Conrad James Josephine James Claimants v (1) Solange Jn Baptiste (2) Catherine Jn Baptiste (3) Livinus Fontenio (4) Paule Jn Baptiste (5) Lennie Augustin (6) Kensley Jn Baptiste Defendants [ECSC]
| Jurisdiction | St Lucia |
| Judge | Edwards, J. |
| Judgment Date | 28 November 2006 |
| Judgment citation (vLex) | [2006] ECSC J1128-5 |
| Court | High Court (Saint Lucia) |
| Docket Number | CLAIM NO. SLUHCV 2002/1169 |
| Date | 28 November 2006 |
IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CLAIM NO. SLUHCV 2002/1169
The parties to this trespass claim live in Jacmel in the Quarter of Anse La Raye, on steeply sloping land formerly owned by Geest Industries Ltd (GEEST).
The Claimants along with Mary Emmanuel are the registered owners of the land in Jacmel known as Parcel number 0641B-72 since the 27th August 1987. Mr. James who was also registered as co-owner of a contiguous Parcel number 0641B-73 with Margaret Ettoe since the 27th August 1987, has since the 3rd October 2000 been registered as sole owner. Mr and Mrs James occupy both parcels. They live on this land.
The Defendants are the children, grand children, and or great grand children of Mrs. Agnes Jn Baptiste. She is the registered owner of the land in Jacmel known as Parcel number 0641B-78 since the 3rd November 2000. Though Mrs. Baptiste no longer lives on this land, the Defendants live in 4 different houses on her land.
The northern boundary of Parcel number 0641B-72 belonging to Mr and Mrs James builts and bounds the land of Mrs Jn Baptiste to the south.
By a Fixed Date Claim filed on the 16th December 2002, Mr and Mrs James claimed possession of their said lands from the Defendants, and an Order for removal of the Defendants' house and pipelines from their property. They also claimed an injunction restraining the Defendants' from trespassing on their said property and/or interfering with them in the use of their land. They are seeking damages, damages for trespass, further on other relief, interest and costs.
Owners rights to the possession of their land is protected by the tort of trespass. Article 917A of the Civil Code Cap. 242 (St. Lucia) states that the Law of England for the time being relating to torts shall extend to St. Lucia.
The common law states that trespass to land consists in any unjustifiable intrusion by one person upon the land in possession of another. "… [E]very man's land is in the eye of the law enclosed and set apart from his neighbours; and that either by a visible and material fence, as one field is divided from another by a hedge; or by an ideal invisible boundary, existing only in the contemplation of law, as when one man's land adjoins to another's in the same field:" (Hegan v Carolan [1916] 2 IR R. 27 [1916] 2 IR R. 27).
Justification for intrusion upon the Claimant's land may be afforded the Defendant's either by the operation of law, or by the act of the Claimants, or their predecessor's in title, where the entry is made under a right of easement, or right of way, or under a licence, (Cope v Sharpe (No. 2) [1912] 1K.B. 496).
Where the right of way is created by express grant or by Act of Parliament, the extent of the right will depend upon the actual terms of the grant on Act as the case may be. Where a right of way is claimed by prescription; the general rule is that the extent of the right is to be gathered from the user: (Clerk & Lindsell on Torts 19th ed., para 19-38).
Article 2103A of the Civil Code states:
"Title to immovable property, or to any servitude or other right connected therewith, may be acquired by sole undisturbed possession for thirty years, if that possession is established to the satisfaction of the Supreme Court which may issue a declaration of title in regard to the property or right upon application in the manner prescribed by any statute or rules of court."
Rule 4 of the Supreme Court — Prescription By Thirty Years (Declaration of Title) Saint Lucia Rules No. 7 of 1979 state:
"An application for a declaration of title to immovable property, or to any servitude or other right connected therewith, under Article 2103A of the Civil Code shall be made by petition to the Court."
These Rules set out the procedural requirements that must be met before the Court can hear and adjudicate on the petition.
Mr. James testified that he lived on Parcel 0641B-73 with his grandfather from when he was 5 years old up until 1978 when his wife Mrs. James joined him and together they occupied the land. According to him, they were the first occupants of that area as no other persons occupied the surrounding area which was bush.
Though Mr. James did not testify as to when and how he came to own Parcel 0641B-72, Mrs. Agnes Jn Baptiste testified that a lady Ms. Agnes Lionel used to live there, and after she died her daughter was living there in a wooden house on the property. According to Mrs. Jn Baptiste, the daughter of Agnes Lionel borrowed money from Mr. James and could not repay him, so she had to leave the property for him. Thereafter, she testified, Mr. James took a surveyor and surveyed the land. All the witnesses testified that a dumb person presently lives on Parcel 0641B-72 in a wooden house.
Mr. James' evidence was that he had encouraged his friend and co-worker Whitney Raphael to purchase Parcel 0641B-78 from GEEST. He stated that he permitted Mr. Raphael to pass across his land between his 2 parcels to get to Mr. Raphael's property because it was closer to the road.
Mr. Raphael who was apparently also called Arthur, had a son Ferguson Jn Baptiste. Arthur Jn Baptiste married Mrs. Agnes Jn Baptiste. During the lifetime of Mr. Raphael, Mr. James allowed the members of Mr. Raphael's household also to pass across his 2 parcels of land in getting to and from Parcel 0441B-78. Upon Mr. Raphael's death, Mr. James allowed this previous arrangement with Mr. Raphael to continue as long as Mr. Raphael's household members remained on good terms with him. There is no evidence as to when Mr. Raphael died. Their usageof the boundary area right where 'Mr. James' 2 parcels butt and bound each other, in going to and from parcel 0441B-78, caused a foot track to be created on Mr. James' property.
There is a concrete step leading from the Jacmel Public Road up to the South Western boundary of the James' 2 parcels, where the foot track begins.
There is conflicting evidence as to how this concrete step came to be built. Mr. James' version is that it was built by him at his expense to access his property better, and Mr. Ferguson Jn Baptiste helped to do the work. However, Mrs. Agnes Jn Baptiste and the Defendants' testimony is that the steps were originally dirt steps, hewn out on the steep slope by her husband, they were subsequently converted into concrete steps with financial and or labour contributions jointly coming from Mr. Jn Baptiste, his family members Mr. James, and other persons who were also using the foot track on Mr. James property to get to and from their land.
The Surveyor's Report of Mr. Ornan Monplaisir dated the 6th December 2004, as commissioned by the Court. It discloses that Mrs. Jn Baptiste's land is bounded by a Road Reserve in the North. There is also another Road Reserve bounding the 2 parcels of land owned by Mr and Mrs James to the South.
The owners of the lands surrounding the properties of Mrs. Jn Baptiste and the James' are Egbert Albert, Geest, and Mathias Hollancide.
Mr. James described the Road Reserve to the North of Mrs. Jn Baptiste's land as an access road that you can walk physically on, which leads to Jacmel Catholic Church. He denied that this Access Road was overgrown with bushes and trees. He agreed that the Road Reserve above the steps is not in existence as it is overgrown with all sorts of prickles and grass.
The Defendants' testimony and the evidence of Mrs. Jn Baptiste, were substantiated by the Surveyor Mr. Monplaisir. He testified that these 2 Road Reserves were never established as such. He said that the vegetation and the terrain and slope of the land are indicative that no roads were ever established there, though they are on the plan of the area. He testified that the Road Reserve above the concrete steps has an access further to the West about 500 yards from the Junction on the West Coast Road leading to the Catholic Church. He was not aware that there was an extension road leading to the Catholic Church from the Northern Road Reserve.
Mrs. Jn Baptiste testified that her husband Arthur Jn Baptiste and herself, lived at Jacmel for 40 years and that Arthur worked at GEEST Industries. She said that Agnes Lionel lived on the parcel of land below her, and to get to her land from the Jacmel main road, the Geest watchman had shown them exactly where to pass to get access to their land. The access pointed out by the watchman was bush and prickles. Mrs. Jn Baptiste testified that her husband and children then cut the Access Road to get to their property, and they used the track to the Eastern side of Agnes Lionel's land to get to their land. This footpath is about 1 foot wide.
Mr. James refuted this testimony. He said that Mrs. Jn Baptiste and Arthur came to live on their parcel of land in 1979, and they previously lived at Glorouge.
The Defendant Paule Jn Baptiste is the son of Mrs. Agnes Jn Baptiste. He testified that when his father bought the land he was 5 years old, and he is now 42 years old. He said he has lived on the land for about 32 years, and that it was the Geest watchman who showed them where to pass and they cut the path.
The Defendant Ms. Catherine Jn Baptiste is the daughter of Mrs. Agnes Jn Baptiste. Her inconsistent evidence was that she was brought by her parents to live on the land in question when she was 9 years old and she is now 37 years old.She witnessed her parents clear the path to have access to their land from the Jacmel Road, she said.
Mr. James testified further that from about February 2000, without any...
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