Cox v Simon et Al

• Jurisdiction: St Lucia
• Judge: Bishop, J.
• Judgment Date: 21 December 1965
• Neutral Citation: LC 1965 HC 8
• Docket Number: No. 4 of 1963
• Court: High Court (Saint Lucia)
• Date: 21 December 1965

Supreme Court

Bishop, J.

No. 4 of 1963

Cox

and

Simon et al

Appearances:

Desmond A. McNamara for the plaintiff

Maurice M. Mason for the defendants.

Real property - Ownership — Plaintiff sought a declaration that he was the owner in possession of lands known as the Thomazo Estate — The court was satisfied that the plaintiff had a legitimate title to the land and ordered that damages totally $500.00 be paid to the plaintiff.

Bishop, J.

1 In January 1963 William Edward Cox — the plaintiff — then a proprietor of Castries filed -through his solicitor — a declaration in which he alleged that he “is the owner in possession of lands known as Thomazo Estate at Pillet and Thomazo in the Quarter of Dennery in the Island of St. Lucia which said lands are shown on the plan filed herewith and acquired by the plaintiff by: –

1

Last Will and Testament of Philipsia Marie Louise Cox (born Maurice) executed before G. H. Gordon and Colleague Notaries Royal on 2nd June 1931 duly admitted to Probate on 25th July 1932 and registered on 3rd August 1932 in Vol. 82a No. 47531. 2 Designation of the immoveable property passing in the Succession of the late Philipsia Cox executed before G. H. Gordon and Colleague Notaries Royal on 16th February 1933 registered in Vol. 82a No. 47792. 3 Declaration of the immoveable property passing in the Succession of the late Martha Cox registered in Vol. 88a No. 52129. 4 Deed of Sale by George Henry Cox and others executed before V. A. Cooper Notary Royal on 30th April 1951 in No. 58581.

2 The plaintiff alleged also that around the middle of September 1962 George Simon, Mahommed Leyakatalie and Orcinelle Charles, — the defendants — wrongfully and in an aggravating manner entered and crossed the plaintiff's said land by way of a path shown on the plan; and this they did in person and by their servants or their agents. Further, according to the allegation of the plaintiff, they have threatened and they intend to continue to repeat the wrongful entry into and crossing over the land.

3 The plaintiff has claimed:

• (i) a declaration that the defendants are not entitled to enter or cross his land or to cause or permit others to do so;

• (ii) an injunction restraining the defendants, their servants or agents from so doing; and

• (iii) three, hundred dollars damages from each defendant.

4 In their defence — filed by solicitors some six months later – the defendants admitted that the plaintiff is in possession of Thomazo Estate in the Quarter of Dennery in this Island.

5 The defendants also admitted that they entered upon and crossed over the plaintiff's land along the path shown on the plan. They denied that their action was wrongful or done in an aggravating manner. It is the allegation of the defendants that they are owners of lands adjoining the plaintiff's land at Thomazo and that these lands are enclosed on all sides by the Iands of the plaintiff and others. It is their contention that in order to get to and the public high-way they must pass either through the lands of the plaintiff or across the Grand Riviere du Mabouya, a river which they say is impassable during the rainy season. Further, the defendants allege that for over 30 years, their predecessors in title and they themselves have been using a footpath from the Grand Riviere Public High Road across the plaintiff's lands in order to get to their respective holdings.

6 In its final paragraph, the defence stated:

“6 The defendants state that they are entitled to a right of v across the plaintiff's lands and that their passage was in accordance with Article 486 — 491 of the Civil Code of Saint Lucia”.

7 It is my view that when pleading a defence it is not good enough to state words to the effect that the defence or the action taken by the defendants in accordance with Articles of the Civil Code of St. Lucia, and then to leave like that. It is not the duty of a Court to ascertain what the defence is by searching among the laws of a territory. It is the function of the solicitor to state what the facts are upon which the defendants rely as a defence. The solicitor's duty is to sate clearly and in unequivocal terms what the defence is to any claim. Indeed, as a general rule, a pleader should plead facts and not law. In this case then it is my view that the solicitor for the defendants should have set out in their defence such facts as are alleged would bring the matter within the law laid down in the Articles which he cited. Pleading law sometimes obscures the facts of the case; and the Court must be seized of the facts alleged on both sides so that the issues between the parties are made clear and narrowed down by the pleadings. This diminishes delay particularly in the time taken and the amount of evidence required to be given at the hearing.

8 In this case now before me, the plaintiff's solicitor did not file a reply and therefore it must be concluded that the plaintiff only wished to deny the allegations contained in the defence. No new facts were alleged and so those material facts alleged in the defence have been put in issue.

9 At the request of counsel for the parties the Court visited the locus and here, I wish to say that the Court is grateful to counsel for the suggestion and request to visit the lands involved in the claim. The visit proved of great, value in the evaluation of the testimony of the several persons.

10 William Edward Cox the plaintiff stated that it was in 1951 that he became full owner of Thomazo Estate in the Quarter of Dennery but that he lived on the estate from about the year 1919 to the year 1927. Then in about 1928 he again lived there and he did so until 1946. From the year 1946 he paid visits once or twice a week until the year 1960 from which time he has been at the estate daily (except Saturdays and Sundays when his stay was irregular and only when occasion made it necessary or desirable).

11 The plaintiff was emphatic in his testimony that between the years 1919 and 1962 (the month of September) he never saw anyone, including the three defendants, use the estate land in order to go from the lands now occupied by the defendants to the Grand Riviere High Road.

12 The plaintiff explained that in September 1962 he saw the defendant Simon on his — the plaintiff's -land. He had a conversation with the defendant about the latter's use of this tract which he (the plaintiff) had made, and which was the private property of the plaintiff. The plaintiff further stated that he erected a notice and barbed wire fencing but on two different occasions the notice was removed and the fence cut. Plaintiff described another encounter with this defendant Simon on the plaintiff's private road leading to a track created by the three defendants. As a result of the encounter a case was brought before the Court in 1963 and in the words of the plaintiff “after the hearing of the case, the defendant Simon stopped using that private road and path. I have seen him using the original track across the river. He has even erected a banana shed. I have never seen him up to today use my private road or path-neither he nor anyone of his family”.

13 It is clear from his testimony that the plaintiff is alleging that the defendant Simon from about September 1962 till sometime in 1963 used the plaintiff's private land as a path to go from the main high road to his – the defendants — home situated on lands adjoining the plaintiff's lands on its eastern boundary.

14 From the cross-examination of the plaintiff it would seem that the defence consists of three main aspects. Firstly, that there was a track existing on the plaintiff's land at some time before 1950 and that this track was widened by the plaintiff ; and secondly, that the plaintiff only recently prevented the defendant from enjoying the use of this “widened track” because there was a dispute between them which ended in the defendant impounding the plaintiff's cow, and so this was retaliatory action by the plaintiff; thirdly that the road which the defendants used and of which the plaintiff no, plains is the shortest road from the lands of the defendants to the main road.

15 What of the other defendants? Or their servants or agents?

16 The plaintiff alleged in his evidence that around September 1962 he saw the defendants using the same route, which Simon had used, and the plaintiff explained that he warned them that it was private property and they should not make use of that route. According to the plaintiff the defendants ignored the warning and continue to use the route regularly up to the 13 ^th May 1965 — the day before the hearing of evidence began.

17 The plaintiff explained that in 1950 he cut a private road on his estate. It remained a private road for his own use and convenience until April or May 1964 when it was acquired by the Government of St. Lucia. The plaintiff accepted that this road may now be used by the public but, he said this road excluded a track which the three defendants had created on his lands for their own convenience the plaintiff had also accepted that during the rainy season there were occasions when the river over which the defendants should pass to reach the main road, became impassable during which time persons living on the lands where the defendants lived would be unable to get from their lands to the main road unless they crossed over the lands of the plaintiff to the road now acquired by the Government. During the period that the river is passable then the route over the river is the shortest way to the main road from the lands of the defendants.

18 George Campous, a tractor operator gave evidence that it was he who cut and prepared a 12 foot road through the plaintiff's estate at the request of the plaintiff. He explained that he cut down fruit trees and other trees and at the time that he was preparing this road there was no path or track Ion the...