Glasgow v Charles
| Jurisdiction | St Lucia |
| Judge | Bishop, J. |
| Judgment Date | 03 June 1965 |
| Neutral Citation | LC 1965 HC 10 |
| Court | High Court (Saint Lucia) |
| Date | 03 June 1965 |
| Docket Number | No. 5 of 1963 |
Supreme Court of the Windward and Leeward Islands. High Court
Bishop, J (Ag.)
No. 5 of 1963
Kenneth A. H. Foster for the plaintiff
Maurice Mc. Clean Mason for the defendant.
Real property - Ownership
Facts: The plaintiff sought a declaration that the land in dispute belonged to him. The plaintiff alleged that the defendant unlawfully entered on his lands, refused to accept his title, challenged his ownership and occupied a portion of the land by cultivating it. The court accepted the evidence given by the plaintiff and his witnesses.
Held: The plaintiff purchased the land in dispute and was the sole owner. Judgment given for the plaintiff. Order made that the defendant refrain from entering upon or in any way interfering with the land in question.
Durant Glasgow, a civil servant, living at Rock Hall, Castries, in this Island, through his solicitor, though not filing a written application for the issue of a Writ of Summons nevertheless, filed a Declaration on the 31 st of January 1963, in which he stated that from about the month of August 1962, he was one of the owners in lawful possession of a portion of land of The Sequian Estate situated on the North East side of a public road at Forestiere in the Quarter of Castries in this Island. He alleged also that around the same time he commenced clearance of the said lands for the preparation of a banana cultivation; and on or about the month of October 1962, Dantes Charles, a labourer of Forestiere, Quarter of Castries (hereinafter called the defendant) “unlawfully entered on the said lands, challenged the plaintiff's ownership, refused to accept the plaintiff's title and occupied four portions of the land by planting yams and bananas”. The plaintiff claims a Declaration that he is “the owner of the aforesaid portion of land”. He seeks also a removal order of the defendant's gardens and general damages for trespass.
In accordance with the provisions of Article 93 of the Code of Civil Procedure of St. Lucia, 1957, the solicitor for the plaintiff filed a list of exhibits comprising a copy of a deed of sale by Enoch Jnr. Pierre et al to George Durant G. Glasgow, the plaintiff, and a copy of plan of survey No. 384.
On 2 nd February 1963, appearance was entered for the defendant and service thereof accepted by the plaintiff's solicitor.
On 8 th February 1963, Defence and Counterclaim was filed. In this, the defendant admitted, “that the plaintiff purchased an undivided interest in the Sequian Estate situated at Forestiere in the Quarter of Castries”. He also stated in this Defence and Counterclaim at paragraph 2, “The defendant admits that the plaintiff has indulged in indiscriminate destruction of lumber trees growing on the said land”. Paragraph 3 of the Defence and Counterclaim reads as follows:
“The defendant denies paragraph (3) of the plaintiff's declaration and states: –
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(a) That his (the defendant's) mother Maximina Charles on of the co-owners of the said La Sequian Estate placed him (the defendant) in occupation of certain portions of the said estate which he (the defendant) has occupied and cultivated for over fifteen years.
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(b) That planted on this land by the defendant are bananas and other vegetable crops.
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(c) That in felling trees on and clearing parts of the said La Sequian Estate the plaintiff — “wrongfully” – destroyed banana trees planted by and belonging to the defendant valued at six hundred dollars ($600.00)”.
The defendant has, therefore, asked that the Claim of the plaintiff be dismissed and Claims “$600.00 damages as per paragraph 3 (c) above”.
The plaintiff's solicitor accepted service of the Defence and Counterclaim.
On 26 th March 1963, the plaintiff's solicitor filed a Reply and Defence to Counterclaim in which he joined issue and gave notice that he would object to the Counterclaim as being bad in law and as disclosing no cause of action on the grounds:
“(1) That the Counterclaim and Defence are improperly pleaded whereby the plaintiff has been embarrassed and confused on the issues”.
“(2) “That the defendant failed to disclose a cause of action not having stipulated that the bananas destroyed (which the plaintiff denies) were effected by acts unauthorised and unlawful”.
The Reply and Defence to Counterclaim stated also at paragraph 3: “With reference to each and every paragraph of the Defence and Counterclaim, in so far as it/they purport to allege trespass the plaintiff denies each and every such allegation as alleged, or at al”. As a result, the plaintiff prayed that the Counterclaim be dismissed with costs.
Service of the plaintiff's Reply and Defence to Counterclaim was accepted by the defendant's solicitor.
At this point I wish to make a few observations, with the intention and in the hope that they will be found to be helpful. The observations concern the pleadings, which have been filed in this case.
Let me first consider the declaration. It is my view that in paragraph 1 thereof the plaintiff could have stated more precisely the time in august 1962, when he alleged that he acquired possession and he should also have set out more clearly the area of land in question.
In paragraph 3 the plaintiff should have stated:
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(a) what he meant by the phrase “challenged his ownership”; in other words he should have stated those particulars or facts — whether acts or words of the defendant — and the times when they occurred, which in his view amounted to a challenge of ownership; what did the defendant say or do to indicate a challenge of the plaintiff's ownership?
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(b) What he meant by the phrase “refused to accept the plaintiff's title.” What are the material facts, which amount to a refusal to accept title?
Therefore in his Declaration the plaintiff should not have stated conclusions or inferences, which he is asking the Court to form or make without stating the facts on which he relied for the conclusions or inferences. What acts or words of the defendant amount to a challenge of ownership and to refusal to accept plaintiff's title? Again, the accusation of “refusal to accept title” as it stood seemed to me to be particularly vague.
Now, what has the plaintiff claimed in his declaration? The plaintiff has asked for “a Declaration that the plaintiff is the owner of the aforesaid portion of land. Is this Court in a position to make a Declaration that the plaintiff is owner of the area of land when the plaintiff himself stated he was and still is one of the owners? Would not such an order by the court be a contradiction of the initial statement of the plaintiff in his Declaration? How can the plaintiff be owner? Surely the most that plaintiff can claim is an Order declaring him to be a co-owner or one of the owners of the area of land mentioned.
Plaintiff has also asked for a removal order of the defendant's gardens. Again, this Court feels constrained to ask whether it is today still in a position to order the removal of the gardens. When improvements have been made by a possessor the right of the owner depends on the nature of the improvements and the good or bad faith of the possessor.
But here Article 113 of the Code of Civil Procedure of St. Lucia 1957 must be invoked; this states: “Defects in the writ or service, and informalities in the Declaration, are waived by the appearance of the defendant and his failure to take advantage of them within the delays prescribed”.
What of the Defence and Counterclaim?
Paragraph 2 of this reads: “The defendant admits that the plaintiff has indulged in indiscriminate destruction of lumber trees growing on the said land”.
These words “indulged in indiscriminate destruction” seem to me to be unnecessary, annoying, and unjustifiably antagonistic. The plaintiff did not state in his Declaration that he “indulged in indiscriminate destruction of lumber trees”. How then can the defendant admit this? Why does defendant elect to use words, which are merely expressions of his opinion of the actions of the plaintiff? Pleadings must state material facts; and, there may be an admission of facts. Indeed a party ought by his pleadings to indicate clearly those allegations, which he admits, and those, which he denies. It is my view then, that it would have been far better if the defendant had admitted the facts, by using words similar to those contained in the Declaration, and which would have indicated that the defendant in this case admitted that the plaintiff commenced clearance of the lands. The pleading plaintiff pleaded that he began clearance and it is this if I understand the pleading of the Defence — that the defendant admitted. However, if the defendant is alleging indiscriminate destruction of lumber trees, this is not what the plaintiff stated, and so the defendant ought to have pleaded the facts which he claimed amounted to indiscriminate destruction i.e. the deeds or misdeeds of the this effect, and not plead an admission in such terms.
Again, the Defence and Counterclaim, at paragraph 3 states inter alia: “The defendant denies paragraph (3) of the plaintiff's Declaration…”
It is my opinion that every allegation of fact should be specifically denied. There are several allegations contained in paragraph 3 of the Declaration and defendant ought preferably to deny each of the allegations specifically – that is, if he denies them all. General denial is not good enough.
As I indicated earlier these are only observations on the pleadings and they are intended to be of assistance so that the function of pleadings as I understand them may be achieved. The other side must be able to know for certain what evidence to be prepared to lead, and what is the real point in dispute; and in the words of' Article 147 of the Code of Civil Procedure of St. Lucia 1957, they must “enable...
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