Baptiste et Al v Clarke
| Jurisdiction | St Lucia |
| Judge | Lewis, C.J. |
| Judgment Date | 10 December 1968 |
| Neutral Citation | LC 1968 HC 32 |
| Date | 10 December 1968 |
| Court | High Court (Saint Lucia) |
| Docket Number | Civil Appeal No. 2 of 1968. |
West Indies Associated States Supreme Court. (High Court)
Lewis, C.J., Lewis and Gordon, JJ.A.
Civil Appeal No. 2 of 1968.
V.A. Cooper for appellants.
K.A.H. Foster with Jean Raynolds for respondent.
Practice and procedure - Appeal — Leave to appeal — The respondent sought an order of partition of certain property which he claimed he owned jointly with the appellants. The question was whether the appeal was properly before the court
Held: No leave had been applied for and obtained in accordance with paragraph 15(4)(c) of the Federal Supreme Court Act. The appeal was not properly before the court and should be dismissed.
In this case the appellants ailed a notice of appeal in which they state they are dissatisfied with two decisions of the High Court contained in judgment of Bishop, J., dated 24 th April and 4th June 1968.
The decisions appealed against arose out of an action by the plaintiff/respondent against the defendants/appellants in which the respondent asked the court to order a partition of certain property which he claimed to own jointly with the appellants. It appears from the evidence that was given that he had acquired a share in this property from another group of co-owners.
The persons from whom he acquired, as well as the defendants are undoubtedly members of the succession of Mr. Fontenelle Jn Baptiste and his wife Toussine JnBaptisie, (nee Edouard) both deceased.
The appellants had put in a defence in which by paragraph 2 they said that under art. 652 of the Civil Code “they will contend at the trial that they should be allowed to reimburse the plaintiff the price of the assignment of shares of their co-heirs which they conveyed to the plaintiff and that the plaintiff should be excluded from the partition”. By paragraph 3 they pleaded that alternatively if the court ruled that article 652 could not be invoked, then the surveyor appointed by the court to carry out the partition should be ordered to allot the defendants collectively that portion of land which they had been occupying for several years.
It also appears from the evidence that this succession included certain other immoveable properties; this appears from the Declarations in respect of various successions that were put in evidence. There was no evidence as to whether the succession included any moveable property.
At first there was a suggestion by way of a document filed by the plaintiff's solicitor that a “preliminary point in issue” should be tried. This document reads: “Whether article 652 of the Civil Code of St. Lucia applies to the case of the defendants”.
When the case came up for trial, it was suggested that this should be dealt with as a separate issue on the basis of the facts alleged in the statement of claim, and the parties at the instance of the learned judge agreed to reduce into writing the points of law in issue; it was decided to submit an agreed document and the case was adjourned.
It then came back before the court on the 23 rd January 1968, when Mr. Cooper for the defendants informed the court that counsel could not now agree on the points of law, and so it was decided that the case should be tried as an ordinary ease in the ordinary way. A further adjournment was granted to the 4th April, when it came on for hearing and the plaintiff gave his evidence. A number of titles deals were put in as exhibits. Mr. Cooper did not cross-examine. The plaintiff closed his case and Mr. Cooper made a submission in accordance with paragraph 2 of the Defence. The submission was argued by both sides extensively, the judge reserved his decision, and his note on 24 th April is “Decision on submission delivered orally. Submission overruled”.
Now curiously enough, when that decision was reduced to writing, it was headed “Judgment” but of...
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