Daniel v Modeste et Al
| Jurisdiction | St Lucia |
| Judge | Bishop, J. |
| Judgment Date | 17 July 1967 |
| Neutral Citation | LC 1967 HC 6 |
| Court | High Court (Saint Lucia) |
| Date | 17 July 1967 |
| Docket Number | No. 64 of 1964 |
High Court
Bishop, J.
No. 64 of 1964
D. McNamara for the plaintiff.
J. Reynolds for first defendant.
I. D' Auvergne for second defendant.
Real property - Deed of sale — Deed based on Deed of Declaration which contained false information — Deeds declared void.
This is a direct action of improbation in which it is sought to have certain authentic writings impugned and set aside as false in their entirety.
Emelia Daniel has brought the action on behalf of the heirs of succession of Louise Victor deceased.
The writings called in question are a deed of declaration of succession made on 22nd April, 1961, before K. A. P. Monplaisir, Notary Royal, and registered on 2nd May, 1961, in Vol. 114A No. 71951, and a deed of sale made on the 22nd April, 1961, before K. A. P. Monplaisir, Notary Royal, and registered on 3rd May, 1961 in Vol. 100B No. 71956.
Joseph Modeste and Julian Gaillard are named as the defendants in this action. Neither of them entered appearance; neither of them pleaded and the then Acting Registrar issued a certificate of their non-appearance.
At the hearing, counsel appeared on behalf of each of the two defendants.
Article 282 of the Code of Civil Procedure of Saint Lucia states: –
“When the defendant fails to appear or to plead to the action, the plaintiff in suits other than those mentioned in article 85, may inscribe his ease for trial and hearing upon any day. If any oral evidence is necessary it is proceeded with before the Court, as in contested cases. When required by either party, the judge takes notes of the evidence as in other cases.
A defendant foreclosed from pleading is entitled to at least one day's notice before taking evidence; and he may cross-examine the witnesses, and make such objections as he thinks proper, but he is not entitled to produce witnesses.”
In my view this article entitles the defendant who has entered appearance but has not filed pleadings (so is foreclosed from pleading) to a day's notice before the evidence is taken, and it permits such a defendant to cross-examine witnesses and take certain objections.
The provisions of the article do not extend to the defendant who has not entered appearance and who has not pleaded.
During the hearing I ruled that the two defendants were “out of Court” and as no steps had been taken to get “into Court”, counsel who appeared on their behalf at the hearing would only be permitted to assist the Court on any aspects of law pertaining to the case.
Emelia Daniel, the plaintiff in the action, gave evidence and produced exhibits. Her evidence remained unchallenged and it is upon such evidence that the issue must be decided.
I am satisfied that Louise Victor died on the 11th December, 1941. She was the mother of seven lawful children of whom the plaintiff was one. At the date of her death these seven children were all of them alive. She died intestate, and on the 7th November, 1962 the Supreme Court of the Wind-ward Islands and Leeward Islands granted letters of administration to the plaintiff of all the succession of the deceased which by law devolved to and vested in the heirs and legal representatives.
At the time of her death, Louise Victor was the owner of a portion of land which she had acquired by virtue of the will of her brother George Corneille François Modeste who had died on 18th October, 1941.
On the 3rd November, 1960 a deed of declaration was made of the immoveables passing in the succession of the late Louise Victor (and her husband the...
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