Barbara Gayle, Justice Coordinator

KINGSTON, Jamaica:
The owner of a property in Mammee Bay, St Ann has lost his claim in the Supreme Court to recover the property which had been occupied by a couple without his permission since 1996.

The claimants, David Elie Fdeda and Anthony Paul Alberga, had brought a suit in 2011 seeking an order that the defendants, James Klein and Susan Kelin-Lord, had no authority to occupy the land.

The claimants contended that since 2010 they observed the defendants erecting a perimeter fence on the property.

The defendants, who own a property adjoining the piece of land, claimed they had been occupying the property since 1996.

They said they farmed the property and reared goats on it.

Justice David Batts, who heard the matter, had to decide whether the defendants were in possession of the land for more than 12 years.

In handing down judgement, Justice Batts said he was satisfied that the defendants had been in peaceful, open and undisturbed possession of the land since 1996 and they should continue to occupy the property.

The judge said he was satisfied that the defendants had fenced the land, had introduced some form of irrigation on the land and had cultivated it.

It was the judge's finding that whatever was the defendants intention when they started bushing the lot, by the time a fence was erected and intensive cultivation embarked on, they were clearly acting as owners.

The judge said it was suggested on behalf of the claimants that one of the main purposes of Mammee Bay Limited was to protect the interest of lot owners and hence to prevent the squatting.

He said it was suggested that defendant, James Klein, who was a former director of Mammee Bay Ltd was well aware of that policy.

The judge said, however, that whether or not that was so it bore no great relevance to the issue of fact.

He said the fact that Klein, as a director, took steps to prevent squatting on other lots was not evidence that he would not have squatted on a lot neighbouring his property.

The judge said that there was no breach of fiduciary relationship to Mammee Bay Ltd because the piece of land in question was not owned or controlled by the company.

He said further that when taking possession of the lot, neither defendant was acting on behalf of Mammee Bay Ltd or purporting to so act, the company could not be said to be breaching a fiduciary duty to the claimants.

Donald Scharschmidt, QC instructed by Yvonne Bennett of Robinson Phillips and Co represented the defendants.

The claimants were represented by attorneys-at-law Judith Clarke, Gloria Brown and Kim Bowen.

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