Joseph Charles Anne Charles Appellants v Mary Ambroise Preston Ambroise Franklyn Ambroise Respondents [ECSC]
| Jurisdiction | St Lucia |
| Judge | BISHOP, J.A. |
| Judgment Date | 06 May 1985 |
| Judgment citation (vLex) | [1985] ECSC J0506-1 |
| Court | Court of Appeal (Saint Lucia) |
| Docket Number | CIVIL APPEAL NO. 2 of 1984 |
| Date | 06 May 1985 |
IN THE COURT OF APPEAL
The Honourable Mr. Justice Robotham—Chief Justice
The Honourable Mr. Justice Bishop
The Honourable Mr. Justice Williams (Acting)
CIVIL APPEAL NO. 2 of 1984
Mr. V. Cooper for Appellants
Mr. H. Deterville for Respondents
On the 22nd February, 1984, in a written judgment delivered in the High Court, the learned trial Judge made the following orders:—
"Judgment for defendants on the counterclaim. Positive declaration granted to the defendant Mary Ambroise and her co-owners that she and her co-owners are owners of the land described in the second schedule of the defendant's counterclaim.
An injunction is also hereby granted to the defendant Mary Ambroise and her co-owners restraining the plaintiffs Joseph Charles and Anne Charles, their servants, or agents or assigns from entering or using the land described in the schedule of the counterclaim.
Damages to Mary Ambroise in the sum of $200.00 for her loss of two coconut trees.
Costs to the defendants to be taxed."
The counterclaim therein mentioned was filed in the second of two actions brought by Joseph Charles and Anne Charles, in 1976, against Mary Ambroise, Preston Ambroise and Franklyn Ambroise, who sought, in their counterclaim a declaration that the plaintiffs are not the ownersof the portion of land described thus: "commencing at a point marked by an iron peg forming the North Western point of the lands described in the First Schedule hereto thence along a line bearing 62°00' distance 60 feet along a line bearing 128° 00' distance 110 feet thence along a line bearing 44° 15' distance 210 feet to a point on the Moulin-a-Vent (Monchy) Road thence along the said road in a south westerly direction to a point along the western boundary of the lands described in the First Schedule hereto thence along a line bearing 17° 00' to the point of commencement". Now the description of land in the First Schedule read in part as follows "all that piece or parcel of land comprising three carres of the "Providence" Estate lands in the Quarter of Gros Islet ……and bounded on the north by Ravine Castagnet, south and east by the remainder of the said lands and west by lands formerly owned by Heirs Gervais Richelme, the whole as shown on Plan of Survey by Adrien Monplaisir, Land surveyor, dated 18th March 1929 and registered on the 15th April 1929 as Plan No. 3/1929".
The plaintiffs appealed against the decision of the trial Judge and asked this Court to find that the judgment was wrong and ought to be set aside, and more particularly that Joseph Charles and Anne Charles "did prescribe the use of the subject lands by the Deed of 1943".
Not all the grounds of appeal were argued, and those which were argued were not dealt with as presented in the notice of appeal. Therefore I shall not quote the grounds now but shall refer to them later.
On the 24th June 1918, Widow Louis Hippolyte Joyotte (Marie Luce Pamphile) made a declaration which was registered on the 5th July 1918 in Volume 72a No. 39079. Among other things, she declared that the late Louis Hippolyte Jojotte to whom she was married, died on 3rd October 1899, intestate; further, that at the date of his death he was owner in possession of a portion of the Moulin-a-Vent Estate in the Quarter of Gros Islet, of area about 13 carres, and which formerly belongedto Christopher Jean. The declaration also showed that Louis Hippolyte Jojotte left no relations within the heritable degree and so the said property became vested in her, as surviving consort; and she claimed that land. The boundaries of the land were stated in the Declaration which remained a valid and unchallenged Deed.
In a Deed of Sale recorded in Volume 86b No. 52594 on the 23rd March 1943, Marie Luce Jojotte born Pamphile (Widow Louis Hippolyte Jojotte] sold to Eugenia Jean born Faissal (widow Gilbert Jean), for 40.0.0 cash, on the 19th March, 1943, a portion of land comprising about 31/2 carres "being the remainder of a large portion of 15 carres of the Moulin-a-Vent Estate" in Gros Islet. The boundaries were set out in the said Deed Sale which remained an unimpugned Deed.
Also in the year 1943, as shown by a Deed of Sale registered on the 1st April 1943, in Volume 86B No. 52614, Eugenia Jean (born Faissal) widow of the late Gilbert Jean sold to Joseph Charles, and Anne Charles alias Julienie (nee Jean) wife common as to property of the said Joseph Charles, a portion of land comprising one carre to be dismembered from a larger portion of 31/4 carres dismembered of the Moulin-a-Vent Estate in Gros Islet. The boundaries were described, but for the purposes of this case, it is necessary to recall only the southern boundary which was stated as "the remainder of the said vendor's lands". Part of these lands were later purchased by the same person.
Deed of Sale dated 19th June 1965 and registered on the 23rd June 1965 in Volume 105 No. 79923 showed that Eugenia Jean born Faissal, (widow of Gilbert Jean) sold to Joseph Charles and Anne Charles (born text, for $600.00 a portion of land comprising 11/4 carres more or less, to be dismembered from a larger portion which was itself a dismemberment of the Moulin-a-Vent Estate in Gros Islet. The deed described the boundaries but only the northern and southern boundaries are important to this case. The former was stated as "a portion of one carre already sold by the vendors to the purchasers" and the latter boundary was was stated as "the Moulin-a-Vent Road". Thus the area was contiguous with the lands bought in 1943 and it was the southern boundary which became an issue in this matter.
Consequent upon their ownership of these two portions of land, Joseph Charles and his wife Anne brought two actions. The earlier one, brought in July 1974, was brought against Mary Ambroise only. The second one, brought in December 1976, was brought against her and her sons Preston Ambroise and Franklyn Ambroise.
Suit 203 of 1974 indicated in clear language that the claim by Joseph Charles and his wife was "for recognition of a right of way". It therefore seemed axiomatic that Joseph and Anne Charles were concluding that the portion of land over which the right of way was claimed, did not belong to them, but belonged to Mary Ambroise or someone else. There would be no need for such a claim as was made if the land belonged to the plaintiffs.
There seemed to be some confusion in the case as conducted on behalf of the plaintiffs and to explain why I say so, it is necessary to refer to the assertions that were made, in each of the actions which were consolidated by order of a Judge in Chambers.
The facts pleaded in support of the claim for recognition of a right of way were, that at all material times, Joseph Charles and his wife were inpossession of two contiguous portions of land which abutted lands alleged to be the property of Mary Ambroise; further, that they and their predecessors in title to the said lands, for a period in excess of 30 years, enjoyed as of right and without interruption, a night of way across a ravine from a point of entry on the Moulin-a-Vent Road (known as the Monchy Road)where the ravine passed closest to the said road. The right of way was for passing and repassing ON FOOT at all times and for all purposes. Joseph and Anne Charles also assorted that they themselves continued in exercise of their right from March 1943
until about March 1974 when Joseph Charles bought a van for use in his business. In that year the passage of the van to and from their land, blocked by a fence erected by Mary Ambroise at the entrance of the path leading from the road to his land. Then the claim (203 of 1974) reads:—
"As a consequence the plaintiffs have been denied the right of passing and repassing to their lands across the ravine ON FOOT AND WITH THEIR VAN thus suffering damage."
The assertion was there made, for the first time, and by implication that they had a right to pass and repass WITH THEIR VAN for 30 years. There was no assertion of the plaintiffs driving a van or other motor vehicle, for the period of 30 years from 1943, over the ravine in order to reach their lands; and it must be recalled that in March 1943 the plaintiffs had purchased 1 carre of land which was separated from the ravine by lands of Eugenia Jean (from whom they had purchased the carre). The later purchase of 11/2 carres was made in 1965, and it was the south boundary of that land which was stated in the deed of sale as the Moulin a-Vent Road.
In their first action against Mary Ambroise, the plaintiffs also Sought an injunction to restrain her from erecting any barrier which would deny them their right to use the point of entry to their lands.
In their action filed in December 1976, against Mary Ambroise and her two sons Preston and Franklyn, the plaintiffs claimed special and general damages. They asserted their ownership of the contiguous portions of land and that Mary Ambroise purported to be owner in possession of lands adjoining the southern boundary of their lands. Then, after alleging that they and their predecessors in title enjoyed a right of way across a ravine for a period in excess of 30 years and that they themselves continued in the exercise of their right of way from March 1943 to March 1974 (as was claimed in the earlier action), Joseph and Ann Charles alleged facts which followed upon his purchase of a van. They alleged that during the raining season they encountered difficulty crossing the ravine in the van, at the point of entry which they used previously; so they built a concrete bridge over the ravine at that point. Then, according to the pleading, not long after doing so,Mary Ambroise and/or her servants and agents caused a...
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