The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

THE Bahamas Agricultural and Industrial Corporation is seeking to appeal a former chief justice’s order to pay a local nursery owner more than $90,000 as compensation for causing the damage and destruction of his plant inventory.

Court documents show how the corporation, represented by the Office of the Attorney General, is petitioning the Court of Appeal to set aside Sir Michael Barnett’s 2014 decision for it to pay $94,041.50 to Good Earth Nursery Ltd on Gladstone Road.

In August 2014, Sir Michael, now an acting appellate judge, ordered BAIC to pay William Albury $94,041.50 for the $37,500 worth of “damaged and suffering plants” and $56,541.50 for “dead plants” at the Gladstone Road property as of February 2009.

The plants were damaged due to a “rock crushing operation” on the property adjacent to Mr Albury’s, the dust and by-products of which were blown onto his plants and crops, causing “severe damage and loss of them”.

According to court documents, Good Earth Nursery Ltd, the plaintiff in that action, became a tenant of BAIC in 1998, when it entered into a lease agreement with BAIC for the purpose of operating a plant nursery.

According to Sir Michael’s ruling, the lease agreement contains a clause which provides that Good Earth, upon “paying the rents and observing and performing the covenants and stipulations” contained in the lease “shall peaceably hold and enjoy the dismissed premises”.

Around July 2006, however, an employee of the first defendant, Tony Miller doing business as T M Trucking, under the “direction and control” of the second defendant, Geneva Albury-Bowe doing business as Tradewind Enterprises, “transported and fixed to the property” leased to Mr Miller a “rock and soil crushing machine” and engaged in a “rock crushing and soil separating operation”.

Sir Michael noted that prior to 2006, the activities by the second defendant on its leased land “did not constitute a nuisance nor did it interfere with Good Earth’s enjoyment of its leased property”. Sir Michael said it was not until 2006 when the second defendant “permitted the rock crushing operation on its property that the activities on that property interfered with Good Earth’s business”.

Sir Michael ultimately ruled that BAIC was liable for the damage caused by the rock crushing operation, agreeing with Good Earth’s submissions that BAIC ought not to have allowed another “lessor” to use its leased property in a manner which “substantially interferes with Good Earth’s ability to use its property in the manner which BAIC agreed and required that the property should be used.

He also said that BAIC, under its lease with the second defendant, had the ability to stop the second defendant from “using its property to carry out rock crushing operations” and that its failure to do so was “a breach of its quiet enjoyment covenant with Good Earth”.

Thus, Sir Michael said the liability “must extend to the case where the landlord is capable of preventing the nuisance by his tenant but fails to do so”.

According to the ruling, on May 17, 2009, a report was compiled based on inspections of Mr Albury’s lot.

The findings showed a loss of $37,500 for damaged and suffering plants as of February 2009 and $56,541.50 for dead plants as of February 2009.

Adding the two costs, Sir Michael ultimately entered judgment for Good Earth against BAIC in the sum of $94,041.50. He ruled that BAIC “will pay Good Earth’s cost to be taxed if not agreed”.

However, BAIC is now contending that on the facts and review of the judgment, Sir Michael “erred in law” by failing to “follow and or properly exercise his discretion by not adequately or at all, adhering to the provisions of Order 31A, Rules of the Supreme Court, moreso Order 31A, Rule 12(2), when he “proceeded to conduct case management and a substantive trial without properly ascertaining the reasons for the appellant’s non-appearance”.

BAIC further contends that on a “true construction of the evidence”, documents and authorities relied upon, Sir Michael erred in law and in fact by finding and adjudging that the appellant was liable for breach of the covenant for quiet enjoyment.

The corporation also asserts that Sir Michael “erred in law and in fact when he failed to properly apply the authorities, which speaks to the authorization, causing, permitting and or approving the act complained of”.

Mr Albury, with his attorney Troy Kellman, appeared before the appellate court in anticipation of proceedings concerning BAIC’s appeal of Sir Michael’s ruling. However, the matter was ultimately adjourned to a later date.

In April of 2016, Mr Albury told The Tribune that not only had the corporation failed to comply with Sir Michael’s order, but was instead charging him $6,400 in lease fees and demanding that he demolish a building on the property.

BAIC, in a letter addressed to Mr Albury and signed by former BAIC executive chairman Dion Smith, claimed Mr Albury “failed and or refused” to pay his yearly lease fees for the period 2014-2016.

BAIC also claimed Mr Albury erected a building on the property that was being used as a house, which BAIC said is a breach of Mr Albury’s lease agreement with the corporation.

Mr Albury has said he had no qualms about paying the $6,400 in arrears, granted BAIC pay him the $94,000 owed to him, especially given that the latter sum is nearly 13 times the $6,400 BAIC is seeking in outstanding lease fee payments.