THE COURT of Appeal has slashed a $400,000 damages award to $150,000 while upholding a finding of trespass against the Simmonds family in a long-standing Manchester land dispute between neighbouring families.

The Morgan family – comprising Marylyn Morgan, her sister Melva Morgan, and her son Jason Salmon – took the Simmonds family to court in 2017, alleging trespass after members of the family began constructing a house on land in Swaby’s Hope, Spur Tree, Manchester, which the Morgans claimed to have possessed and used for over 40 years.

The Morgans subsequently filed a plaint in the Manchester Parish Court, seeking damages for trespass and an injunction to restrain the Simmonds family from further trespassing on the disputed property.

In 2022, the parish court ruled in favour of the Morgans, finding that the Simmonds family had trespassed on the land. The Morgans were awarded $400,000 in damages, with interest at three per cent from January 17, 2017, and ordered that no further construction take place on the property.

The Simmonds family – comprising siblings Wally and Ansel Simmonds and their nephew Oswald Parker – subsequently appealed the decision, challenging the findings on possession and the amount of damages awarded.

However, in a ruling handed down on October 9, the Court of Appeal reduced the award after finding that the $400,000 sum was unsupported by the evidence, as the Morgans had not established any quantifiable loss arising from the construction.

No evidence of quantifiable loss

The three-member panel comprising Justices Paulette Williams, Marcia Dunbar-Green and Georgiana Fraser found that the parish court judge had erred in awarding nominal damages in the amount she did, resulting in an excessive award.

“In the present case, there was no evidence of any quantifiable loss,” the court noted, adding that the $400,000 award could not be sustained.

The appellate court also set aside the interest awarded on the damages, finding that it was wrong to grant interest in the circumstances of an award for nominal damages.

However, the court upheld the finding of trespass, maintaining that the evidence supported the Morgans’ claim to possession of the disputed land.

In assessing the trespass claim, the court considered the distinction between ownership and possession, noting that a trespass action is concerned primarily with interference with possession rather than proof of legal ownership.

The parish court judge found that the Morgans had demonstrated factual possession of the disputed section, as well as an intention to occupy and use it as their own over several decades.

The evidence included testimony that the family had fenced and used the land for livestock rearing and other agricultural activities.

Marylyn Morgan testified that she had lived on the property since birth and that the land, including the disputed section, belonged to her parents. She said her family had cultivated crops, reared pigs, and used the property for domestic and agricultural purposes.

She also testified that, in 2017, she saw members of the Simmonds family clearing the land and beginning construction of a house without her permission.

The Morgans maintained that the construction interfered with their longstanding possession of the property and sought the removal of the structure.

The Simmonds family, however, disputed the claim, arguing that they had also occupied and used the land for decades.

Property tax receipts

Wally Simmonds testified that her father, Frank Simmonds, had cultivated yams on the property and that the family had raised animals there. She also referred to a chicken coop built by her father that was later converted into a workshop.

She produced property tax receipts covering payments made between 2015 and 2020, maintaining that her family’s use of the land and payment of taxes supported its claim to possession.

Under cross-examination, however, she acknowledged that the property was registered in the name of Ebenezer Edwards, whom she did not know personally. She also accepted that her father had neither inherited nor purchased the disputed land.

Representing the appellants, attorney Melrose Reid argued that the Simmonds family had openly and peacefully occupied the disputed land for more than 40 years, relying on its use of the property and payment of taxes as evidence of possession.

Reid contended that the Morgans had not occupied the specific section on which the house was being built and argued that the parish court judge had erred in finding that the Simmonds family were trespassers.

She maintained that the appellants had established factual possession through farming, livestock rearing and other activities, and that the construction of the house, without more, did not establish trespass.

Attorney John Clarke, representing the Morgans, argued that the Simmonds family had failed to establish both factual possession and an intention to possess the disputed land to the exclusion of the respondents.

Clarke further submitted that payments made by Frank Simmonds to the Morgans’ family were consistent with a tenancy arrangement rather than ownership. He argued that there was insufficient basis for the appellate court to overturn the parish court judge’s findings.

The Court of Appeal ultimately upheld the finding that the Morgans had established possession and that the Simmonds family had entered the disputed section without consent.

“The appellants have not demonstrated a better right to possession,” the judgment stated, concluding that the entry amounted to trespass.

tanesha.mundle@gleanerjm.com