Clairmont v Devexier et Al

• Jurisdiction: St Lucia
• Judge: Bishop, J.
• Judgment Date: 31 July 1968
• Neutral Citation: LC 1968 HC 25
• Court: High Court (Saint Lucia)
• Date: 31 July 1968
• Docket Number: Motion No. 30 of 1967

West Indies Associated States Supreme Court. (High Court)

Bishop, J.

Motion No. 30 of 1967

Clairmont

and

Devexier et al

Appearance:

Kenneth Foster for petitioner.

E.H. Giraudy for first and second named respondents.

Real property - Improbation proceedings — The point to be determined was whether articles of improbation were valid — The petitioner did not establish the assertions which he made in his articles of improbation. The petitioner was not the owner of the land in question and he was not entitled to deal with it as owner. The petitioner failed to prove that the land in question was conveyed to him in 1948. The articles of improbation would be dismissed.

Bishop, J.

1 Evesta Clairmont filed a petition on 20 ^th April 1967, in which he sought permission to be allowed to proceed by improbation against certain documents which Joseph Devexier and Annie Sucra had relied upon as exhibits in an action of trespass which they brought against Evesta Clairmont.

2 On the 29 ^th April 1967 the petition was ranted and the petitioner was allowed to proceed against two deeds of sale Nos. 68556 and 68558 registered and recorded in the Register of Deeds in Vol. 99 at 12.25 p.m. and respectively on the 20 ^th July 1959.

3 Articles of improbation were filed on the 10 ^th April 1968 by solicitors for the plaintiff in improbation, Evesta Clairmont. On the 13 ^th April 1968, the solicitors for the defendants Sucra and Devexier filed an answer. The other defendant named in the articles – Edward Charlemagne – has never appeared either on the record or at the hearing despite the service of numerous summonses to attend at the Registry and at the court, the last of which was served personally on him on the 2 ^nd July 1968, to attend at court. I am satisfied that this defendant was made aware of the petition of Evesta Clairmont and of the proceedings which followed the granting of the petition.

4 On the 8 ^th May 1968, an inscription for proof and hearing was filed by the plaintiff's solicitor and the hearing was fixed for the 20 ^th May 1968. Because of the non-appearance of Edward Charlemagne on that date, hearing was adjourned until the 4 ^th July 1968.

5 On the 4 ^th July 1968, neither counsel was present at court. Both of them sought – in absentia – to have the hearing adjourned on the grounds of their illness. This was explained to the parties. The plaintiff then expressed the view that the matter had been pending long enough and asked the court to proceed with the case in the absence of his counsel. The two defendants who were present made similar requests and in the light of there requests, the applications for an adjournment were refused and the hearing commenced. The evidence was completed and judgment was reserved to be delivered today. The parties, were directed to inform their counsel accordingly.

6 The evidence upon which this action is to be determined is contained in the testimony given by the plaintiff and his witnesses. The defendants elected to give no evidence in defence.

7 From my consideration of the evidence, I am satisfied that in the year 1948 the plaintiff in improbation purchased land from Wilhemina Arcano who normally lived in the United States of America and was represented in this territory by Marie Devaux a lawfully appointed attorney. The relevant deed of sale – an exhibit in the case – was recorded at 11.20 a.m. in the office of Deeds and Mortgages on the 20 ^th May 1948, in Vol. 88 No. 55879. The area of land which was purchased by Evesta Clairmont comprised and I quote: “all that portion of land dismembered from the Lamaz Laimarque Estate situate in the vicinity of the said Town of Vieux-Fort comprising Four Acres more or less but with no guarantee as to content, bounded on the North partly by lands of the Anglican Church, partly by a lot dismembered from the said estate sold to Acouba Ballay and partly by land formally belonging to the Barbados Settlement Company, on the South partly by lands of James...