Giraudy Estates Ltd v Clairmont et Al

• Jurisdiction: St Lucia
• Judge: Bishop, J.
• Judgment Date: 29 October 1970
• Neutral Citation: LC 1970 HC 14
• Docket Number: 34 of 1969
• Court: High Court (Saint Lucia)
• Date: 29 October 1970

High Court

Bishop, J.

34 of 1969

Giraudy Estates Ltd.

and

Clairmont et al

Appearances:

E.H. Giraudy for plaintiff.

V.A. Cooper for defendants.

Real property - Recovery of land

Bishop, J.

1 Giraudy Estates Ltd. is a company which was duly incorporated under the Commercial Code and which has its registered office situated in the town of Vieux-Fort in this State. This company, through its solicitors, brought an action against each of the following: Evesta Clairmont, a proprietor, Chester Samuel, Hepburn Prescott, Nelson Albie, Orman Sam, one Edison, Joseph James, Philomene Bastien, one Roodsie, Civil Etienne, Elijah Nelson and Gilbert Evelyn, all laborers, of Vieux-Fort. The company claimed special damages, and general damages for trespass to land, mesne profits and restoration of an area of land situate in Vieux-Fort.

2 The case against Hepburn Prescott was discontinued by the solicitors for the plaintiff company. A declaration to that effect was filed on the 24 ^th July 1969. As a result, the plaintiff company was obligated to pay the costs of this defendant up to the 24 ^th July 1969.

3 On the 18 ^th November 1969, counsel who appeared on behalf of the defendants stated at the Bar Table that the defendant referred to in the writ of summons as “one Roodsie” was dead. Now articles 315 et seq. of the Code of Civil Procedure are relevant to this position. Article 315 states:– “The solicitor who is aware of the death…of his party…is bound to notify the opposite party; and all proceedings had up to the day when such notice is given are valid'

4 Then, article 316 reads in part: “In cases which are not ready for judgment all proceedings had subsequently to notice given of the death…are void; and the suit is suspended until its continuance by those interested or until the latter have been called in to continue it.”

5 The succeeding articles (317 to 320) indicate who may continue a suit and the procedure for continuance. Then article 321 states: “In all cases whether the continuance is voluntary or ordered by the court it is effected by following up the last valid proceedings taken in the suit.”

6 Now, assuming that the statement made by counsel at the Bar Table was proper notice to the opposite party, then it would seem that so far as the defendant Roodsie was concerned no steps were taken to ensure continuance — voluntary or compulsory. In the circumstances the proceedings subsequent to the notice of deaths must be regarded as void.

7 The declaration which was filed by the plaintiff company's solicitors on the 19 ^th March 1969, was ordered to be amended in so far as it concerned the first-named defendant Evesta Clairmont; however, I must express agreement with counsel for the defendants that the amended declaration did not differ –materially – to any appreciable extent from the original declaration. While it is undisputed that no rigid form of pleading is necessary, nevertheless “the pleading must contain a concise statement of the material facts on which the party relies, in sufficient detail to enable the Court to ascertain, the issue or issues which it is required to determine (article 147 of the Code of Civil Procedure). For my part, I would have preferred – as has been so often done – the plaintiff company's solicitors to set out clearly in separate paragraphs the relationship of the plaintiff to the land, and the authority for such relationship; and then the allegations against the defendants in the order in which they were mentioned in the writ of summons. (precedent may be found at page 228 of Quebec Civil Forms by Weber). Be that as it may, the plaintiff company's solicitor filed an amended declaration on the 21 ^st January 1970, which again cited Hepburn Prescott as a defend which reads thus:

“The plaintiff states that the defendants Nos. 2 to 12 acting upon the authority of the first defendant Who Was At No Time Thereunder Authorized By The Plaintiff Or Anyone Lawfully Acting In The Plaintiff'S Behalf have since the dates hereunder stated occupied and continue to occupy without the authority or consent of the plaintiff or of anyone lawfully acting in the plaintiffs behalf the lands of the plaintiff at the Mangles in the town of Vieux-Fort in the State of Saint Lucia, whereby the plaintiff has suffered damage as per particulars hereunder.” (The words emphasised were the amendments).

8 In my opinion this was in the form of a narrative rather than of a pleading.

9 Particulars were then set out in respect of each of the defendants other than Evesta Clairmont. The particulars referred to periods of alleged occupation in respect of each of these defendants, and stated amounts based on a rental of three dollars per month making a grand total of eight hundred and thirty-seven dollars.

10 The discontinuance against Hepburn Prescott as I stated earlier was filed an 24 ^th July 1969. The amended declaration which re-instated him among the defendants was filed on the 21 ^st January 1970. Now article 328 of the Code of Civil Procedure states: “A plaintiff who has effected a discontinuance cannot begin again unless he previously pays the costs incurred by the opposite party upon the suit or proceeding discontinued either to the opposite party, or on his refusal to accept, into court.”

11 The defendant named as “one Roodsie” was also included again among the defendants in the amended declaration and on the 4 ^th March 1970 counsel for the plaintiff company led evidence against this deceased defendant.

12 In my view the plaintiff company was not entitled to begin the case against the defendant Hepburn Prescott again without first establishing that it had complied with the provisions of articles 328 of the Code of Civil Procedure. This it failed to do. Nor were the proceedings taken subsequent to the notice of death of “one Roodsie” valid for reasons I have already outlined.

13 I think is but fair to state here that on the 30 ^th April 1970, when Hepburn Prescott testified as a witness for the defence he made it clear that he knew that the case against him had been discontinued and he did not consider it as having been begun again. Nevertheless it is my view that the plaintiff company must pay the costs of the defendant Hepburn Prescott to date of discontinuance and I hereby order that these be taxed and paid.

14 The first named defendant filed a defence the relevant part of which stated thus: “The defendant No. 1 states as follows:

• 1. The defendant No. 1 denies that he is occupying or has ever occupied any lands belonging to the plaintiff or any one at all, or authorised anyone to occupy any lands belonging to the plaintiff.

• 2. That whatever land the defendant No. 1 is occupying or is in possession of at The Mangles in the Quarter of Vieux-Fort, is his absolute property, he having acquired same from Wilhemina Arcamo by Deed of Sale executed before A. F. Augustin Notary Royal, on 26 ^th April 1948, and registered on 20 ^th May 1948, in Vol. 88 No. 55879.

• 3. That although a Deed of Sale by the defendant No. 1 to Mae Joseph was executed on 26 ^th October 1956, before H.J. Francois Notary Royal and registered on 1 ^st November 1956 in Vol. 97 No. 64900 the defendant states that this transaction was to secure a loan of $3840 from Mae Joseph and was made in the form of a Deed of Sale to be re-conveyed to him on payment of the aforesaid sum of $3,840. The defendant No. 1 never relinquished possession as owner but remained in continuous, uninterrupted, peaceable, public possession as owner. The said loan was paid and the land was re-conveyed to the defendant No. 1 by Deed of Sale executed before H.J. Francois Notary Royal on 26 ^th October 1956, and registered on 1 ^st November 1956, in Volume 97 No. 64900.

• 4. That before purchasing the land described in the Deed referred to in paragraph 2 hereof, the defendant No. 1's predecessors in title namely Amaphine Godineau, Ephraim Poyotte and others have been in peaceful, public, uninterrupted, unequivocal continuous possession as owners for over fifty years under various written titles.

• 5. That the defendant No. 1 was himself the Agent for the collection of rents for his predecessors in title for over twenty years in respect of all the other defendants namely defendants 2 – 12 and in connection with the lands which he occupies at The Mangles.

• 6. The plaintiff himself has never been in possession of the Iands he purports to claim at The Mangles or any lands at The Mangles at all which the defendant No. 1 has been occupying and still occupies.”

15 The defence filed on behalf of the remaining defendants was: “The defendants Nos. 2, 4, 12 states as follows:

• 1. That they are tenants of defendant No. 1, and have been so for several years and that they have not occupied any land belonging to the plaintiff nor has the plaintiff ever claimed any payment from them.

• 2. That no land has been described in the Declaration sufficiently to enable defendants Nos. 2, 4 – 12 to know with certainty what land the plaintiff claims they occupy without his consent.”

16 In support of the declaration counsel for the plaintiff company led evidence from Ralph Giraudy, the managing director of the company, from Hughes Shillingford, a licensed land surveyor, and from Gerald Guard retired Commissioner of Lands and Survey and now a practising licensed land surveyor.

17 Ralph Giraudy said that the plaintiff company bought the land which is the subject matter of this action, in June 1958 from him. He produced a certified copy of the title deed of the plaintiff company in which there was reference to the area and the boundaries of the land. It is clear from the certified copy produced that there was a typographical error at the commencement wherein it is stated “These Presents made this fourteenth day of June one thousand nine hundred and sixty-eight…” It should have been “fifty-eight” instead of...