HEIRS LUCIENNE ZEPHERIN MATHIEU v THE CHIEF SURVEYOR et al

SAINT LUCIA IN THE HIGH COURT OF JUSTICE CIVIL SUIT NO. 741 OF 1999 BETWEEN: IN THE MATTER OF THE LAND SURVEYORS ACT, NO 13 OF 1984 HEIRS LUCIENNE ZEPHERIN MATHIEU Represented by: a) SUZANNA ISIDORE (nee Louis) Qua Administratrix of the succession of ROSABELLA LOUIS, DECEASED; and b) ATTORNEY for MARIE THOMAS and MARIA VILINA WILLIAMS ( nee THOMAS) Applicant and THE CHIEF SURVEYOR Respondent 1st and Respondent THE ATTORNEY-GENERAL 2nd and CHRISTOPHER GEORGE 3rd Respondent Appearances: named Respondents. rd Dr. W.E.Waldron-Ramsay for the Applicant. Ms. Cheryl Mathurin for the 1st and 2nd Mr. K enneth M onplaisir, Q.C., w ith him M r. D eale Le e f or t he 3 named Respondent --------------------------------------------------- 1999: December 15 2000: January 27 ------------------------------------------------------------- JUDGMENT

[1]HARIPRASHAD-CHARLES J. [Ag.]: By e x-parte Originating S ummons, t he Applicant applied under the Land Surveyor's Act, No 13 of 1984 for the following Orders: (a) That the Chief Surveyor pursuant to Section 3 (1) (c); Section 13 (3) and Section 31 (1) of the Land Surveyors' Act, No 13 of 1984 doth INVESTIGATE the Plan of Survey GI - 572, No 31/72 dated 3rd February 197 2, a pproved by t he S urvey O ffice on 2 5th February 1972, and purporting to identify Block 1253B, Parcels 128 and 129; on the ground that the said Plan of Survey GI - 572 is found to be inaccurate by reason of errors and omission and therefore mis-leading; (b) And that the Chief Surveyor pursuant to Section 3 (1) (e); Section 24 (1) (2) (3) (4); Section 25 (1) (2) (3); Section 26 (1) and (2) and Section 31 (1) of The Land Surveyors' Act No 13 of 1984 doth CANCEL the authentication of the said Plan of Survey GI - 572 No 31/72 on the ground that it is inaccurate by reason of errors, namely inter alia: (i) That t he s aid P lan of S urvey G I - 572 N o 31/ 72 is recorded at t he S urvey O ffice a s c onforming t o c ertain boundaries c ited i n t he D eclaration o f S uccession a nd Ownership, dated 31 October 1967 and registered on 20th November 1967 in Vol. 120 A No: 86553 at the Office of Deeds and Mortgages Castries; and which said Record of Survey, ei ther i ntentionally or negl igently do es n ot conform with the ownership of surrounding lands on t he ground as manifested on the Land Registry Map Extract, exhibited with the Affidavit herewith.

[2]Prior to the hearing of this Summons, the Court had to consider a Summons filed on 23rd day of November 1999 on behalf of Christopher George. The application prayed for an order to amend the Originating Summons in this action by adding the name of the said Christopher George as a Respondent. Learned Counsel for the Applicant, D r. W aldron-Ramsay c onsented t o t he ap plication an d as a consequence, Christopher George was added as the Third-named Respondent. The matter then proceeded inter partes.

[3]In this matter, there are three [3] principal issues to be determined: - (i) Whether the S ummons of t he F irst and S econd-named Respondents should be dismissed? (ii) Whether the Originating Summons of the Applicant is an abuse of the process of the Court? (iii) Whether the Applicant should be declared a vexatious litigant? (i) SUMMONS OF FIRST AND SECOND-NAMED RESPONDENTS {4] Learned Counsel for the Applicant vehemently challenged the Summons filed on behalf of the First and Second-named Respondents on the ground that it was not supported by a proper affidavit. According to him, it is trite law of practice and procedure that every Summons must be supported by an affidavit. He argued that the Court should disregard the affidavit sworn to by Allison Dupre as she has no locus standi before the Court. Learned Counsel urged the Court to dismiss the Summons.

[5]I do agree with Dr. Waldron-Ramsay that the Summons by the First and Second- named R espondent i s n ot s upported by a proper af fidavit. B ut d oes t his m ere procedural irregularity invalidate the proceedings?

[6]Order 2 R ules 1 and 2 of the Rules of the Supreme Court is instrumental in this regard. The purpose and application of this rule were given consideration by our Court of Appeal in the cases of Roopnarine Roopal v Clarice Hull et al [Civil Appeal No.9 of 1991] Saint Christopher & Nevis [unreported] and Camerhogne Investments Limited v The Demerara Mutual Life Assurance Society. In the former case, Sir Vincent Floissac, Chief Justice, having referred to t he decisions o f t he E nglish C ourt of A ppeal and having c onsidered t he Judgment o f Lord Templeman in t he P rivy C ouncil decision of Austin v Hart (1983) 2 All E.R. 341 said at page 5 of his judgment: "The b asic pr inciple w hich t he P rivy C ouncil s ought t o enunciate a nd apply is that a m ere procedural irregularity does not nullify or invalidate legal pr oceedings unless the pr ocedural i rregularity causes s ubstantial injustice. T his basic principle ( which w as es tablished af ter 1 964) w as expressed in these crucial words:- 'The m odern ap proach i s to t reat a n i rregularity as a nul lifying factor only if it causes substantial injustice. See: Marsh v Marsh (1945) 2 A.C. 271 at 284.' " At page 16 Byron J.A. [as he then was] gave this opinion: "Order 2 Rule 1 is designed to give relief to parties to proceedings who fail to comply with the requirements of the Rules of Court ….This Rule does not allow an appellate Court to validate a judicial error."

[7]In Camerhogne Investments Limited v The Demerara Mutual Life Assurance Society, [supra] Singh, J.A. delivering the Judgment of the Court at page 4 had this to say: "Giving Order 2 i ts purposive interpretation, I would say that its primary purpose w as c urative of p rocedural i rregularities a nd t hat i t s hould not have the guillotine effect where such irregularities could cause substantial injustice."

[8]Accordingly, I refuse the application sought by Dr. Waldron-Ramsay to dismiss the Summons of the First and Second-named Respondents. (ii) ABUSE OF THE PROCESS OF THE COURT

[9]Learned Crown Counsel, Ms. Cheryl Mathurin representing the First and Second- named R espondents s ubmitted i n l imine t hat t he O riginating S ummons of t he Applicant should be struck out as an abuse of the process of the Court. She based her submission on the following grounds: day of May 1990 in Civil Appeal No.20 of 1989, (i) That on the 28th the Court of Appeal dismissed an application by the Applicants in the present Summons for leave to appeal to the Privy Council on the grounds which include errors and/or negligence in documents including Plan GI 572. th day of May 1994 in Petition No. 360 of 1992, Justice (ii) That on 19 d'Auvergne di smissed an appl ication f or t he A pplicant i n the present Summons to cancel and declare null and void the Plan of Survey in dispute GI 572. th day of O ctober 1997 i n S uit No. 209 of 1972 t he (iii) That on 1 7 Applicant herein f iled a cross s ummons as R espondent t o proceedings for possession of land defined in Plan GI 572 was fraudulent. Justice Farara (Acting) ruled that the matter was res judicata.

[10]She also argued that this application sought to raise an i ssue which the Court, including the Court of Appeal had resolved on several previous occasions. She further stated that the Applicant is litigating the same issue which concerns the same parties and which was determined five times prior to this application in court.

[11]Her submissions were endorsed and fortified by Learned Queen's Counsel, Mr. Kenneth M onplaisir, C ounsel f or t he T hird-named R espondent, C hristopher George. E n p assant, I obs erve t hat L earned Q ueen's C ounsel has b een representing the Third-named Respondent ever since the multiplicity of suits and applications were instituted.

[12]Mr. M onplaisir quot ed ex tensively f rom t he j udgment of F arara J . [ ag.] i n Christopher George v Bernard Isidore [No. 209 of 1972] [unreported] (Exhibit AD 5) and in particular, pages 6 - 10 which summarized the pertinent aspects of the chronology of the land dispute between the parties. He also referred the Court to the Judgment of Moe J.A. in Suzanna Isidore v Christopher George [Civil Appeal No. 20 of 1989] [unreported] (exhibit A D 1). A ccording t o Learned Queen's Counsel, several applications before the High Court as well as the Court of Appeal were declared res judicata.

[13]Learned Queen's Counsel also submitted that the Survey Plan GI - 572 which the Applicant is seeking to have cancelled relates to lands to which the Third-named Respondent was already declared owner by the Judgment of Matthew J. in Suit day of December 1986.

No. 209 of 1972, delivered on 10th

[14]Mr. Monplaisir declared that the Applicant has come before the Court in every form and fashion to litigate the same issues affecting the same parties and which both the High Court and the Court of Appeal have fully and conclusively adjudicated upon.

[15]Learned C ounsel f or the Applicant, D r. W aldron-Ramsay ar gued that t he i ssue raised in the Originating Summons was never challenged in any of the matters litigated previously a nd i n accordance w ith S ection 1 3 ( 1) ( a) of t he Act, i t i s mandatory t hat t he C hief S urveyor investigate the matter once a party is aggrieved.

[16]He emphasized that the Survey Plan GI - 572 must be cancelled as it has two [2] major errors namely: (1) The P lan s hows S exius A imable or hi s h eirs ow ned lands t hat were contiguous to Parcels 128 and 129. A letter from the Chief th Surveyor t o M essrs. F oster, F oster & F oster d ated 2 8 day of January 1997 stated otherwise. th day of August 1920 and as a (2) That Fulgence Zepherin died on 30 consequence, could not have been present at the survey on 3 rd day of February 1972 as asserted on the record of Survey Plan GI - 572 by Ornan Monplaisir.

[17]Dr. Waldron-Ramsay iterated that the said Survey Plan GI - 572 is inaccurate by reason of error i n t he s urvey i n v iolation of S ection 26( 1) ( a) of t he Land Surveyor's Act. Learned Counsel f urther contended that a complaint dated 19 th day of November 1998 was lodged with the Chief Surveyor but this complaint was not entertained by the said Chief Surveyor on the grounds stated in his reply on 18th day of January 1999 to Learned Counsel.

[18]In the present matter, the parties to the Originating Summons are arguably the same as the parties to Suit No. 209 o f 1972; Civil Appeal No. 20 of 1989; Civil Appeal No.1 of 1991; Civil Appeal No. 3 of 1991; Petition No. 360 of 1992 and Civil Appeal No. 9 of 1994. The cause of action in all of these matters are basically the same and concerns the validity or otherwise of Survey Plan GI - 572. I would have thought that not only did the Applicant have every opportunity to raise the question of the validity of the said Survey Plan GI - 572 in the earlier proceedings but that she did in fact raise this issue at every conceivable opportunity.

[19]In my opinion, the institution of this matter is an abuse of the process of the Court and involves the principle of res judicata. This principle is appropriate when a right or cause of action or an issue had arisen or could or should have been raised in previous c ivil pr oceedings and t hat r ight or c ause of ac tion or i ssue w as determined o n i ts m erits by a f inal an d c onclusive j udgment of a court of competent jurisdiction. In such a case, the parties to the previous civil proceedings and t heir pr ivies ar e i nter se es topped p er r em j udicatum f rom r elitigating t hat same adjudicated cause of action or issue in subsequent civil proceedings unless there are special circumstances entitling one of the parties or privies to reopen that adjudicated right or cause of action or issue in the interest of justice..

[20]The principle of r es j udicata w as a uthoritatively s tated i n Henderson v Henderson (1843-1860) All ER 378. At pages 381 - 382, Vice Chancellor Wigram stated: " I believe I state the rule of the court correctly, when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of c ompetent j urisdiction, t he c ourt r equires t he p arties t o t hat litigation t o br ing forward t heir w hole c ase, a nd w ill not ( except u nder special circumstances ) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward only because they have, from negligence, inadvertence, or by accident, omitted p art of t heir c ase. T he pl ea of r es j udicata applies, except i n special c ases, n ot onl y t o poi nts upo n w hich t he c ourt w as ac tually required by the parties to form an opinion and pronounce a judgment, but to ev ery point w hich pr operly bel onged to t he s ubject of l itigation a nd which t he p arties, ex ercising r easonable di ligence, might hav e brought forward at the time."

[21]This pr inciple h as b een a ffirmed by t he J udicial Committee i n t he c ases of Hoystead v Commissioner of Taxation (1926) A.C.155; Kok Hoong v Leong Cheong Kweng Mines Ltd. (1964) A.C. 933; Yat Tung Investment Co. Ltd. v Dao Heng Bank Ltd. (1975) A.C. 581; and Brisbane City Council v Attorney- General for Queensland (1979) A.C. 411.

[22]In Hoystead v Commissioner of Taxation [supra], Lord Shaw (delivering the Judgment of the Privy Council) expressed the doctrine thus: "Parties are not permitted to begin fresh litigations because of new views they may entertain of t he law of t he case, or new versions which t hey present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents ot the weight of certain circumstances. If this were permitted litigation would have no end, except when legal ingenuity is exhausted."

[23]The principle of res judicata has been applied in a number of cases emanating from our jurisdiction. See: (1) Amos Richardson v Benjamin Richardson [Civil Appeal No. 4 of 1992] [Anguilla] [unreported]. (2) Donald Halstead v The Attorney-General et al [Civil Appeal No. 10 of 1993] [Antigua & Barbuda] [unreported]. (3) Frederick Ballantyne v Cash and Carry Limited [Civil Appeal No. 4 of 1993] [Saint Vincent & The Grenadines] [unreported]. (4) Etoile Commerciale SA v Owens Bank Ltd. [1992] 42 WIR 128.

[24]Applying this principle to the facts of the instant matter, there was nothing to have prevented the Applicant from litigating in one action all the rights of action and remedies which she claimed against the Respondents. Having listened attentively to C ounsel for t he A pplicant as well as C ounsel f or the R espondents, i t i s m y considered o pinion t hat t he A pplicant has already l itigated t he s ame i ssue i n several actions and she has had more than her day in Court. What seems clear is that the Applicant is bent on not accepting or respecting the decisions of the High Court or the Court of Appeal which have fully and conclusively disposed of this matter. The multiplicity of suits and applications are nothing short of an abuse of the process of the Court. And I so hold. [iii] WHETHER THE APPLICANT SHOULD BE DECLARED A VEXATIOUS LITIGANT?

[25]Learned Q ueen's C ounsel f or t he T hird-named R espondent, M r. K enneth Monplaisir, endorsed the application of the First and Second-named Respondents that t he Applicant b e d eclared a v exatious l itigant. Learned Q ueen's C ounsel referred to the cases of Lord Kinnaird v Field [1905] 2 Ch. 306 and Grepe v Loam [1887] 37 Ch.D.168 in support of his application. In the former case, the Defendant had m ade some twenty-nine applications with reference to pleadings, discovery and the like; he had moved to strike out the statement of claim on the grounds (1) that the words " Delivered the-------day of-------" appeared at the end instead of the beginning; (2) That the claim was printed with the margin of an inch and a half instead of two inches; and (30 the number of folios was printed at the top instead at the side. The Plaintiffs applied to put an end to what they alleged was a gross abuse of the process of the Court. Warrington J. stated: "What I propose to do is to make an order that the Defendant is not to be allowed without leave of the judge in chambers until further order to make any application in this action under the summons for directions, or to serve any notice of motion to discharge any order in chambers made on any such a pplication as a foresaid w ithout such l eave; a nd i n case he s hall without such leave serve notice of ant such application as aforesaid on the plaintiffs they are not to be required to attend."

[26]It appears to me from the authorities quoted that there is jurisdiction to make such an order as has been made by Warrington J. There is similar precedent in our jurisdiction: See: Phillip Doxilly v Attorney-General of Saint Lucia [No. 4 of 1987] [unreported]. This is really an ex ample of t he mode in which t he Court interferes to prevent abuse of its process.

[27]I cannot agree more that there has to be an end to litigation relative to this land dispute, in r espect of w hich t he A pplicant an d her f amily hav e been w holly unsuccessful. The importance of finality in litigation is one of the cornerstones of the due administration of justice.

[28]In the result, I order the following: (1) That the Originating Summons of the Applicant is struck out as an abuse of the process of the Court. (2) That t he A pplicant i s d eclared a v exatious l itigant a nd i s prohibited f rom i nstituting any f urther l egal pr oceedings w ithout leave of the Court. (3) That the Applicant pays Costs to the Third-named Respondent. Given the procedural irregularity [supra], I make no award as to Costs to the First and Second-named Respondents.

Indra Hariprashad-Charles

High Court Judge [ag.]

CIVIL SUIT NO. 741 OF 1999 Haripershad-Charles, J Delivered: 27/01/00