Tweed v Tweede & Associates Garbage Ltd

• Jurisdiction: Saint Kitts and Nevis
• Judge: Singh, J.A.
• Judgment Date: 19 September 1994
• Neutral Citation: KN 1994 CA 5
• Docket Number: Civil Appeal No. 7 of 1993
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 19 September 1994

Court of Appeal

Floissac, C.J.; Byron, J.A.; Singh, J.A.

Civil Appeal No. 7 of 1993

Tweed

and

Tweede & Associates Garbage Limited

Appearances:

Dr. Henry Browne, Mrs. Claudette Jenkins with him. for the Appellant.

Sir Probyn Innis for the Respondent.

Damages - Detinue and conversion — Area near dump designated for placement of scrap metal prior to shipment overseas — Area close to where normal garbage stored — Scrap removed by appellant's servants — Whether property became res derelicta — Whether liable in conversion — Quantum.

Singh, J.A.

1 In St. Kitts, there is an area at Conaree called the Conaree pump where the populace can dispose of their unwanted goods. Upon such disposal happening at this dump, the property disposed of becomes prima facie res derelicta and can be taken by anyone.

2 By a letter dated September 2, 1991, the Ministry of Trade and Industry through its Permanent Secretary Mr. Sydney Osborne confirmed to the respondent that an area has been designated at the Conaree Dump for your Company to place scrap metal prior to its shipment overseas”. According to the vive voce testimony of Osborne the designated area “could be approximately 50–100 yards from, where normal garbage is placed”. On July 25, 1991 the respondent saw workmen of the appellant removing a truck and a scraper. The respondent left and returned with a police officer. The respondent then claimed the articles as his. The appellant told the officer that the articles were taken from the Conaree Dump and if anyone is claiming them they will have to satisfy him that they had ownership of the goods and that where they were found was private property. The respondent said nothing more. He consulted his lawyer, letters were exchanged and suit was brought by the respondent against the appellant. In that suit the respondent claimed that it “has lost the value of the said equipment and material and he suffered loss and damage, in that it has been deprived of the use of the property for purpose of exporting same or utilizing same for spare parts”. That loss, was quantified in the Statement of Claim at $527,258. The respondent led no or no sufficient evidence purporting to prove this sum.

3 Hylton, J. heard the matter and awarded general damages only, in the Sum of $15,000 to the respondent for being deprived of the use of his chattels. This appeal challenges this judgment of the learned trial Judge on two main grounds:-

• 1. Whether the custom of removing items from the Conaree dump was custom existing since time immemorial.

• 2. The award of general damage.

4 Regarding the first issue, the learned Judge held that:-

“The Conaree Dump was established during the lifetime of the Plaintiff's witness Bertram Tweede and consequently the practice of removing therefrom abandoned items has not ripened into a custom from time immemorial but is one recognized by both Plaintiff and Defendant as well as all witnesses who testified apart from the Police Officer Alleyne.”

5 She also found that

“The site specifically designated to the Plaintiff/Company for use as at (2) above was some distance away from the site where garbage etc. was dumped generally.

The Defendant was specifically made aware during the process of removal of certain derelict equipment on 26th July, 1991 —even if he was not so aware before —that the Plaintiff/Company through its Managing Director Bertram. Tweede claimed the derelict equipment that he and his workmen were removing.”

6 These are findings of fact. I have not been Persuaded to differ from them.

7 The conclusion to be drawn from these findings is that tree items taken by appellant were not taken from the Conaree Dump where the public generally has access and right to take any property found therein, but from an area specifically designated to the respondent for storage of his scrap some 50 to 100 feet away. This fact was brought to the notice of the appellant. Because of these findings, consideration of the question of custom since time immemorial” becomes academic and I do not propose to dwell on it. I therefore find no merit in the appeal on the question of liability.

8 The appeal also challenges the Judge's Order on damages on the ground of lack of evidence. The learned Judge made no award of special damages as none was proved. The Carrie for her award of general damages was the deprivation of the respondent of the use of his chattels. I agree with the submission of learned Counsel for the appellant that the only chattels for consideration could be one truck and one scraper. These were the two items Bertram Tweede saw the appellant taking away on July 25, 1991 and the respondent's claim speaks about 25th July, 1991. There is no acceptable...