Crick v Finesterre
| Jurisdiction | St Lucia |
| Judge | Bishop, J. |
| Judgment Date | 17 May 1965 |
| Neutral Citation | LC 1965 HC 2 |
| Docket Number | No. 71 of 1961 |
| Court | High Court (Saint Lucia) |
| Date | 17 May 1965 |
Windward and Leeward Islands Supreme Court. High Court
Bishop, J.
No. 71 of 1961
plaintiff unrepresented
Maurice M. Mason for the defendant
Contract - Specific performance — Plaintiff claimed specific performance of a contract for the purchase of property — The court was not satisfied that the defendant acting through his solicitor had sold the property in question — Application dismissed.
On the 29 th July 1961, Hugh Crick a mechanic of BiseÉ in the vicinity of the town of Castries, and hereinafter referred to as the plaintiff, filed — through his solicitor — a document headed and described as “Praecipe For Service”. This document, dated 28 th day of July 1961, was addressed “To the Registrar of the Supreme Court, Chambers, Castries”, and read as follows: “PLEASE serve a true copy of the attached Declaration on the Defendant herein”.
On the same date — 29 th July 1961 — a Declaration and Writ of Summons were file in the Registrar's Office.
Article 42 of the Code of Civil Procedure of Saint Lucia 1957 reads thus: “Every action before the Supreme Court is instituted by means of a writ of summons, in the name of the Sovereign; saving the exceptions contained in this Code, and other cases provided for by special laws”.
This article indicates that with some exceptions every action before the Supreme Court is instituted by means of a writ of summons.
Article 43 of the Code of Civil Procedure of Saint Lucia 1957 reads: “Writs of summons are issued by the Registrar upon the written application of the plaintiff”.
Therefore, it is laid down early in the law of St. Lucia, that the plaintiff must make a written application for the issue of a writ of summons.
However, in this action before the Court, the Registrar upon whom the duty to issue a writ rests, issued a writ of summons, notwithstanding the absence of a request or application in writing from or on behalf of the plaintiff to do so. By way of comment at this point, I venture to express the opinion that the document which was filed on 29 th July 1961 would have been more properly headed thus “Praecipe For Writ of Summons (and not “Praecipe For Service”) and ought to have been worded in the following or similar words: “Please issue writ of summons and a copy of the Declaration attached thereto on the defendant named therein”.
The Declaration at paragraph one stated “that on the 10 th December 1960 at Castries the plaintiff purchased from the defendant, acting through his solicitor, the immoveable property situate at No. 12 Chisel Street, Castries and within the First Judicial District of this Colony”.
I have understood this paragraph to mean that Mervin Finesterre the defendant was acting through his — the defendant's — solicitor and that as a result of the plaintiff dealing with the defendant's solicitor, the plaintiff purchased the property at No. 12 Chisel Street, Castries on the 10 th December 1960.
The plaintiff also alleged in the declaration that it was agreed that the total price for the said property at Chisel Street would be three thousand two hundred and forty dollars, and that as a result of this agreement and sale he paid to the defendant's solicitor, in the defendant's presence, the sum of five hundred dollars. Also, the plaintiff asserted that it was agreed that the balance of the purchase price — namely two thousand seven hundred and forty dollars-would be paid on the completion of a proper deed of conveyance duly signed and executed by the plaintiff and defendant.
By paragraph five of the Declaration, the plaintiff alleged, in substance that on divers occasions after the agreement was made he offered to pay the balance of the purchase price to the defendant and also to execute the deed of conveyance but that the defendant has refused and continues to refuse to accept the remainder of the agreed purchase price and also to execute the deed of conveyance.
The plaintiff has claimed:
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(1) “specific performance of the said transaction,
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(2) any order which to the Court may seem fit.
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(3) general damages, $1,000.00
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(4) The casts hereof”.
The plaintiff through his solicitors, filed on 29 th July 1961, a document described therein as LIST OF EXHIBITS, and which indicated as an exhibit, “one receipt dated 10 th December 1960, in favour of the plaintiff and signed Kenneth Momplaisir re 13 Chisel Street, Castries”
Article 93 of the Code of Civil Procedure of Saint Lucia 1957 reads as follows: “The plaintiff must, at the time that he returns the writ file in the Registrar's office the written proofs which he has alleged in support of his demand with a list of such exhibits”.
So then it is required by law that when the plaintiff returns the writ he must file in the Registrar's office two things — (1) a list of exhibits and (2) the exhibits or written proofs, which he has alleged in support of his demand. In his declaration the plaintiff alleged the existence of an agreement and further alleged “the express understanding” that the balance of the purchase price $2,740.00 would be paid up on completion of a proper deed of conveyance duly signed and executed by the plaintiff and the defendant”.
The list of exhibits as filed by the solicitor for the plaintiff indicated then that there was only one exhibit — a receipt. This therefore, was, presumably, the only written proof alleged in support of the plaintiff's demand; or alternatively, the plaintiff failed to comply with the requirements of the article if there were in existence written proofs of the agreement and “express understanding”. It must be conceded at this point that the plaintiff's declaration did not indicate unequivocally whether the agreement was written or oral, and whether the “express understanding” was an “understanding” expressed verbally or in writing.
On 10 th October 1961 appearance was entered for the defendant Mervin Finesterre, and on the 14 th October 1961 a defence was filed by his solicitor, service of which was accepted by the solicitor for the plaintiff. In his defence, the defendant denied “each and every material allegation in the plaintiff's declaration “and asked that the action be dismissed.
On 10 th December 1964 the case came before this Court for hearing, and on that occasion, counsel Mr. Foster informed the Court that it was the wish of the plaintiff that he — the plaintiff — be allowed to continue the conduct of his case in person and to dispense with any further service of counsel. Mr. Foster therefore sought permission of the court to withdraw as counsel from the case. The plaintiff, who was present at court, confirmed that this was indeed his desire. Consequently, an adjournment was granted to allow the necessary steps to be taken to put the record straight, and counsel was granted permission to withdraw from the case.
The case came on for hearing again on the 18 th January 1965 but as the plaintiff had not yet regularised the record a further adjournment was granted.
On 17 th May 1965 notwithstanding the fact that the writ of summons had not been properly returned and that no fees had been paid as required by the Rules of the Court, the hearing was commenced with the consent of counsel for defendant after the Court...
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