1. George Octave 2. Ivenia Octave Plaintiffs v Francis Maurice Defendant [ECSC]

• Jurisdiction: St Lucia
• Judge: Farara J (Ag)
• Judgment Date: 24 October 1997
• Judgment citation (vLex): [1997] ECSC J1024-3
• Docket Number: SUIT NO: 439 OF 1993
• Court: High Court (Saint Lucia)
• Date: 24 October 1997

[1997] ECSC J1024-3

IN THE HIGH COURT OF JUSTICE

(CIVIL)

A.D.1997

SUIT NO: 439 OF 1993

SUIT NO: 92 OF 1995

Between:

1. George Octave

2. Ivenia Octave

Plaintiffs

and

Francis Maurice

Defendant

Between:

1. George Octave

2. Ivenia Octave

Plaintiffs

and

Francis Maurice

Defendant

Appearances:

Mrs. Claire M. L. Green-Malaykhan for the Plaintiffs/Applicants

Mr. Martinus J. Francois for the Defendant/Respondent

1 Farara J (Ag) (In Chambers).

2 These two Suits were consolidated for trial by Order made 21st February, 1996 by d'Auvergne J.

3 In Suit 439 of 1993 filed 15th July, 1993 the Plaintiffs seek, inter alia, an order for improbation of a Deed of Sale made 10th November, 1989 between the First Plaintiff and the Defendant (registered 15th March, 1993 No. 107412) made pursuant to a written agreement dated 25th July, 1989 whereby the First Plaintiff agreed to convey to the Defendant certain lands comprising 2.44 hectares (6 acres) at Bisee in the Quarter of Castries, as consideration for the sum of $80,000.00 (Exhibits C03 and CO4); and for an injunction restraining the Defendant from dismembering selling or otherwise dealing with the said land until trial or further order. The Plaintiffs contend that the said agreement is void ab initio, inter alia, because of the First Plaintiffs lack of capacity because of inpairment of memory at the time. This suit is defended and a Request for Hearing was filed by the Plaintiffs solicitors on 6th April, 1994, but a trial has yet to be fixed.

4 Having received the Deed of Sale, the Defendant caused one (1) acre of the said land at Bisee to be surveyed and sub-divided into seven (7) lots for sale to repay debts incurred by him in the construction of the Plaintiffs' home at Maynard Hill. These seven (7) lots were then registered as Block 1049B Parcels 266 to 272 inclusive; and the remaining 6 acres as Parcel 273.

5 The Plaintiffs, on 22nd July 1993, caused a caution to be entered on the Land Registers relating to Parcels 266 to 273 thereby preventing the Defendant from selling or otherwise dealing therewith.

6 The Defendant's application made 7th June, 1994 for an Order for the removal of the caution was, on 20th July, 1994 after an inter partes hearing, granted in part by d'Auvergne J. The Learned Judge ordered the caution removal from Parcels 266 to 272 inclusive, representing the one (1) acre of land previously sub-divided by the Defendant, thus enabling the Defendant to sell those parcels. The caution was maintained over the balance of the land, Parcel 273, until the determination of Suit No. 439 of 1993.

7 However, the solicitors for the Defendant did not have the said order perfected as required by Order 42 Rule 5 of the Rules of the Supreme Court 1970, and an application filed 7th January, 1997 to extend the time to file the said order was refused by d'Auvergne J. in a written judgement delivered 22nd April, 1997.

8 Suit No. 92 of 1995 was commenced on 1st February, 1995. By their statement of Claim, as amended, the Plaintiffs' claim against the Defendant, as architect and builder, inter alia, damages (including special damages of $48,858.39) for breach of an agreement for the design and construction of the Plaintiffs' home at Maynard Hill, and rescission of the sale of the lands at Bisee by the First Plaintiff to the Defendant effected by the Deed of Sale sought to be improbated in Suit No. 439 of 1993. This second action (Suit 92 of 1995) is ripe for hearing and a Request for Hearing was filed by the Plaintiffs' Solicitors on 13th February, 1995.

9 The Plaintiffs by summons filed 14th March, 1997 in the consolidated action, seeks an injunction restraining the Defendant from selling or otherwise disposing or dealing with the land at Bisee registered as Block 1049B Parcels 266 to 273 inclusive, until the determination of the consolidated actions. However, the affidavit evidence, both in support of and in opposition to the said application, revealed that Parcels 267, 268, 269 and 271 were sold by the Defendant and so only Parcels 266, 270 and 272 of the one acre portion remains unsold; and, also, that Parcel 273 was sub-divided into Parcels 417, 418 and 419. How this latter sub-division and reparcelation, which would necessitate the making of new entries, was effected in light of the caution and the Order of the Court on 20th July, 1994 for its continued maintenance, is rather bewildering.

10 The Plaintiffs' Summons filed 14th March, 1997 is supported by the Affidavit of Carlyle Octave (the son of the Plaintiff) filed 30th May, 1997 with some six (6) exhibits, including the Report of Cromwell R. Goodridge, Chattered Engineer, dated 26th September, 1994 (C.O.I) addressing the damage to the Plaintiffs' home constructed by the Defendant and the methods for remedying said defects. Also exhibited is an estimate of the remedial costs by Charlemagne Construction Ltd. dated December 1, 1994 for $46,258.39 (C.0.2); a copy of the Agreement dated 25th July, 1989 (C.0.3) and the Deed of Sale dated 10th November, 1989 (C.O.4).

11 In opposing the Plaintiffs' application for an injunction, the Defendant filed some eight (8) affidavits, viz, the affidavit of Allan Hiployte, Alvin Daniel, Clement James, Joseph Remy and the Defendant Francis Maurice with some seventeen (17) exhibits, including a...