FLORA OCTAVE v FRANCIS SULAL

SAINT LUCIA IN THE HIGH COURT OF JUSTICE (CIVIL) A.D. 1996 SU1~ NO. 246 OF 1996 BETWEEN: FLORA OCTAVE Plaintiff and FRANCJ:S SULAL Defendant Mr. P. Husbands Q.C. for Plaintiff Mr . O. Larcher fo r Defendant 1996: July 1~, and 31 JUDGMENT MATTHEW ~i. (In Chambers) . On March 20, 1996 the Pl a intiff filed a writ of summons indorsed with statement of claim asking fo r the following relief: (a) damages for trespass; (b) an injunction restraining the Defendant from entering or remaining upon a portion of land marked ."e" i and (c ) costs. In his statement of claim the Plaintiff alleged that she is owner o f a portion of land marked "e" on a plan and agreement fo r partition and she referred in that context t o a deed of sale r egistered in Volume 86 , ~0. 51755 and an order of the Court made on January 18, 1995. The deed referred to i s dated September 28, 1936 and it records a s ale of 24 acres of land more or less of the "Jeannette Clare II l ands from Antoine Batou to Agnes Mangal and her six children, one o f whom is said to be the Plaintiff. order of the Court states that the plan of part ~on Cenac f licensed and surveyor, dated November 111 respect of a portion land at "Jeannette are", Marc, the Quarter of Castries be adopted. In evidence there is suc~ a plan of survey with s one such division or parcel is marked "e". Defendant entered appearance on May 9, 1996. On the same day of the issue the of summons PI f ied for an interlocutory unction against Def in respect of parcel "e". That summons was support an f iled on the said March 20, 1996. At paragraph 3 of that summons the Plaintiff alleged that she had erest property to Edward Barnard by a deed regist lOB No. 2571 and in paragraph 4 she ~ited: "That portion of land is now shown to be ion E on survey, the lot apportiolled to me marked 'e'." confess not being able to understand paragraph 4. context I ask when and where it is or was shown t of o be "E". In evidence there is a deed dated August 21, 1961 stered Volume 100 B No. 72571 recording a sale Octave to Edward Barnard of "all the vendor's s, title and interest being an undivided one seventh share and to cont portion f land consisting of twenty- four acres more or less the Jeannette Clare' lands." On May 10, 1996, the Plaintiff filed another affidavit purportedly in support of the application for injunction. s later affidavit, she says "I sold part of my interest the aid property to Edward Barnard by deed registered in Volume 100 B No. 7257l. " This affidavit is different to the first which is st 1 subs Two words, IIpart of ", are inserted in paragraph 3 later fidavit. The allegation is not true Deed No. 72571 not she sold part of her interest. In paragraph 4 of the later fidavit she l marked lie" is now registered as Block and parcel 1042 B 192. In evidence was tendered a land register document Francis Sulal, the Defendant, and his wife were iven absolute title to parcel no. 1042 B 192 14, 1987, t first registration. two affidavits the aintiff allege that Def occupying land which belongs to the aintiff. In her affidavits, the Plaintiff alleges by st Volume No. 114 No. 107850 Edward Barnard and Ada t sell to Francis Sul a port of undivided land. The legation is again untrue. I have seen the deed referred to and it is dated October 29, 1974. It records a sale by the Barnards of a lot land 4356 square feet, not a sale of undivided land. As the Plaintiff alleges in the next paragraph her aff t land sold was defined with boundaries, the Northern boundary being t h,p Marc :::~ \T~~ . So clearly paragraph 6 and 7 both of the affidavits of the Plaintiff are inconsistent. The Plaintiff says the land which the Defendant presently occupies is not the portion of land s0~d to him by Edward Barnard. :11 / In support of the application for injunction iff to suit 87 of 1987 in which she says was granted an unct against the Defendant in respect the said parcel of land "en and t~o Defendant has disregarded the order the Court. I h3ve not been shown a copy of order for what it is wor The Defendant filed and affidavit in answer on y 18, 1996. In that affidavit he stated that he bought a from Barnards on October 29, 1974 to be dismembered "Jeannette are tl lands. I have already said that quest no such thing. He said ter he purchased he It a house on that land. The Defendant seems to acknowledge that t were undivided when he bought but he says after the it vendor and another told him he was occupying what turns out to parcel "K" and his vendor who had bought s Plaintiff put him on litt fie" where he has had e tit since 1987 and where built a concrete structure t any interruption several ago. Learned Counsel for the aintiff submit that the Def was not occupying the property sold to him and is deed of sale dated October 29, 1974. Counsel does admit that no where in the deed does it say the Defendant bought undivided land. Counsel referred again to the subsisting unction Defendant restraining him from going on to the portion of land in question. Counsel submitted that whoever sold to the Defendant could not sell him a specific portion of land. Counsel referred to the following authorities:

1.Civil Appeal No.2 of 1975 Caesar v. Mart Lee June 14, 1976. 2 . Ulysses v. Estephane, Magisterial Civil Appeal 4 of 1975, June 14, 1976.

3.Clerk and Lindsell on Torts, Sevent ion, paragraph 17 - 23.

4.Halsbury's Laws of England, Four tion, 39, paragraph S2S. Learned Counsel for the Defendant submitted that at date hearing the Defendant has a document in the land stry h2S name since 1987. Counsel said that the Pl iff no tandi for she had sold 1 her interests in land to Edward Barnard who turn sold a portion to the De Counsel tted that Defendant was on "K" before was to move to e" Counsel referred to Section 23 the Land stration Act. Counsel also submitted that Defendant had bought faith fore any deed of correction. need to say something about the deed of correction and in pass to say that I am not bound by any decision of another of Court. May 12, 1991 there was a deed of correct whi sought to correct the deed of sale dated August 21, 1961 between Flora Octave Edward Barnard. The later deed sought to change the Schedule f the earlier one and to replace it with: "All the vendor's rights, title and inte:r.ec::r: hRing an undivided one sixth share in and to a portion land comprising sixteen acres of land dismembered from the 'Jeannette Clare' lands." I think I should set out the Schedule in the ier to see t impact. The earlier deed had the Schedule as lows: "All the vendor's rights, title and an undivided one seventh share in and to cont land consisting of twenty four acres ::lore or less 'Jeannette Clare' lands." At paragraph 3 of her initial affidavit iff s "I sold my interest in the said prope to Edward et al by deed registered in Volume 100 B No. 72571." s affidavit is still subsisting. That statement as I have observed is not a mere slip that can be corrected by an aff made several weeks later to indicate that she only d her interest. The said deed at Volume 100 B No. 72571 states sold all her rights, t Ie and interest. And even after thirty years later on May 12, 1991 when the laintiff sought to correct the earlier correct not say that it was part of her interest that she sold. So on the pleadings, I am not at all sure that the a iff has any interest to protect or that she has locus st in proceedings. Let me say something about this so called deed correct When the alleged corrected deed was first made on August 21, 1961 before ~h2 Notary Royal it stated that Flora Octave, the vendor and Edward Barnard, the purchaser, appeared before the said Notary. The document indicated that Flora Octave and Edward Barnard as well as the Notary Royal signed on the original. deed correction stc:.rts similarly Octave and Edward Barnard appeared before on 12, 1991. But the two persons who signed on were M. Octave who on the front of the document to same' ora Octave and the Notary. the face of the deed correction it appears never agreed to the change or the correct Can it really be contended tha~ after a vendor to a purchaser, thirty years later tIe vendor can deed of sale agreed upon by himself and document is suspect. I refuse to act upon It is a As I said before Barnard did not purport to to and the deed of sale states he 4356 which had a specif boundary. It appears that, and this has been conceded by Defendant, the location of the land would have "Kit on the part ion plan Earl Cenac. At paragraph 6 of his fidavit Sulal gives the c s as to he left parcel "K" and went to parcel "e". s allegation has not been challenged. is no later fidavit in this matter. The Defendant said went on fle" during the land registration and titling ect he the land and he was granted absolute title. That is in paragraph 14 s affidavit and that too has not been nor can it be Let me say something about the alleged injunction ordered against the Defendant in suit 87 of 1987. From the records no order was exhibited. What was exhibited was an amended writ summons. But this is of no moment. If there is in fact an order or unction in existence against the Defendant which he has disregarded is this a reason why on different issues I must grant an injunction? I would imagine if the Plaintiff is convinced that Defendant is in contempt of Court he would be advised as to next steps. But in my view, it would be wrong to append an order made in a different suit to proceedings in the suit to lend support to the later c~aim. I think I have referred to the summons for unction which was filed on March 20, 1996. one at words it appears that the Plaintiff is seeking protection one who has begun to enter or is threatening to enter land. But the facts reveal that the person sought to is not beginning to enter or threatening to enter the PI iff's Defendant has absolute title, the highest form of ownership under the law, in respect of the land as early as 14, 1987 and been there without disturbance until these the Plaintiff is ly asking for is a rmination as to t correct ownership of I "e II • I bel the ef a finding in favour of the Plaintiff on the ocutory ication would be virtually to decide the main issue on affidavit I think learned Counsel for the PI iff has introduced a consideration of Article 372 of the Civil Code which s with compensation. Surely, this is a matter that would have to be vindicated at a full hearing of the case. I have already commented on the deed of correction but even a~suming it were valid besides the mathemati~a} ~~l ation involved in finding the difference between one seventh of 24 and one sixth of sixteen I am not sure of the full ef ct of the correction in terms of boundaries. am not persuaded that the Plaintiff can show or has shown she has a real chance of success at the full hearing case. In my view the balance of convenience dictates that I to grant the application. therefore dismiss the interlocutory summon;:; wi costs of $300.00 to _he Defendant.

A.N.J. MATTHEW

Puisne Judge

Suit NO. 246 OF 1996 MATTHEW J Delivered: 31/07/96