Hansraj Matadial Claimant v Cecelia John Defendant [ECSC]
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Blenman J |
| Judgment Date | 26 March 2007 |
| Judgment citation (vLex) | [2007] ECSC J0326-2 |
| Docket Number | CLAIM SUIT NO. 554A OF 2002 |
| Court | High Court (Saint Vincent) |
| Date | 26 March 2007 |
IN THE HIGH COURT OF JUSTICE
CLAIM SUIT NO. 554A OF 2002
CLAIM SUIT NO. 555 of 2001
Mr. Samuel Commissiong for Claimants
Mrs. Kay Bacchus-Browne for the Defendant
Blenman J, These are two claims for malicious prosecution and counterclaims for damages for money spent on water charges, allegedly incurred due to the unlawful use of water by adjoining neighbours.
The two claims were consolidated and heard together; they indicate the sort of unhappy differences that can arise between neighbours, and which can, and often do result in protracted litigation.
Mr. Hansraj Matadial (Mr. Matadial) is a Barrister and a Solicitor practising in Saint Vincent and the Grenadines. He resides at Stoney Ground Cane Garden Saint Vincent and the Grenadines with his wife Mrs. Grace Matadial (Mrs. Matadial) (The Matadials).
The Cane Garden Apartments Ltd is a company that owns apartments that are also situate in Stoney Ground Cane Garden, Saint Vincent and the Grenadines.
Mrs. Cecilia John (Mrs. John), who ordinarily resides in the United Kingdom owns a property situate also in Cane Garden, Saint Vincent and the Grenadines.
The Matadials have sued Mrs. John for malicious prosecution; they allege that as a result of Mrs. John's false allegation against them, that they had stolen her water, they were wrongfully charged and maliciously prosecuted in the Magistrate Court. The charges were prosecuted by Mrs. John who utilized the services of Mr. Bayliss Frederick (Mr. Frederick) Attorney at law. The Matadials contend that at the close of the prosecution's case Mr. Frederick conceded that the ingredients of the charges were not established and they were acquitted. As a result, the Matadials have filed these proceedings and seek both special and general damages against Mrs. John.
The Matadials further contend that Mrs. John through her servant or agent caused the charges of larceny to be published in the newspapers. They say that the charges against them were the subject of several discussions on radio talk shows and they have suffered loss as a consequence.
Mrs. John denies that she maliciously or falsely caused the Matadials to be prosecuted. She contends that her decision to prosecute was based on professional advice that she received from the personnel of the Central Water And Sewerage Authority (CWSA) and her Attorney at Law Mr. Frederick. Mrs. John disputes that she was actuated by malice in prosecuting the Matadials. She also denies that she was in any way whatsoever involved in the publication of the charges.
Mrs. John counterclaims against the Matadials and seeks to recover from the Matadials the sum of money she says that she expended in liquidating the water charges, which she alleges were incurred due to the unlawful diversion of the water away from her property to the Matadial's property. The Matadials deny that Mrs. John is entitled to any compensation from them.
The issues that arise for the Court determination are as follows:-
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(a) Whether Mrs. John has maliciously prosecuted the Matadials;
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(b) If so, what is the amount of damages to which the Matadials are entitled?
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(c) Whether Mrs. John is entitled to be compensated for the loss she alleges to have suffered.
The Matadials testified on their own behalf and called Mr. Daniel Cummings (Mr. Cummings), Mr. Randolph Toussaint (Mr. Toussaint), and Mr. Keith Constance (Mr. Constance) in support of their claim. The Matadials also tendered several documents in evidence including the transcript of the proceedings in the lower court. Mrs. John testified on her own behalf and called Mr. Ardon Lee (Mr. Lee) Mr. Bayliss Frederick (Mr. Frederick) and Mr. Tyrone Olliver (Mr. Olliver) in support of her case. Mrs. John also tendered several documents into evidence. In addition the Court visited the locus in quo.
The first witness to testify was Mr. Constance. In his witness statement he stated as follows:
I live at Belair in the State of Saint Vincent and the Grenadines. I am a plumber by profession. I do not know Mrs. Cecelia John, but I know that she is the owner of a house near to Cane Garden Apartments. I started to do plumbing work for Cane Garden Apartments and for Mr. and Mrs. Matadial's private residence from about the year 1998. I had to visit the premises of Cane Garden Apartments on a regular basis, sometimes daily. The reason for this was that the elbow joints in the four apartmentsat Cane Garden were defective in that all of them developed hairline racks and were leaking. I had by then changed about all of them. On the premises of Cane Garden Apartments is a black water tank which has a toilet float, this float sticks at times and I normally adjust it so as to stop the tank overflowing when the tank is filled. That float was installed by Winston Webb another plumber. Whenever I adjust the float the tank would stop overflowing. To assist further with the overflowing I put in two stop corks which can be turned off when the tank is filled. Water from the tank can only feed the apartments when the street water is off. Each of the four apartments has four separate water metres which are numbered 1A and 1B, 2A and 2B. I could swear positively and say that if there was any water connection from Cecelia John's property to Cane Garden Apartments he would have seen it. However, he never saw any connection between the Cane Garden Apartments and Mrs. John's property."
During cross examination by learned counsel Mrs. Kay Bacchus-Browne, Mr. Constance said he started to work for the Matadials about three years ago. He also worked on the apartments; if the elbows on the PVC pipes got hairline cracks he would repair them and this he did probably twice a month. Later, he said that he worked daily on the elbow and T Joints. There are four apartments and he worked on them regularly and in his view he must have changed about 80% of the fitting on the apartments. At one time, he observed that the pipes were leaking and he fixed them. In his view, a couple hundred gallons of water were lost (on that occasion). He denied ever seeing any PVC pipe going from the tank on the Cane Garden Apartment to the ground. While he did not fix any of the Matadials pipes for the month preceding his giving evidence, he was sure that he had worked on the Cane Garden Apartments for the last 3 – 4 years. The problems still persist at the Cane Garden Apartments. One occasion, he saw water overflowing from the tank in the Matadial's yard and he tried to fix the problem. He adjusted the valve to the large black tank. He had cause to fix the tank about 3 – 5 times and this was between 2000 – 2002. He was sure that on one occasion he had to empty the entire tank in order to repair it. He was clear that he did not see any PVC pipe leading from the tank on Matadial's property. He had to work on the valves and checked them early last year. There are two stop corks on Mr. Matadial's property and he is unaware of the stop cork on Mrs. John's property. He said that when he turned off the stop cork on the Matadial's property the water stopped running.
During re examination by Learned Counsel Mr. Commissiong, Mr. Constance said that there are over 200 elbows, in the apartments, made of PVC. He often changed them when the need arose since from time to time the water pressure caused the elbows to crack.
In his witness statement Mr. Matadials stated that:
"About 100ft from where I live are two houses constructed on a portion of land owned by a company called Cane Garden Apartments Limited, of which my wife Grace Matadial is the sole director. Each of the two houses consists of two floors, an upper floor and a lower floor. The upper floor has a three bedroom apartment and the lower floor consists of a one bedroom apartment. Each of the four apartments has its own separate water meter and electric meter. The house nearest to the road, the water meter for the upper apartment is numbered 1A and the water meter for the lower apartment is numbered 1B. The house at the back, the water meter for the upper apartment is numbered 2A and the water meter for the lower apartment is numbered 2B. The idea behind installing four water meters and four electric meters is that whenever the properties are rented, the tenant pays his own water and electric bills. On the left hand side of the house at the back, is a black water tank. The idea behind the installation of this water tank is that whenever the street water is turned off, the water tank then supplies the four apartments. The supply of water for that tank passes through the meter for apartment 2A. Once the street water is not turned off, the tank cannot supply the apartments because of the installation of a gate valve. There is a toilet-like float installed inside the tank which is supposed to stop the flow of water into the tank when it is full. At times this float does not work properly and water still continues to go into the tank and drip over the side. My wife normally calls a plumber, Mr. Keith Constance, to adjust it. Because all the elbow joints in both houses were defective, the plumber visited the premises nearly on a daily basis over a period of time. Obliquely opposite the tank Mrs. John has a house. Mrs. John gets her water supply from a street facing her house and Cane Garden Apartments Limited gets its water supply from a different street facing its two houses. Mrs. John had persons occupying her house prior to March 1999 and for the months of April, May and September 1999 and for the months of February to May 2000.
On the 17th day of October 2001, Mrs. John instituted a charge of larceny of water against me...
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