JOAN CHEDDIE v GLORIA MARTYR

;:~ •. /' ":::., '-: r- ~-' ~ '1 .... v-~) SAINT LUCIA IN THE HIGH COURT OF JUSTICE (CIVIl) Suit No . 91 of 1993 Between: JOAN CHEDDIE Plaintiff vs GLORIA MARTYR Defendant Mrs . S. Lewis for Plaintif f Mr . M. Wi lson f or Defendant 1996: March December 10 January 1997: JUDGMENT d' Auvergne, J The Pl a int i ff has b r ough t this c l aim against the De fendant, stat ing that the De fendant has encroached upon , a nd is al s o preventing her from entering upon her l and registered in the Land Registry as Block and Parcel No. 1827C 58 1; and t hat she is claiming the following : (1 ) Possess i on of the occupied portion of land . (2) An order from the Court that the Defendant removes the structure and materials fLu,-,L the Plaintiff ' s land f orthwith . An order that the Defendant , he r ser vant s or age nts c e ase to interfere or hinder the Plaintiff , her servants o r agents from entering onto those l ands . Damages Cost s Defendant on the other hand denies every allegat the Plaintiff's claim save that the Plaintiff is the ste owner the mentioned piece land. On the 17th of March 1993 an unction was t Court in favour of the Plaintiff and the De was not to place any further stones or other builrting materi and ic ements unto the Plaintiff's land and that snOULC remove that were already there wit two days. At the trial the Plaintiff and Land Surveyor Jos evidence on behalf t aintiff whereas the De alone gave evidence for the de Plaintiff told the Court that she is a St. Lucian resi s London, England; that she is a pensioner who owns the known as 57 ladelphia Row Micoud which is st at t ster as referred to earlier and exhibited the ster property. She said that her father bought prope lIed it to her by his last will and testament and also it the probate of her father's last will and testament s e dated 12th February, 1922 recorded in t stry on 12 December, 1952. t is my view that the Schedule of this Deed of e its entirety since it forms the crux of t s matter and I e: "Schedule (Property adjudicated) Lot and building, Micoud llage All that lot of land situate at the corner of Philadelphia Street in the Village Micoud mea links along the said French Row which bounds it on t North, and ninety links along the said Philadelphia Street which bounds it on the West, bounded further on the East by t property of Jean Charles Benj amin and on the South by the property of Goodman Serieux, or howsoever else the same may be bounded. Together with a wooden house erected thereon 20 feet by 12 feet covered with shingles with all the appurtenances and dependencies thereof. Title: Deed of Sale by Bernard Philip to t De 15th September 1898 registered in Volume 57 No. 23139. said that she first kne~ t Defendant as a r to aunt, Theresa Cheddie, and of late as the owner of I next to her property. She said l~hat the Defendant has property since she knows the boundaries to r were to her by her father. She described t s t one owned by her and the De d Court that the former owners of the Defendant's aunt, Theresa Cheddie and her cousin I te Will sa I quote: "There was a between the two properties. It was a wooden It was our gate. Infact re were two es. We used ours and my aunt used " said that just before the death of her fat June 1959 home wi her two children and lived at the property till I 1965i that before leaving for England she 1 the ent property to Mr. Valmont at a monthly rent $500EC as a The upstairs was used as living quarters charge of the said lumber shop while bus ss was ed on downstairs and this arrangement continued until t passing of Hurricane Allen (on the 3rd to of t, 1980 ch severely damaged building. She returned to St. Lucia in 1983 and saw building next door had extended to her property. As a result she had a conversation Gildette Williams who she left in charge of her property and who was also co-owner of the house next door (which then extended to her property). She (Plaintiff) was dissatisfied with what Idette Williams told her, she had to return to t t Kingdom and therefore had no alternat but to low Idette lliams to continue acting as r agent. again returned to St. Lucia 1993 and t the Defendant had further encroached so that she d not pass between two properties. The 4 feet 6 inches walkway ch It and which led to the wooden st rcase to t s was no longer in stence and that there were many r alterations to her house and property. most signif ic ant was an ron peg front of the entrance to premises and the use of as a warehouse; that caused a letter to be written to t Defendant requesting the removal of mate s from aintiff'sl premises but to no

1.So, to seek an order unction (re to raga t Defendant. She further told the Court she t to settle the matter amicably, out of C~urt, but once more, s too, was va Under Cross Examination the Pl iff said t her r the boundaries to the property about the years 1949-195 that when she left St. Lucia in 1965 she left an old man, George in charge of the leased property had passage of Hurricane len. She said t was thereafter inted Gildette Williams as her agent. She said that she was unaware of a survey done by Vernon Augustin in 1975, though there was a boundary di tween endant and herself, hence the reason for boundary on her land register, which also shows t she absolute title to her property. Joseph Alexander, censed Land Surveyor said that as a re a Court order he surveyed the property of the Plaintiff. He said he perused the Deeds of all the adjoining ne of Plaintiff in particular that of the Defendant whose was ituated to the North of that of the Plaintiff. He out Schedule to the Defendant's Deed which reads as follows: "All that lot of land situate the llage of t swamp) in the said island of St. Lucia s two links (72) by fifty-three (53) depth and bounded on t Dy lot of Clarice ac douth by t Carteau, East by that of Madam Labello and West ct a Streec or howsoever otherwise the same may be bounded now Known as Philadelphia Row forme known as The Swamp. t th all the appurtenances and dependencies thereof, wooden building erected thereof." witness said that after the perusal of to the site to verify the measurements by ground measurements that he has produced plan dated 15th May, 1995 which t as an exhibit. He said that he surveyed 1827C ParcGl 580 ch longs to the Defendant and Parcel 581 which to t aintiff. He explained his plan to the Court and sa "On that plan there is a wooden building with a wall extension owned by Defendant, that there is so an st structure of a concrete building." He further expla that the Defendant "had two structures a wooden one th extension, then a gate and another structure being used as a kitchen and laundry room which is next to d wall structure I mentioned previously, from the old structure t is a window and a door which are both used by Gloria Martyr." He said he marked out the limit of occupation by the Defendant as A to B, where there is an iron peg which is situated in t middle the old wall building which can be easily identified. He said that he measured from B to A so Northern boundary, lands belonging to he Emmanuel Duncan 90 links. (It is to noted that the measurements as st the Defendant's Deed and so at stry is s witness mentioned a an given to De was taking measurements. is an M.746 done at Defendant but which the Pla iff knew I is significant to note that the "no II are tten on that plan. De not plan to the Land Adj Alexander conc s tnat 01an 746 be cancelled and a new Survey i to correct deed measurements for lands to surveyed Joan Defendant t Court res s at is owner Block and Parcel 1827C 580 situate ted her Deed of e an 6 1 as 5 ed 2nd February 1977. agreed that there was a dif amount st her Deed of Sale and an M.746 reason fference is because sor title a conversat th Mr. Vernon Augustin maker of an M. 46. ist the land bought by her was from a is as B plan submitted by Joseph Alexander to also said: IIthat gate was used by Miss Joan worked at the II (the was aintiff's building) ARGUMENTS Learned Counsel for the Defendant submitted that thlS was a Slmp~e case of whether the Defendant's predeceGsor title to Defendant what she in fact possessed. He said t De was a truth~'11 person who acted on what was to her Survey plan M.746 the maker of which seemed to act on Defendant's ~~edecessor title, resa Learned Counsel for the aintiff argued that resa e not have any extra 14 feet to give to the Defendant and t fore plan of Survey M.746 is wrong. She contended t t Defendant was fully aware of her encroachment on the PI iff's 1 Learned Counsel urged the Court to accept an as submitted by censed Land Surveyor Joseph CONCLUSION agree wi both Counsel that s is a s e case. It is trite law that one can only convey or sesses. The Deed of Sale by Gildette Wil~~ Theresa e to the Defendant conveys seventy-two (72) by fifty three h to the ~ Defendant (schedule noted earlier) and therefore is all land the Defendant possesses. I accept in its entirety the report and plan as ed Alexander cenced Surveyor ed 5th March 1996 fi in t strar's Office on 4th March, 1996 which states: " the lands claimed by the Defendant Gloria Martyr is in excess of lands that was purchased Deed of Sale dated 25th and 28th February, 1972 the reason being: (a) By virtue of Deed measurements of 72 links or 47.52 feet along Philadelphia Row, as compared to Survey measurements of 61.5 feet taken from Plan M.746. b) Information derived from the Land Registry Map sheet 1827C 58 and 581 shows measurements of 47.0 feet which is consistence with the Deed measurements. c) The measurements of survey Plan M. 746 compl s th t original Deed dated 25th February, 1922 by t ff to Felix Cheddie and not that of Deed 25th and 8 c..h February, 1972 by Gil te and sa e to Gl.orla Martyr. d) My recommendation is to cancel Plan M.746, because it s not represent the correct Deed measurements for Gloria A new Survey plan must then be establi that d the correct Deed measurements for a and the rema of lands to be surveyed for Joan e." My Order is therefore as follows: (1) That the PIa iff is the e owner of the of land occupied the Defendant is excess of what is stated in her Deed of Sale. (2) That the Defendant do forthwith remove the structure and materials on that said portion land. (3) That the Plaintiff is hereby granted a perpetual unction restraining the Defendant from ent or remaining on that said portion of land. Damages in the sum of $3,000.00 to be pa by the Defendant to t Plaintiff. Costs to be agreed or otherwise taxed. ~ '-'\'\ " , . "".

Suit No 91 of 1993 D’Auvergne, J Delivered: 22/01/97