ANDREW JUSTIN et al v PHILOMEN JUSTIN

\ .. .,~ ........ } . IJ .. i V'\. ,!J .... #029 SAINT LUCIA IN THE HIGH COURT OF JUSTICE (CIVIL) . A.D. 1996 Suic No . 408 0 ~ 1996 BETWEEN:

1.ANDREW JUSTIN

2.CECILIA JUSTIN r I.... r::. CI Plaintiffs t and PHILOMEN JUSTIN ~ Defendant - .... < Mr. M. P . St. Catherine for Plainciffs Mr. P . Husbands Q.C. for Defendant t -; r 1996: July 10 and 17 ~ J U D G MEN T ~ ! MATTHE't'~ :: . ~ !n Chambers) . On May 21, 1996 the Plaintiffs filed a wri t of summons again s t the De fendant asking for possession o f land with a wooden house thereon a t Rose Hill, Castries, damages for trespass , a mandatory i njunction, a prohibitory injunction and costs. ~ r C On t he s ame day they took out a summons a s king for a prohibitory i njunction against the Defendant. The summons was supported by a r j oint affidavit o f the Plaintiffs. <: ~n that affidavit they alleged that cy a conveyance dated J anuar y 9, :981 made between Jul ius Williams and themselves a portion of l and wlch a wooden house on it situated at Rose Hill, Castries wa s J l conveyed to them . !'"' :'hey exhibited the de ed o f conveyance and a copy .~f' the l and ~ e gister which gave them absolute title t o the land as of Oct ober :7 , : 98 7. stated that in or about 1985 with ass Defendant the wooden house was renovated and the De sister of Andrew Austin, was permitt to 1 t rent free, as she was in need a place to res sl2i.ed that on or about November :;.995 t visited the property and noticed that the Defendant construct a ccnc:cete building over and around the wooden sald they obj ected and informed the Def she was ~respassing and that she d cease construction. st that the Defendant had not c but has cont he further construction of the and so t resorted to se proceedings. The Defendant entered an appearance on June 12, 1996 and fil an ffidavit in opposit on July 1, 1996. In aff t the Defendant s~ated that the house and land were sold to Plaintiffs en the understanding that the subsequently conveyed to her. said that she began renting from lliams s 961 and she was lowed to occupy it thout any rent on tion that she took care of the and t land t which belonged to Williams. s d the consideration of $8,000 t took count all she had done in rep a and maintaining the ",-,et. me interj ect that no where the is s all ion tated nor the fact that there was some underst to subsequently convey the property to the Defendant. She said it was never the intention of Williams to sell property to the Plaintiffs for themselves and support that submitted a document headed "TO WHOM IT MAY CONCERlJ". ThlS document was dated January 15, 1981 whi means it was after the execution of the deed of sale. t is not even in the :orm ".;= v"'- an 't. Defendant alleged that she repaired t house and it is not original condition t it was the aintiffs. The Defendant denied the ~act that she is construct a concrete Iding on the land. She said it is still her desire to re to the Pia iffs monies they have spent in obtaining the In paragraph 14 she spe of a al to her her Justin which is extraneous and irrelevant to t se proc In their submissions Counsel ref to the case f AMERICAN CYANAMID CO. v. ETHICON ,-,TD. -1. AER 4 and iples enunciated. fore to ly t iples the decision _ am about to at. Counsel for the Defendant in addi tion referred to the c: llowing: 1. Article 372 f the C 1 Code; '") L.. Halsbury's Laws r and, ?ourth tion, ume 24, paragraphs 853, 357 and 358.

3.WILLIAl'VJS v. C.Z\.c"JADIAN BANK OF COMMERCE ':'RUST rt""\ '.-'-" . 36 W. I.R. Ill.

4.GARDEN COTTAGE rOODS LTD. v. YIILK MARKETING BOARD 1983 2 AER 770 H.L. I shall ~efer to these authorit s only where is necess so to s applicatioD is real to prevent the Def from concrete structure on ~he 21 iffs' :and. t seems to me the ~hrust of the Defendant's claim is to her ontitlement to a tel house ch she may have renovat I believe her reliance Art le 372 of the C 1 Code is t s rega~d. 2utt t at ts highest if she succeeds maintaining that the is he can have it 2t the end of the day and carry it But t could never give her a to place a concrete structure over and. f as she states in p :0 and 12 of her affi t t t she s not building any concrete structure what is ner worrv? I believe she is worried because she is in fact a wall ructure over and chattel As I said earlier the 21 iffs' deed 9, :981 nothing about the qualification implied by the TO WHOM IT MAY CONCERN" purportedly from lliams. bit f made after the deed of s e can my ew never overr sions of the deed. And of what use would ownership of th title e in accordance with Section 23 of the ~and stration Act if t entitlement could be affected by documents of ful in or ffect. The aintiffs bouqht the property on January 9, :981 986, more than fifteen years after the sale the Def s still her desire to refund the Plaintiffs the es t _n obtaining the Assuming that her cla is f substance when will t be fulf led? n the year 2050? I refer to the United Kingdom Supreme Court Practice 1979, paragraphs 29/1/11 et seq. I am of the view that is on sues before me a serious question to be ted. It relates to the ownership and/or trespass to land. find ~oo in accordance with paragraph 29 1 5 of t same text that damages are not the proper remedv because the Pia iffs' 1 rh ~hcy hold by registered title may be affected a concrete s ructure Duilt by the Defendant. Learned Counsel for the Defendant submitted that s would be appropriate and ful compensatory. He sa compensation is ascertainable. I have said in previous decisions that the Court must not concerned with ascercainability of compensation but also th ility to pay. My authority for that has sed on a passage fOUlld in the said Supreme Court Pract 1979, It states paragraph 29/1/11A part- 11 In considering the balance of convenience co or to refuse the interlocutory unct the principle is whether the plaintiff would compensated by an award damages which the be in a financial posit to pay," I am happy to see that principle seated in the House of decision cited by learned Counsel for t ~efendant. In GARDEN COTTAGE FOODS LTD. v. MILK MARKETING BOARD 1983 2 AER 70 the House of Lords reversed the decision of the Court f and agreed with the Judge at first instance that no of unction would be made because damages would be an adequate =emedy. The way the learned Judge put it was thac damages would be an adequate remedy since they could be easily assessed the Mi Marketing Board would be able to pay them if iff succeeded at the trial. the facts of t s case even if damages could be easi:y asses certainly has not been demonstrat that the Def d be a position to ~~y them. On the contrary, mat fore me is that the Defendant is paralysed and I saw r Court do not disagree, and f_r~her her aff is ment her dependency on others tu pay prope The Plaintiffs have shown that they have a facie case. have good documentary tit to the land and the balance of convenience lies in granting the injunction. order is that - ..k Upon the Plaintiffs granting the undert as to damages I the Defeildant iE restrained an order is res the Defendant Nhether by herself or r s or servants or any of them or otherwise until j in action from constructing or continuing to construct a concrete dwelling house on the land which is the subject matter of s suit situated at Rose the ci of Castries. Costs of these proceedings to be that the Plaintiffs In event to be agreed or taxed.

A.N.J. MATTHEW

Puisne

Suit No 408 of 1996 Matthew, J Delivered: 17/07/96