Joseph Ulysses Appellant v Fanno Estephane Respondent [ECSC]

• Jurisdiction: St Lucia
• Judge: ST. BERNARD J.A
• Judgment Date: 14 June 1976
• Judgment citation (vLex): [1976] ECSC J0614-1
• Court: Court of Appeal (Saint Lucia)
• Date: 14 June 1976
• Docket Number: MAGISTERIAL CIVIL APPEAL NO. 4 of 1975

[1976] ECSC J0614-1

IN THE COURT OF APPEAL

Before:

The Honourable the Chief Justice

The Honourable Mr. Justice St. Bernard

The Honourable Mr. Justice Neville Peterkin

MAGISTERIAL CIVIL APPEAL NO. 4 of 1975

Between:

Joseph Ulysses

Appellant

and

Fanno Estephane

Respondent

Appearances:

Victor Lewis for Appellant

Jean Reynolds for Respondent

ST. BERNARD J.A

1 This is an appeal against the dismissal of a claim for damages for trespass to land on the ground that the appellant was a tenant in common of the land the subject matter of the trespass, the respondent having entered under the authority of another co-owner. Another reason for the dismissal was that a bona fide question of title arose.

2 In the declaration the appellant claimed as owner occupier of the land and alleged that the respondent entered and did damage by cutting animal fodder growing thereon. At the trial and before this Court it was admitted that the appellant was a tenant in common with others. The question of title therefore does not arise and the only question for determination is whether or not, in the circumstances of this case, the appellant can sue the respondent in trespass.

3 The appellant stated that he was born on the land and lived there up to the present time but it was only about six months ago that he was responsible for the entire land. In answer to a question by the court his counsel stated that his grand-father, the owner of the land, had recently died and the appellant had paid the death duties.

4 In respect of the trespass the appellant stated that he saw the respondent cutting grass in the pasture, had taken away wood already cut, and had planted a garden on the land.

5 The respondent's account was that he worked that portion of the land for the last eight years with the permission of one Luciana Cherie one of the co-owners. He paid her thirty dollars a year for so doing.

6 Counsel for the appellant submitted that one co-owner could maintain an action of trespass against the other if he committed acts which amounted to an ouster or if he changed t he nature of the land. He cited in support the case of Murray v. Hall (1849) 137 E.R. 175. Counsel further submitted that the rental of the land purported to grant a right to exclusive possession of a portion and entering thereupon for such a purpose would be committing a trespass.

7 Tenants in common have unity of possession and each tenant is as much entitled to possession of any part of the land as the others. Their occupation is undivided and neither party can point to any particular part of the land as his own to the exclusion of the others. It seems to follow therefore that one co-owner cannot rent a particular part of the land to the exclusory: of the others without their consent, but, he may, in my view, transfer his rights in the common property to another and the transferee stands in his shoes and may do all such things on the land as the co-owner is able to do. This issue was not raised in lower court but the facts are that the respondent was working the land as agricultural land for eight years and the appellant stated he had been on a portion of the land "all his life." It is not unreasonable to find that in the present case Luciana Cherie who placed the respondent on the...