Clarke v Baptiste

• Jurisdiction: St Lucia
• Judge: Bishop, J.
• Judgment Date: 31 May 1968
• Neutral Citation: LC 1968 HC 13
• Court: High Court (Saint Lucia)
• Docket Number: No. 38 of 1967
• Date: 31 May 1968

West Indies Associated States Supreme Court. (High Court)

Bishop, J.

No. 38 of 1967

Clarke

and

Baptiste

Appearances:

Kenneth Foster, Jean Raynold for the plaintiff.

V.A. Cooper for the defendants.

Practice and procedure - Declaration — Parties — The defendants brought an application under Articles 170 and 171 of the Civil Code of Procedure alleging that persons named in the declaration and the deed of sale to the plaintiff had voluntarily disposed of their interests in the property and so, for the purposes of this property they no longer existed because the plaintiff had stepped into their place. It was found that the plaintiff was a Co-proprietor with the defendants as a result of his purchase from the persons name in the deed of sale whose names it was sought to join. On the question whether all the Co-heirs ought to be parties despite the disposal of their interests to the present owners

Held: The persons whom the application sought to join ought not to be made parties. Their presence before the court was not necessary so as to effectively complete adjudication. Application refused.

Bishop, J.

1 On the last occasion when we were occupied with this case, by agreement between counsel, I entertained an application to join certain persons as defendants in the suit.

2 The application was based on the provisions of Article 170 and 171 of the Code of Civil Procedure of this territory; and, in the course of the address by counsel for the applicant, he referred to the history of applications of this nature and he relied largely upon the fact that the plaintiff's declaration and the exhibit which was produced in support of the declaration referred to the names of those persons whom he sought to join.

3 In opposing the application counsel for the plaintiff, urged “that the application had no legal basis” and that “it must have legal substance”. He contended (i) the persons named in the declaration and in the exhibit which was a deed of sale to the plaintiff had “voluntarily disposed of their interests in the property and that for the purposes of this particular property they no longer existed” because the plaintiff had stepped as it were into their shoes; (ii) if the application were allowed then this would amount to circumventing the earlier ruling which was given on Article 652 of the Civil Code.

4 At this stage, I will say I do not agree with that contention. I do not think that the point of law on which I ruled (under Article 652) would be circumvented. That point, so far as I noted it, dealt mainly with the position in an action for return to the succession, and in my view, it would not necessarily be circumvented by granting an application which seeks to join parties, if the interests of justice merited a granting of the application or if the facts brought it within the provisions of Article 171 of the Code of Civil Procedure.

5 It has not been disputed, either by the pleadings or otherwise, that the plaintiff is co-proprietor or co-owner with the defendants as a result of his purchasing from the persons named in the deed of sale; that is the persons whom it is now sought to join.

6 After counsel on both sides had addressed on the application I indicated that in my mind there was the question whether or not in this action for partition all the co-heirs as distinct from the present co-owners ought to be parties despite the disposal of their interests.

7 Counsel for the plaintiff expressed the view that this was not the law of St. Lucia, whereas counsel for the defendants felt that it was necessarily so under the law of St. Lucia otherwise Article 653 of the Civil Code would be meaningless. l have been able since then, to take a closer look at the Civil Code and the Code of Civil Procedure of St. Lucia so far as they apply to actions for partition; and I have also looked at the 1879 Code of Civil Procedure of Lower Canada by Foran. In order to explain the decision at which I have arrived to think it is perhaps helpful for me to refer to the former as well as the...