Barbara Gayle, Senior Gleaner Writer

A private property owner who successfully sued Jamaica Public Service Company (JPS) for trespass was again vindicated by the appeals court.

Damages are to be assessed.

The Court of Appeal upheld a Supreme Court ruling that the JPS was a trespasser on a property at Rhymesbury, Clarendon, on the basis that JPS had failed to register its rights to access the property on the title.

Although JPS entered into a contract in 1996 with the then owner Hubert Melville and had a 'grant of easement' entitling it to use the property, the information was not registered on the title.

As a public utility, JPS is entitled under the Electric Lighting Act to register the easement on Melville's title for the land, but did not do so.

The grant of easement stated that the JPS had paid J$20,000 to Melville for the right to construct, maintain, repair, inspect, remove, replace and operate its towers and lines across his land.

The title for the property was subsequently transferred to Melville's widow, who in 2003 agreed to sell the property to one Rose Marie Samuels. The sale was completed in 2008.

Samuels said in court documents that she saw JPS's equipment on the property during the course of the transaction but ascertained that there was nothing registered on the title regarding their right of access.

Samuels, who was represented by attorneys-at-law Sean Kinghorn and Dale Staple, filed a suit in the Supreme Court in April 2008 claiming damages against the JPS for trespass and sought an order for the removal of the equipment from her land.

JPS filed a defence denying the trespass, which relied on the 1996 agreement with Melville. The utility company also asserted that Samuels, having purchased the property with knowledge of its presence on the land, could not legally deny its right to remain on the land.

Supreme Court Judge Frank Williams rejected JPS's defence in January 2010 and declared JPS' presence as constituting a trespass on the land. Justice Williams gave Samuels the go-ahead to have damages assessed arising from the trespass.

JPS, which was represented by Patrick Foster QC and Tavia Dunn, appealed on the grounds that the judge failed to consider that Samuels was aware at the time of purchase that its equipment was on a portion of the property.

JPS also argued that the judge failed to consider that legal or equitable rights would have accrued to it by virtue of its occupation of the property with the agreement of the previous owner.

In its dismissal of the arguments, the Court of Appeal, comprising Justice Hazel Harris, Justice Norma McIntosh and Justice Patrick Brooks, said that while JPS was entitled, by virtue of section 41 of the Electric Lighting Act to have the document registered on Melville's title for the land, it did not do so.

The court said that once the title had been transferred to Melville's widow, JPS was precluded, thereafter, from registering the agreement and it made no further agreement with Mrs Meville concerning the use of the land.

"The essential principle that is relevant for these purposes is that a person dealing with the registered proprietor is normally only bound by that which appears on the face of the registered title", the court held.

It was also the court's finding that the relevant sections of the Registration of Titles Act demonstrate that JPS, by failing to register the document on the certificate of title, failed to secure any interest or right to the land. The judges said the agreement with Melville remained a personal contract and did not, by itself, bind any person succeeding Melville.

The court said JPS's contractual licence ceased immediately when the land was transferred to Samuels.

The court ordered JPS to pay Samuels's legal costs. The matter is to proceed to assessment of damages, taking into account the date on which Samuels became entitled to possession of the property, the court ruled.

barbara.gayle@gleanerjm.com