1.Edward Fessal 2. Hayden Fessal 3. Lily Fessal by their Attorney-Stanislaus Fessal Plaintiffs v J Jill Valerie Bacon Defendant [ECSC]
| Jurisdiction | St Lucia |
| Judge | Matthew J. |
| Judgment Date | 19 June 1996 |
| Judgment citation (vLex) | [1996] ECSC J0619-4 |
| Court | Supreme Court (St Lucia) |
| Docket Number | Suit NO 194 of 1996 |
| Date | 19 June 1996 |
IN THE COURT OF JUSTICE
(CIVIL)
A.D. 1996
Suit NO 194 of 1996
Mr. O. Larcher for Plaintiffs
Mr. K. Monpiaisir Q.C. and Miss H. Ali for Defendant
Matthew J. (In Chambers).
On March 7, 1996 the Plaintiffs filed a writ of summons indorsed with statement of claim asking, among other things, for rectification of the Defendant's own parcel of land, Block 1455B parcel 108 and rectification of the Plaintiff's own parcel of land, Block 1455B parcel 109. The claim asked that the Defendant's acreage be lessened and that the Plaintiffs' acreage be increased.
Put shortly it is the Plaintiffs' contention that the Defendant's land certificate should state that they are owners of 1/2 of one carre of land and not 2.50 hectares and that the difference be added to their certificate which contains 5.5 hectares.
By their statement of claim the Plaintiffs alleged that the Defendant on March 12, 1965 bought only 1/2 of a carre of land and the excess land on her certificate, amounting to approximately 4 3/4 acres of land, rightly belongs to the Plaintiffs.
They allege that the excess land was erroneously and mistakenly surveyed for the Defendant by licensed land surveyor, Ornan Monplaisir, on December 10, 1975 and that before the Defendant purchased the land they were in possession of the excess lands.
They allege that during the survey the plaintiffs were out of Saint Lucia and could not protect their interests. They allege also that during the demarcation process under the Land Adjudication Act of 1984 they duly claimed the excess land as being part of their property and that they demarcated the same by their agents.
They go on to state that the excess lands were erroneously and mistakenly entered in the name of the Defendant and that they were unable to appeal the error or to institute legal action against the Defendant because they were frustrated by a High Court action, Suit 321 of 1989 brought by Clifford Sylvester against them and so they had no alternative but to wait for the decision in that suit which was given on May 31, 1995 in their favour.
They allege that the Defendant has again employed Ornan Monplaisir to resurvey the property with a view to its disposal.
On the said March 7, 1996 the Plaintiffs took out a summons asking for an order to restrain the Defendants from surveying, subdividing, selling or disposing of the land registered in her name. The summons was supported by an affidavit by Stanislaus Fessal on behalf of the Plaintiffs which reiterated the matters mentioned in the statement of claim. I took note of paragraphs 2, 3, 4, 4(a), 7, 9 – 12, 14, 18 and 21 in particular.
Attached to this affidavit were several exhibits numbered 1 – 1.0; 12 – 13. I had a look at all of them and will refer to them if, when and where it is necessary so to do. Some of the exhibits in my view had no bearing on the case and here I refer to Exhibits 10, 12 and 13. I did not see Exhibit 11.
The Defendant filed an affidavit in opposition on March 28, 1996 and Ornan Monplaisir filed one on the same date in support of the Defendant's contention. Attached to the affidavit of the Defendant were certain exhibits some of which were already tendered by the Plaintiff. The Defendant alleged that she purchased her land from Johannes and Eugenis Joseph and she had enjoyed possession since then and she employed Ornan Monplaisir to survey for her in 1975 and on November 19, 1986 the land was duly entered on the land register in her name and i was only on December 1, 1993 when suit 321 of 1989 was instituted that she first became aware of any dispute to her title.
Ornan Monplaisir stated that when he surveyed the land in accordance with the boundaries stated in the Defendant's deed of sale Altenor Joseph was present representing the heirs of Paul Fessal. He said there were no objections to the survey and he recorded this in the memorandum to the plan of survey. This plan is Exhibit 4 of the Plaintiffs' list and JVB 2 of the Defendant'n list.
The Plaintiffs filed three affidavits in reply to that of the Defendant on May 31, 1996. One was by Stanislaus Fessal in which he alleged that the Defendant was never in possession of the land and that during the Registration and Titling Project, Altenor Joseph claimed the excess land on behalf of the Plaintiffs. In yet another affidavit in reply the said Stanislaus Fessal deposed that he has always known Altenor Joseph to be in charge of the lands of Paul Fessal. The third affidavit was by Altenor Joseph who stated that he is presently 82 years old and that he categorically denies the allegation by Mr. Ornan Monplaisir that he was present and represented the heirs of Paul Fessal when Monplaisir was carrying out the survey for the Defendant on December 10, 1975.
During his submissions learned Counsel for the Plaintiffs relied on the Defendant's deed which said she purchased 1/2 of one carre of land in 1965 but by 1975 she ended up wich over six acres of land.
Counsel submitted that the excess property belongs to the Plaintiffs. Counsel further submitted that Altenor Joseph was in charge of the land for the Plaintiffs and he has denied being present when Ornan Monplaisir surveyed for the Defendant.
Counsel said the injunction was necessary to restrain the Defendant who is in her seventies and spends half of he time outside of Saint Lucia.
Counsel made reference to David Bean's sixth edition on Injunctions at pages 4, 29 and 30 and to the third edition of Halsbury's Laws of England, Volume 15, page 184, paragraphs 357 and 358 to urge that the matter was not res judicata.
In his reply, learned Senior Counsel for the Defendant referred to the fact that the Defendant is the registered proprietor of the land in question and he mentioned the American Cyanamid case, 1975 A.C. 396. Counsel submitted that the Plaintiffs have no legal right to protect and he based that proposition upon Section 23 of the Land Registration Act.
Counsel then submitted that under Article 2103 of the Civil Code the Defendant's rights are prescribed since she purchased in 1965 and the case against her was only filed in March of 1996.
Counsel then submitted that even if there is no...
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