CORNEIL JN BAPTISTE v GONZAGUE RICHARD et al

SAINT LUCIA IN THE HIGH COURT OF JUSTICE CIVIL SUIT NO. 1042 OF 1998 BETWEEN: CORNEIL JN BAPTISTE Plaintiff and (1) GONZAGUE RICHARD (2) MARIE MADELEINE JOSEPH Defendants Appearances: Ms. V. Georgis Taylor for the Plaintiff. Ms Isabella O. Shillingford for the Defendants. --------------------------------------------------- 1999: November 15 2000: January 27 -------------------------------------------------------------- JUDGMENT

[1]HARIPRASHAD-CHARLES J. [Ag.]: On 2nd day of November 1998, the Plaintiff filed a Writ of Summons with Statement of Claim attached claiming damages from and an Injunction against the Defendants.

[2]Simultaneously, the Plaintiff made an ex parte application to the Court seeking an Injunction against No. 1 Defendant and three other Defendants who are no longer parties in this suit.

[3]On 20th day of November 1998, Mitchell J. [ag.] granted an ex parte injunction: - (a) restraining t he D efendants w hether by t hemselves, t heir s ervants o r agents or otherwise from: (i) Entering and remaining on the property of the Plaintiff located at Praslin i n t he Q uarter of Micoud and r egistered at t he Lan d Registry as Block 1631B Parcel 65. (ii) From building on the aforementioned property. (b) That t he D efendants be made t o r emove any dw elling or par t of t he dwelling house constructed on the property of the Plaintiff.

[4]On 27th day of October 1999, the Plaintiff filed a Summons to amend the Writ of Summons filed on 2nd day of November 1998 by deleting from the said Writ the second, third and fourth-named Defendants and adding as a second Defendant to the said Writ of Summons and S tatement of Claim t he name, Marie Madelene day of November 1999.

Joseph. This Order was granted on 2nd

[5]The Plaintiff now seeks an Order for an Injunction against the Defendants in the following terms: (a) Restraining t he D efendants w hether by t hemselves, t heir s ervants o r agents or otherwise from: (i) Entering and remaining on the property of the Plaintiff located at Praslin i n t he Q uarter of Micoud and r egistered at t he Lan d Registry as Block 1631 B Parcel 65. (ii) From building on the aforementioned property. (b) That the Defendants be made to remove any dwelling or part of a dwelling house constructed on the property of the Plaintiff. (c) That the Defendants whether by themselves, their servants or agents or otherwise be restrained from threatening, harassing or in any other way interfering with the Plaintiff.

[6]The evidence of the Plaintiff is that he is the registered owner of a parcel of land situated at Praslin, in the Quarter of Micoud and registered in the Land Registry as Block 1631 B Parcel 65. There was documentary evidence t o substantiate t his contention.

[7]The P laintiff f urther s ubmitted that, some f our years ago, t he D efendants have trespassed and c onstructed a w ooden dwelling house on hi s land. And despite repeated requests to break down the house, the Defendants have failed to do so. He further stated that while he was hospitalized, the Defendants, and in particular, the s econd-named D efendant c ommenced t he c onstruction of a w all dw elling house to the North and front of his property, where it bounds the road reserve. In other w ords, t he P laintiff alleges t hat the D efendants hav e t respassed o n hi s property.

[8]The Defendants, on the other hand are alleging ownership of the land. They based their claim on a Deed of Partition and Vesting Deed executed on 30th day of June 1981. I n a n utshell, t he Defendants ar e s aying t hat by v irtue of t he a fore- mentioned documents, Peter Joseph aka Pierre Joseph wrongly sold property that did not belong to him.

[9]An analysis of the evidence in this matter revealed that the Plaintiff is not only seeking an interlocutory I njunction b ut al so a m andatory I njunction t hat the Defendants be made to r emove any dw elling or par t of a dw elling ho use constructed on the property of the Plaintiff.

[10]It is premature for me to determine the mandatory relief sought as this can only be made on a determination of the case on its merits. I propose however to deal with the application for the interlocutory injunction, as indeed this was the only issue that Counsel for the Plaintiff alluded to. The purpose of an interlocutory injunction is to preserve the status quo until the rights of the parties have been determined in an action. The principles to be applied in applications for interlocutory injunctions have been authoritatively explained by L ord D iplock i n t he c ase o f American Cyanamid Co. v Ethicon Limited [1975] 1 All E. R. 504. A t pa ge 5 10, L ord Diplock had this to say: " The Court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried. It is not part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed arguments and mature considerations. These are questions to be dealt with at the trial…So unless the material available to the Court at the he aring of t he ap plication f or an i nterlocutory i njunction f ails t o disclose that the Plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory injunction relief that is sought."

[11]Learned Counsel for the Plaintiff substantiated her arguments for the grant of the interlocutory injunction by referring to the Land Registration Act of 1984. According to her, the Land Registration Act is the only legislation that determines ownership of pr operty w ith r egards t o r egistered l ands i n S aint Luc ia. I n s upport o f h er assertion, Counsel referred to the case of Bertillia Ennis v Phyllis Barras et al [Civil Suit No. 760 of 1995] [unreported] emanating f rom t his j urisdiction. At page 11 - 12 of his judgment, Mitchell J. [ag.] had this to say: " A deed of sale is today no more than a form of transfer, to be discarded by the Registrar pursuant to section 70 i n due course. S ince the Land Registration Project in Saint Lucia in the mid 1980's the only evidence of title is t he Land R egister. The c onsequence of t he above pr ovision at section 3 of the LRA is that deeds are no longer title documents in Saint Lucia. The deed is today a document of some significance only for the period of time that it takes to walk it around from the Notary's office to the Land Registry to register it. Once it has been used to effect registered title in the name of the purchaser, it is spent. At that point it is of historical value only, and may after an appropriate period of time be destroyed by the Registrar. No purchaser is required to go behind the register to check on t he c ontents or f orm o f t he deed t hat c aused s ome per son t o be registered as proprietor of a parcel."

[12]Ms. T aylor al so c ited t he case o f Racoon Limited v Harris Turnbull [Privy Council Appeal No. 33 of 1995]. Lord Jauncey of Tullichettle delivering the Judgment of the Court relying on Frazer v Walker [1967] A.C. 569 stated at page 5 of the Judgment: " A purchaser in good faith at auction whose title was thereafter registered was held ent itled to f ound on hi s r egistered t itle i n pr oceedings f or possession against the other joint proprietor."

[13]However, an analysis of this aspect of the law would in my view go into the merits of the case and thus should be avoided: see: American Cyanamid Co. v Ethicon Limited [supra] and Series 5 Software Ltd v Clarke and others [1996] 1 All E.R.853.

[14]Learned Counsel for the Defendants, Ms Isabella Shillingford maintained that the Defendants ar e t he r ightful ow ners of the l and a nd t hat Pierre J oseph h ad no registered title to the land. Ms. Shillingford further argued that the land was never surveyed and partitioned. Learned Counsel urged the Court to adopt the principles which the court should bear in mind when deciding to grant interlocutory relief and cited t he c ases of American Cyanamid Co. v Ethicon Limited [supra] and Series 5 Software Ltd v Clarke and others [supra] as good authorities.

[15]Returning to the instant case, it cannot be doubted that the affidavit evidence as well as the submissions of both Counsel shows that there are serious issues to be tried. The Plaintiff as well as the Defendants are claiming ownership of the land. I am not unmindful of the fact that the allegation suggest that the Plaintiff is the registered owner b ut t he Defendants ar e al so c ontending P ierre J oseph s old property that he did not own. To consider these matters at this stage would in my view go i nto the merits of the case, something which, relying on t he authorities cites [supra], I am admonished to avoid.

[16]Having de termined t hat t here i s a s erious i ssue t o be t ried, I n ow hav e t o determine where the balance of convenience lies. The most compelling argument advanced by Counsel for the Plaintiff, Ms Taylor is that, if it is proven that the Plaintiff has b een w ronged, dam ages w ould n ot be a s ufficient r emedy. In the words of Lord Diplock in the American Cyanamid case [ supra] " If damages would be adequate remedy and the Defendant would be in a financial position to pay t hem, n o i nterlocutory injunction s hould b e gr anted, how ever s trong t he plaintiff's claim appears to be at this stage."

[17]In al l t he c ircumstances, I f ind n o di fficulty i n c oncluding that t he b alance o f convenience dictates that the status quo ought to be maintained until the rights of all parties have been determined.

[18]The Order of Court therefore is that upon the Plaintiff giving an undertaking as to damages; an interlocutory injunction is granted: (a) Restraining t he D efendants w hether by t hemselves, t heir s ervants or agents or otherwise from: (i) Entering and remaining on the property of the Plaintiff located at Praslin i n t he Q uarter of Micoud and r egistered at t he Lan d Registry as Block 1631 B Parcel 65. (ii) Building on the aforementioned property. (iii) Threatening, h arassing or in any other w ay i nterfering w ith t he Plaintiff. (b) That the injunction is to remain in force pending the trial of the action. (c) That the matter is to be given a speedy hearing.

Indra Hariprashad-Charles

High Court Judge [ag.]

CIVIL SUIT NO. 1042 OF 1998 Haripershad-Charles, J (Ag.) Delivered: 27/01/00