JULIA Mc DOWELL et al v MARY MONTOUTE

:::; i ../V\.~....u. ..... ~ ,- ~ ~ r-":- ( ,." --' ~ v "":';"Y' ~ ~ ';.-f . ~ SAINT LUCIA IN THE HIGH COURT OF JUSTICE '- (CIVIL) A.D. 1996 Suit No. 902 of 1996 BETWEEN: r ~ 1 . JULIA Me DOWELL 2. LEA EDRIS Me DOWELL 3. EMILE Me DOWELL 4 . EMILY Me DOWELL 5 • JULIE Me DOWELL Plaintiffs ~ and MARY MONTOUTE Defendant .t:. Miss M. A. Valmont for Plaintiffs Mr . L. Theophillus for Defendant 1996: December 27 and 19. JUDGMENT --..... MATTHEW J. ~ By a writ of summons indorsed with statement of claim and filed on c Oc tober 4, 1996 the Plaintiffs are claiming among other things that c they have an interest in land which is registered as Block 1454 B S. Parcel 485 and are asking that the register be rectified. '" ( On November 6, 1996 the Plaintiffs filed a summons asking for an application for injunction to restrain the Defendant from carrying ou t any survey on the land or any f UTt-. her dealinss until the hearing of the action. I n support of the summons was a rather terse affidavit in which Jul ia Mathurin stated that she was reliably i nformed that the Defendant is about to subdivide the land and to sell lots. Plaintiffs appended several exhibits to their affidavit. One such exhibit is a donation by Charles McDowell to Defendant ed October 5, 1972 of the donor's undivided one half a ion of land originally 18 carres but subsequent reduced to 6 carres. Another exhibit of interest is a Court ed March I, 1982 by which 12.384 acres of land was allotted to tne donor and donee mentioned above and a similar amount of 12.384 acres was lott:ed to Cynthia Hodge, Epiphane Hodge and Agres F. Hodge. Something should be said of the background to this case. Rose Judith McDowell who died on February 24, 1952 to have the owner of 18 carres of land in the Quarter of Gros Islet ch because of certain dismemberments had been reduced to 6 carres by the time her death. Rose had four children namely:

1.Josephine McDowell who died in 1951;

2.Charles McDowell who died in 1987;

3.Suzanna Hodge who died in 1971; and Mayrod McDowell who moved to Venezuela 1950 and not been heard of since. She had no children and is presumed dead. Josephine had a daughter called Anastasie McDowell who died in 1991 the five Plaintiffs are her children. Defendant is the daughter of Charles McDowell. substance of the Plaintiffs' claim is that Charleb ~cDowell a donation of all the land which formed part of the testamentary disposition of Rose Judith McDowell to the Defendant leged to be Charles' daughter to the exclusion of the Plaintiffs. Now the Court order referred to above does not at all relate to the aintiffs and the order does not even describe the land. aintiffs however alleged that the land referred to the that which formed part of the testamentary dispos Rose th McDowell and in paragraph 12 the statement of claim lege that the Court erred in awarding the land to McDGwell and M~ry Montoute and should have awarded it to McDcwell on behalf the of Rose Judith McDowell. I seems from paragraph 13 of the statement claim that land awarded by the Court subsequently became regist in the names es McDowell and Mary Montoute and the PI iffs cl was incorrectly done. Learned Counsel for the aintiffs submitted that the ion injunction is to restrain the Defendant from sell more the land until the Court is able to ermine t the Plaintiffs, Learned Counsel for the Defendant submitted ication should not be entertained because the iffs do not a prima facie case. Counsel submitted s Court cannot exercise jurisdiction over an order of a Court similar sdiction. Counsel submitted that if the aintiffs were ssatisfied th order of the Court made on March 31, 1982 t d to the Court of Appeal but by virtue of Rule 14 the Court Appeal Rules it is now too late to do so. Counsel submitted that the aintiffs are barred after 14 years from instituting the cause of action. Counsel also referred to Article 842 of the Code of Civil Procedure which states in part: "but no injunction shall be granted unless the Plaintiff gives an undertaking or security to the satisfaction of t Court or Judge for the payment of damages which may be caused by the issuing of the writ." Counsel submitted that no such undertaking had been given. Counsel also referred to the AMERICAN CYANAMID case and stated that burden of proving that damages would not be an adequate remedy was on the Plaintiffs and they had not scharged the burden. Counsel also submitted that in 1984 various procedures or ems were put in place in Saint Lucia to permit parties wi rests land to raise those aims and there was no evidence t the Plaintiffs had taken the opportunities to do so. Counsel invited the Court to apply Order 18 Rule 19 to s out claim of the Plair.tiffs. Counsel ted that land is stered in the Defendant's name although he had no document to tantiate that. Learned Counsel for the Plaintiffs had no response to the rather impressive submissions made by learned Counsel the Defendant. Plaintiffs seem to have an arguable claim to the right they assert. They are saying they are heirs of Rose Judith McDowell just as Charles McDowell and they should have shared in balance ot her estate. though the suit is formulated as though the Court made an error ir claim is essentially against Charles McDowell and his donee, Mary Montoute. They are saying that whatever share the Court order gave to Charles McDowell, he ought to have held it for himself and themselves. So they are not in effect challenging the order the Court. Article 842 of the Code of Civil Procedure appears to be mandatory but as I have said before the proceedings under Art 841 et for a writ of injunction by petition a substantive to differentiated from an interlocutory injunct the Rules of the Supreme Court which application The proceedings under Order 29 so r~quire an as to damages but it is not in such mandatory terms. 29/1 20 of the United Kingdom Supreme Court Practice 1979 that an undertaking as to damages ought to be given interlocutory injunction. If the Plaintiffs have a triable act and an to the land it cannot be right that I allow land to even though the Plaintiffs have not satisfied me not be an adequate remedy. I think ! should allow the Plaintiffs to the and to prevent the action becoming an exercise in ility in the event that the Defendant has sold all the land by the time of trial, I shall exercise my discretion and t sought. My order is that upon the Plaintiffs giving ~ proper undertaking signed by them and/or their solicitor and filed this Court within fifteen days I grant the order unction restraining Defendant until the final determination this action or until further order from selling, leasing or having any dealings with the land which is the subject matter of this suit. There shall be no order as to costs.

A. N. J. MATTHEW

High Court Judge

Suit No. 902 of 1996 MATTHEW J. Delivered: 19/12/96