Clarke v Baptiste et Al

• Jurisdiction: St Lucia
• Judge: Bishop, J.
• Judgment Date: 24 April 1968
• Neutral Citation: LC 1968 HC 9
• Court: High Court (Saint Lucia)
• Date: 24 April 1968
• Docket Number: No. 38 of 1967

West Indies Associated States Supreme Court. (High Court)

Bishop, J.

No. 38 of 1967

Clarke

and

Baptiste et al

Appearances:

Kenneth Foster, Jean Reynold for the plaintiff

V.A. Cooper for the defendants.

Real property - Co-ownership — Partition — The plaintiff alleged ownership in an undivided share in a property and sought an order for partition in the said property

Held: Section 748 of the Criminal Code of Procedure applied. The plaintiff was entitled to petition, since the parties could not agree upon the partition of their common property. Judgment given for the plaintiff since he instructed the action first.

Bishop, J.

1 The plaintiff in this case filed through his solicitors an action in which he has alleged ownership in an undivided share in property situate in the Quarter of Vieux-Fort, and he has asked in his declaration that the court order a partition in the said property, and make such other order as the court may deem fit.

2 As I understood it this is an action in partition of property brought by a co-proprietor or co-owner. The interpretation section of the Civil Code states “proprietor and owner are used as convertible terms and have the same meaning”. It has not been disputed' that the plaintiff owns along with the several defendants named in the Declaration an undivided share in the area of land mentioned having purchased in and there is a Deed of Sale (Exhibit A) which is registered. He purchased it from one of the co-heirs of the defendants. Article 748 of the Code of Civil Procedure states: “When co-heirs or co-proprietors cannot agree upon a partition of their common property, the action at law to obtain such partition belongs to the one who is first to institute it”. It is not disputed that the plaintiff and the defendant cannot agree on the partition of the property and in the light of this Article the action before me belongs to the plaintiff as he instituted it. By virtue of the provisions of Article 637 of the Civil Code the proceedings in this action for partition are the same as in ordinary suits except where the Code of Civil Procedure introduces any modification.

3 The defendants through their solicitor filed a defence to the action which is stated at paragraphs 1, 2 and 3 as follows:

• “1. The defence states that the property, the subject matter o family property.

• 2. That under Article 652 of the Civil Code they will contend that they should be allowed to reimburse the plaintiff the price of the...