Benjamin Ponteen (Lawful Attorney for Carolie Ponteen) v Montserrat Land Development Authority
| Jurisdiction | Montserrat |
| Judge | Morley J |
| Judgment Date | 05 November 2018 |
| Judgment citation (vLex) | [2018] ECSC J1105-1 |
| Court | High Court (Montserrat) |
| Date | 05 November 2018 |
| Docket Number | CASE MNIHCV2010/0017 |
IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CASE MNIHCV2010/0017
Dr David Dorsett for the applicant.
Ms Chivone Gerald for the Montserrat Land Development Authority
Ms Cedrecia Shiel for the Attorney General.
Following argument on 13.07.18, I am asked to decide whether a dirt road on Montserrat leading to property belonging to the applicant (Ponteen 2) is a public road within the meaning of Roads Act Cap 7.07 (as at 01.01.13), because if so the Montserrat government will be under an obligation to maintain it, which will mean improving it and paving it with tarmac at public expense. In addition, or in the alternative, I must decide if Ponteen has shown on balance there was an enforceable agreement with the first respondent (MLDA), in the form of an implied term, to treat the dirt road as a public road, and therefore pave and maintain it.
In 1997, the volcano on Montserrat destroyed the airport, requiring another to be built. In turn, the new airport required the government to relocate James Farrell (aka Mop-up). He was placed at parcel 15/7/45. To get to his property, a road was cut, but on land belonging to Ponteen at parcel 15/7/37. In recompense, on 14.08.01 the MLDA agreed in writing to ‘a road being cut by the MLDA starting at the southern end of the border of plot 37 going north and an extension of the road leading to Mop-up approximately 30ft beyond that boundary line’. The MLDA then did nothing for over ten years, until compelled by threat of court action, leading to a mediation agreement on 17.07.12 and consent order on 23.07.13. A road was duly cut.
However, Ponteen wants the road tarmacked and maintained by the government. He argues it was an implied term it shall be.
But in the agreement of 14.08.01, the word used was ‘cut’, which imports the plain meaning of a one-off event, and does not naturally lend itself to later maintenance. Moreover, to cut a road means the ground will be stripped, gouged and flattened so that vehicles can pass, and does not imply the road will be made any more sophisticated. There have been many such roads cut on Montserrat. If Ponteen was to have shown an agreement to tarmac and maintain, I would expect the agreement at least to say a road was to be ‘constructed’, which could imply something more than simply ‘cut’.
In addition, Ponteen argues the term must be implied, of necessity, as otherwise there can be no effect to the agreement.
This is plainly not so, as the Court has visited the road and what has been cut is usable and passable by vehicles, which was what the agreement was for.
Finally, the MLDA would not have agreed to tarmac and maintain, so that it is positively a term of the contract merely to cut the road, not more, as it had no authority to bind the Inspector of Works and Roads, within the Ministry of Communications and Works, who has the responsibility for maintenance, per s6 and s7 Roads Act Cap 7.07, as amended.
For these reasons, I find there was no implied term to tarmac and maintain the road cut.
Ponteen then argues the road cut is a ‘public road’ within in the meaning of s2 Roads Act, which defines one as a road ‘over which the public has a right of way’. He declares the road cut is a public right of way to his property, expressly granting the right. If a public road, then under s7 supra, the inspector has a duty to maintain it.
However, there are two flaws in the argument presented.
The first is close reading of the Roads Act shows that, under s3, public roads are ‘Such roads as the Governor acting on the advice of Cabinet may by order appoint’. It follows a public road needs to...
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