Cyril Molyneaux; Gerda Molyneaux v Desmond Molyneaux
| Jurisdiction | British Virgin Islands |
| Judgment Date | 23 July 1999 |
| Neutral Citation | VG 1999 HC 13 |
| Docket Number | Suit No 136 of 1995 |
| Date | 23 July 1999 |
| Court | High Court (British Virgin Islands) |
IN THE HIGH COURT OF JUSTICE (CIVIL SUIT)
Moore J
Suit No 136 of 1995
The Plaintiffs are husband and wife. The Defendant is the brother of the first plaintiff. The parties are neighbours. They live in adjoining property situated at Long Bay, West End Tortola. Long Bay is a lovely place. It is one of the beauty spots of the earth. It is one of the places which make the British Virgin Islands such an alluring tourist destination. The Majestic Long Bay Beach Resort is the Queen of the properties where vacationers find the comfortable accommodations from which they can sally forth to enjoy the lazy sun-drenched days frolicking in the balmy waters of the blue Caribbean or reclining upon its white sandy beaches under the coconut palm fronds, caressed by gentle zephyrs beneath the azure sky.
But there are other properties sought out by holiday makers. Less imposing than the Long Bay, but cozy and picturesque, and more suited to the lower end of the Tourist Market. Many of these little guest houses, colourfully painted and surrounded by their pretty flower gardens, are owned by the hosts who operate them and undoubtedly bring in a handsome return on the investment put into them.
In June 1995, the Plaintiff acquired their property. They brought it from Winston Molyneaux who is a brother of the first plaintiff and of the Defendant. They complain that between June 1993, and January 1994, the Defendant and his servants or agents wrongfully:
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(a) Built or caused to be built part of a house on such part of the Plaintiffs' land comprising approximately 17,201 square metres as shown in red on the sketch plan attached hereto.
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(b) Removed or caused to be removed boundary markers delineating the Plaintiffs' said land.
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(c) Deposited or caused to be deposited debris on the Plaintiffs' said land.
The plaintiffs are aggrieved because the Defendant had continued to carry out acts of encroachment upon their property notwithstanding the protests of Winston Molyneaux when he owned the property and also those of the plaintiffs after they acquired it. Letters from Solicitors to the Defendant dated 22 nd October, 1993 and 7 th October 1995 proved equally ineffective. The Defendant simply continued to press ahead with what he was doing regardless of an earlier abortive action brought by Winston Molyneaux. In these circumstances, the plaintiff launched the instant action claiming an injunction restraining the defendant from committing further acts of encroachment on to their property, a mandatory injunction compelling the Defendant to remove any structure erected by him upon their land, possession of the land upon which he had encroached, damages, further or other reliefs, and costs.
Having filed the action, the plaintiffs sought an interim injunction which was granted by Williams J who on the 27 th October 1995 Ordered and Directed that the Defendant by himself his servants agents or otherwise be restrained from building upon or otherwise encroaching upon the plaintiffs' land registered as parcel 31 of Block 2135B of West End Registration Section save and except to remove building materials on the said land until after the trial of this action or until further order and that the costs of this application be costs in the cause.
It can be observed at this juncture that when the court, together with the parties and their Attorneys, visited the site during the course of the trial, it appeared that though building works have been suspended, much debris and other material belonging to the defendant still remains on what is admittedly the plaintiffs' property.
The Defendant by way of his defence, admitted that he commenced extension of a building as approved by the Development control Authority on parcel 29 of Block 2135B in the West End Registration section but contends that he was unaware that part of that building was being constructed on parcel 31 which is the plaintiffs' property. He denies removing boundary markers. He admits the receipt of a letter from the Solicitors representing Winston Molyneaux requesting that he cease the construction. He says that pursuant to the receipt of that letter, he ceased the construction as requested.
In response to the Plaintiffs' allegation that he had resumed building on their land on the 7 th October 1995; that they had instructed their solicitors to write to him demanding that he desist; and that despite their solicitor's letter, he had continued building on the 7 th and 8th October 1995, the defendant claimed that he was obliged to take steps to secure the structure because of damage caused to it by hurricanes ‘Luis’ and ‘Marilyn’. I do not believe him.
The Defendant had continued building works upon the plaintiffs' property in pursuit of his single minded determination to acquire the plaintiffs' property upon which he had built, and to force them to accept monetary compensation for having done so. Were the Defendant to succeed in his objective, he would have wrested from the plaintiffs, despite their resolute objection, a portion of their prime beach front property which he could then turn to his own economic advantage by completing the additional holiday visitor accommodation which the court was able to observe albeit in skeletal form.
Having been satisfied by a surveyor that he has encroached upon some 261.36 square feet of the plaintiff's land, the defendant has offered the sum of $6,613.02 as compensation for the land. But that figure takes no account of the future economic potential of the land or of the fact that, however attractive his offer may be in money terms, the plaintiffs are fully entitled in law to refuse it.
The Issue, as Mr. Hunte counsel for the defendant put it in his skeleton argument, is for the court to determine, on a balance of probabilities, whether this is a case for the grant of a mandatory injunction to tear down the offending construction or whether the payment of damages to the Plaintiffs will suffice. He urged the court to bear in mind.
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(a) The length to which the defendant went at expense to himself to ascertain the quantum of land encroached upon and it's the market value; and,
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(b) His persistent offers to compensate the plaintiffs for the encroachment.
With the greatest respect to learned counsel, these matters afford but cold comfort to the innocent plaintiffs whose land has been encroached upon. From the plaintiffs' point of view, they served to add insult to injury, and to rub salt and pepper in an already painful wound inflicted by the Defendant when he brazenly encroached upon their land. They looked equally askance at his tossing the sop of compensation to them as if the plaintiffs were powerless to refuse his overtures and were left with no option but to surrender their own land in exchange for the proffered compensation. I do not believe the dependant when he says that he was unaware that he was encroaching on the plaintiff's land when he commenced the addition to his own building.
Mr. Hunte asked the court to bear in mind the cost of tearing down the offending structure. From the evidence of my own eyesight, only the bare bones of what would have been the completed addition are in place. All that the eye can see are a few walls made of concrete blocks. The cost of dismantling them which the defendant puts at $25,000 is totally preposterous. It is a wild and witless exaggeration. Again, the defendant's figure of $40,000 as representating the cost of building and plumbing, emerges from the fantasies of his own imagination or more insidiously, from the machinations which he has contrived to dupe the Court into allowing him to keep that which is clearly not his, and which he has coveted for purely greedy, grasping, and avaricious reasons.
Mr. Hunte stressed that in the circumstances of this case, the court ought not to grant a mandatory injunction because the three basic principles required by Morris v Redland Brick Ltd 19709 AC 652at 665–666 were not satisfied. In this case, Lord Upjohn was dealing with what are described at page 663 C as the principles upon which the court will grant quia timet injunctions, particularly when mandatory’. Those principles were enunciated and applied within the context of the plaintiffs claim for relief in the face of his apprehended damage to his property by slippage of his own land in the future because of the admitted withdrawal of support by the defendant.
Though a quia timet injunction does not call for consideration in this case as the facts of this case do not warrant its examination, several principles of general application were enunciated by the court which may usefully be applied here. The evidence in that case disclosed that the appellants did not act either wantonly or in plain disregard of their neighbour's rights. The defendant's conduct in this case was of a totally different stripe. At all material times, I find from the evidence, he knew that the relevant portion of land upon which he was building belonged first to his brother Winston and laterally to the plaintiffs, but that, even though several complaints were made to him, he nevertheless pressed ahead in total violation of his neighbour's rights until restrained by the order of Williams J. Next, Lord Upjohn made it clear at page 664 D that ‘the granting of an injunction is in its nature a discretionary remedy.’ And at page 665 F reiterated ‘the grant of a mandatory injunction is, of course, entirely discretionary and unlike a negative injunction can never be ‘as of course’. Every case must depend essentially upon its own particular circumstances. Any general principals for its application can only be laid down in the most general terms.’ Dealing specifically with quia timet actions, he said at page 665 D:
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