Dennis Louisy qua Administrator of the Estate of the late Adelina Louisy as appears by Probate No.51 of 2000 Appellant v [1] Dolphius Doxay [2] Lias Coffin [3] Lennards Mc Farlane [4] Baby Pinnel [5] Inez Mc Farlane [6] Fafa Coffin [7] Claudia Mc Farlane [8] Claudius Mc Farlane [9] Merita Coffin [10] Iris Mc Farlane [11] Oliver Mc Farlane [12] Arnold Amos [13] Joseph (alias Andess) Mc Farlane [14] Albert Blanchard Respondents [ECSC]
| Jurisdiction | St Lucia |
| Judge | GORDON, J.A.,Justice of Appeal,Michael Gordon, QC,Denys Barrow, SC,Hugh A. Rawlins |
| Judgment Date | 08 May 2006 |
| Judgment citation (vLex) | [2006] ECSC J0508-5 |
| Court | Court of Appeal (Saint Lucia) |
| Docket Number | CIVIL APPEAL NO.27 OF 2005 |
| Date | 08 May 2006 |
IN THE COURT OF APPEAL
The Hon. Mr. Michael Gordon, QC Justice of Appeal
The Hon. Mr. Denys Barrow, SC Justice of Appeal
The Hon. Mr. Hugh A. Rawlins Justice of Appeal
CIVIL APPEAL NO.27 OF 2005
Mr. Peter Foster with Ms. Renee St. Rose for the Appellant
Mr. Dexter Theodore for the Respondents
In June 1991 the appellant, or rather Adelina Louisy whose estate the present appellant administers, (both the present appellant and the original plaintiff will be hereafter referred to collectively as "the appellant") filed a writ of summons claiming, inter alia, possession of part of a parcel of land, the total area of which was some 12 acres which was part of the Duchon estate in the Quarter of Micoud. The allegation was that the defendants, the respondents in this appeal, occupied some 4 acres of the 12 acre portion. The portion occupied by the respondent will hereafter be referred to as the occupied portion. In September 1991 the appellant obtained judgment by default of defence. In October 1991 Mathew J set aside the judgment in default and gave leave to the respondents to file a defence and counter-claim. The appellant was granted leave to appeal the decision of Mathew J. Without any explanation, is available to this Court or the Court below the appeal was allowed by consent in January 1992.
In September 1995 the appellant filed a Summons supported by an affidavit for leave to issue a writ of possession to the occupied property pursuant to Order 66 Rule 3 of the 1970 Rules of the Supreme Court (RSC). The summons was served on all of the respondents. However, prior to that latter summons the appellant caused letters to be sent to 10 of the respondents offering to sell to them the property they occupied.
The Summons first came on for hearing on January 17, 1996 and was adjourned to June of that year with costs to the appellant.
In March 1996 the Government published in the St. Lucia Gazette a Notice of Intended Acquisition under the Compulsory Acquisition Ordinance in respect of all of the appellant's lands, that is the 12 acres referred to at paragraph 1 above. Between March 1996 and April 1997 there seems to have been considerable communication between the appellant and the Government of St. Lucia on the subject of the acquisition of the occupied portion. In 1997 there was a general election in St. Lucia and the Government changed. From that time there seems tohave been no further interest by the Government in the acquisition of the occupied portion.
In February 1998 a Summons was filed on behalf of the appellant seeking an injunction restraining respondents 5, 10 and 11 from entering on the appellant's lands. An injunction was granted in May 1998 to restrain the respondents from interfering with any survey of lands comprised in Land Register Certificate Block 1625B Parcel 33 "save and except that area shown on exhibit JA 3 and marked off by iron pegs on the ground separating the houses of the defendants from the rest of the land."
A study of the February 1998 Summons and the Affidavits associated therewith would indicate that the appellant hired a surveyor to dismember a portion of land from the 12 acre piece in her ownership. The dismemberment would appear to be that portion of land on which there were a number of houses or structures presumably occupied by the respondents1.
In January 1999 a Summons was filed by the appellant for an injunction to restrain all of the respondents from constructing or continuing to construct buildings or from planting or cultivating or continuing to cultivate the lands of the appellant. The requested injunction was granted initially on February 19, 1999 with a return date of March 5, 1999. The Summons for the injunction came on for hearing on April 23, 1999, September 22, 1999, February 23, 2000, April 12, 2000 and July 26, 2000. On each occasion the injunction granted on February 19, 1999 was continued in force until further order of the court.
On April 14, 2000 a Notice of Hearing of the application for leave to issue a Writ of Possession filed on September 4, 1995 was filed advising that a hearing would take place on July 26, 2000. On that day it would appear that the court only
continued the injunction rather than considered the application for leave to issue the Writ of Possession.Another Notice of Hearing of the application of September 4, 1995 was filed on August 11, 2000 setting February 15, 2001 as the date for hearing. In fact the matter came on for hearing on April 11, 2001, at which time the court made an Order that Mr. T. Theobalds "is to value the individual portions of land which the defendants occupy. Improvements made to be taken into account." Mr. Theobalds filed his valuation on November 20, 2001. On November 13, 2001 the respondents applied to have the Application for leave to issue a Writ of Possession restored to the hearing list.
The application for leave to issue a Writ of Possession was finally heard on May 31, 2005 and judgment given on June 10, 2005. At paragraph 21 of his judgment the learned trial judge said the following:
"Taking account of the delay, the reasons for it, the relative prejudice and the other relevant factor I mention, I am of the clear view that the Claimant has not satisfied the burden of demonstrating that justice requires that he should be allowed to enforce this judgment. Indeed, I think it would be quite unjust to allow him to do so. I therefore refuse the Claimant's application for permission to enforce the judgment obtained in 1991."
The appellant being dissatisfied with that judgment has filed this appeal.
In the course of his judgment the trial judge recalled that he had "ordered that if the claimant [appellant] wished to enforce the judgment he would have to make an application under CPR 46.22 for permission to issue a writ of execution notwithstanding the lapse of six years since the judgment and file suitable evidence…"3 That order was dated May 28, 2003. It is completely unclear to me why the appellant needed to file another application under Part 46.2 of CPR while there was on file a live application made under Order 66 of the Rules of the Supreme Court, albeit that application was made in 1995. Further, though this is
more of academic interest, I do not believe that CPR Part 73 (Transition provisions) would have the effect of allowing someone in the position of the appellant to file under Part 46.In my view which application the learned trial judge heard was of vital importance as establishing the contextual environment in which his discretion had to be exercised. I am further of...
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