limestone Bay, was a public road within the meaning of the Roads Act.2

3 There was no disputing that the respondent brought the proceedings to protect the public's interests. This followed a complaint on 26^th July 2002 to the Ministry of Infrastructure, Communications, Utilities and Housing by a member of the public who had been affected by the appellant's blockage of the said road.3 There was also no disputing the respondent's duty, in an appropriate case, to bring proceedings. In his very helpful written submissions Mr. Ronald Scipio QC, counsel for the respondent, highlighted the principle that proceedings to abate a public nuisance, which is committed by obstructing a public right of way, must be brought by the Attorney General. Counsel referred to the following passage in Halsbury's Laws.

"All civil proceedings brought in respect of public nuisance other than a private action by an individual who, or a public or local authority which, has suffered particular damage or an action brought by a local authority in its own name to protect the inhabitants of its area must be brought with the sanction and in the name of the Attorney General. This rule applies whether it is an individual or a local or other public authority who seeks to proceed."4

4 Such proceedings are brought by the Attorney General on the information or relation of some member of the public and are called 'relator' actions or proceedings. Lord Wilberforce described such proceedings inGouriet v Attorney General [1978] AC 435:5

"A relator action —a type of action which has existed from the earliest times —is one in which the Attorney-General, on the relation of individuals (who may include local authorities or companies) brings an action to assert a public right. It can properly be said to be a fundamental principle of English law that private rights can be asserted by individuals, but that public rights can only be asserted by the Attorney-General as representing the public. In terms of constitutional law, the rights of the public are vested in the Crown, and the Attorney-General enforces them as an officer of the Crown, and just as the Attorney-General has in general no power to interfere with the assertion of private rights, so in general no private person has the right of representing the public in the assertion of public rights. If he tries to do so his action can be struck out."

Finding of fact that the path existed

5 The judge performed a thorough review in her judgment of the evidence that had been adduced in these relator proceedings as to the existence of the road, which "entailed the leading of much memorial evidence, a detailed examination of cadastral survey maps, topographical maps and other drawings, aerial photographs depicting the Land and surrounds over various periods, evidence of two licensed land surveyors as experts, and a site visit."6 The land adjudication process that was conducted pursuant to the now repealed Land Adjudication Ordinance7 after 1st July 1974 for the purpose of bringing all lands in Anguilla under the cadastral survey based Registered Land Ordinance8 provided a significant reference point. After considering the documentary evidence to see whether it showed the existence of the path, at the time of the land adjudication process, the judge concluded that save for one exception the documentary evidence coupled with the evidence of the experts as well as the evidence of Mr. Gifford Connor, who was involved as an assistant surveyor in the adjudication

process, tended to suggest that no public footpath existed along the northern adjudicated boundary of the appellant's land (the Land).9

6 It was submitted to the judge that this lack of any indication of a public right of way on the demarcation map or the registry map, along with the absence of any note on the adjudication record, was decisive evidence that the alleged right of way did not exist, otherwise it would have been recorded. However, the judge held that what was revealed by the documentary evidence was not decisive. She stated:

"[19] Notwithstanding the provisions of the Land Adjudication Ordinance, which required, subject to any general or particular directions issued by the Adjudication Officer, that the boundaries of all public roads and public rights of way be indicated by the Demarcation Officer^{[10 See: section 11(b) Land Adjudication Ordinance]} the existence or non existence of a right of way is a question of fact and the state of the Adjudication Record or of the Demarcation and Registry maps, serve in my view, as merely part of the factual matrix in arriving at a determination as to the existence or not of a public right of way over the Land. I do not consider, therefore, that such documentary evidence as adduced, on an application of the provisions of the Land Adjudication Ordinance, is dispositive of the matter and the memorial evidence must also be considered to which I now turn."

7 After reviewing the memorial evidence and summarising the observations she made on her visit to the site the judge concluded that the path existed and had existed at the time of the land adjudication. The judge said:

"[34] Based upon a preponderance of the evidence from the witnesses of the Claimant as well as the Defendant's own witness, Egbert Dunstan Richardson, I am satisfied that a track or path of approximately 2-3 feet in width existed along what is now the adjudicated northern boundary of the Land at the time of the demarcation process and that this is what was observed on the ground by the Demarcation Officer which he drew and indicated on the Instruction Sheet,Exhibit 1. It is quite reasonable, in my view, to infer that what the demarcation officer depicted in Exhibit 1 could only have been gleaned from his field observations on visiting the site for the purpose of the demarcation and adjudication and he so noted."

8 Her finding that a path existed did not bring the matter to an end, the judge noted; she was required to apply the legal principles of dedication and acceptance which were essential for constituting the path or track as a public right of way as distinct

from a path used simply as a matter of neighbourly sufferance. Guided by statements of principles that she extracted from a number of cases that she cited, but recognising that the facts of each particular case had to be examined to see what inferences they supported, the judge examined the particular facts of this case and came down in favour of the inference:

"that the owner of the Land at some point in time presumably dedicated the track or path for use by the public in that he must have been aware that the public believed that the track or path forming the way had been so dedicated and took no steps to disabuse them of that belief. Accordingly, I hold that the said public right of way was in existence at the time of the first registration of the land in 1975 and as such, did not require notation on the register of the Land so as to give it legal efficacy."10

The widening of the path

9 Both sides accepted, the judge found, that the Government widened the track or path over the land in 1980, opening it up to vehicular traffic. It was widened to some 16 feet at that time. In February 2002, the road was extended in width to some 20 feet. The appellant's predecessor in title protested the first instance and the appellant protested the second instance of widening.

10 The judge found no sufficient evidence from which to infer dedication by the owner of the Land of the widened way. She therefore concluded that the public right of way was a track or footpath that extended to no more than 3 feet in width along the northern registered boundary of the land and the widening of this path by the Government was an unlawful encroachment upon the land of the appellant.11

The effect of finality of the adjudication of land

11 Counsel for the appellant in the court below based the case for the appellant on the proposition that when the boundaries of the land were determined pursuant to theLand Adjudication Ordinance and registered title to the land was issued pursuant to the Registered Land...