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(NOLAN JACKSON
(
PLAINTIFF
BETWEEN (AND
(
(
(AUSTIN GABOUREL
DEFENDANT

Supreme Court
Action No230 of 1992
5th April, 2000
Shanks, J.

Mr. Gaznabbi for the Plaintiff
Mr. Dujon for the Defendant

Trespass - Ejectment - Action time barred - Section 12(2) of the Limitation Act - Application of Act to actions of trespass.

J U D G M E N T

This is an action to eject the Defendant from a piece of land to the south of plot 36 of the North Stann Creek lands, formerly the Carib Reserve. Plot 36 was acquired by the Plaintiff from his father by a Deed of Gift dated 15th August, 1989. His father had acquired it by an Indenture dated 10th May, 1969. Although the Plaintiff only acquired legal title to the land in 1989, he had in fact been given it informally by his father as long ago as 1972.

At the time that his father acquired the land, there were grapefruit trees to the south of the plot already established. The Plaintiff told me that the Defendant, Austin Gabourel, had been sold these trees in 1979 and that ever since he had harvested and cleaned the trees each year. The Plaintiff told me that he was unable to cut down the trees because Mr. Gabourel would have complained that they were his, Gabourel's trees. He also told me that he had put up a fence where he said the boundary was to the south of the trees but that Mr. Gabourel had removed that fence and finally he had resorted to these legal proceedings which were begun in 1992.

The Plaintiff gave a certain amount of evidence about a surveyor visiting and where he said the peg for the south east corner of plot 36 should lie and that the grapefruit trees that I have mentioned therefore lay within plot 36 but this, of course, had been denied by the defendant. I don't need to decide whether the Plaintiff was right in where he says the south east corner of this plot of land should be, but I am inclined to think that he probably was right and therefore that there has been a trespass by the defendant on the land to which the Plaintiff is legally entitled.

The reason I don't need to decide finally whether the Plaintiff is right or not is that Mr. Dujon, for the Defendant, (who did not come to Court to give evidence) says that the action is time barred by Section 12(2) of the Limitation Act, given the Plaintiff's evidence that the defendant had been on the land where the grapefruit trees lie since 1979, which is at least 13 years prior to the commencement of these proceedings. It seems to me that Mr. Dujon's defence must be a good one and no answer to it has been suggested by Mr. Gaznabbi who appeared for the Plaintiff. In those circumstances I have no choice but to dismiss his claim which I do.

[After discussions, Plaintiff to pay costs which is to be satisfied in full by the set off of costs ordered on earlier occasion.]

 

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