ANNIE JAMES v CUTHBERT JAMES et al

.l #017 SAINT LUCIA IN THE HIGH COURT OF JUSTICE (CIVIL) A.D. 1996 Suit No. 171 of 1996 BETWEEN: ANNIE JAMES by her attorney Francisca Oscar p - -< / {i1 ,,-V Petitioner and -z; "2

1.CUTHBERT JAMES

2.AGATHA JAMES

3.VIDA JAMES Respondents ~ t- Tt Mrs . S. Lewis for Petitione r Mr. R. Frederick for Respondent s 1996: May 8 and 10. L J U D G MEN T MATTHEW J. (In Chambers) . On February 28, 1996 Anni e James filed a petition aga t t he r ~ .-{ Respondents by virtue of Article 841 o f the Code of Civil Procedure ::j: asking to issue an order of injunction agains t the Respondents to u;:; 7fl cease their trespass and interference t o certain c ommun i ty property comprising land forming part of Block and Parcel No. 1828B 11 and -1 "" the three bedroom house situated on it. GI 2? Besides the injunction the petition asks for five othe r rel ief and costs. [Tl en Article 841 of the Code of Civil Procedure is as follows: liThe application for a writ of injunction i s made by petit ion to the Supreme Court or Judge, supported by affidavit set t ing forth the facts of the case and containing the necessary condit i ons. It may be granted unconditionally, or upon such terms as the Court or Judge may think fit". Articles 841 to 852 are all found Sect V 0 Chant Fourth whi is headed "INJUNCTIONS . Nothing these art les authorise t larations and other orders t Petitioner in this petition. And learned Counsel for Petitioner herself observed r submiss list c speaking some of the matters in tit are for t tantive matter. II I shall t t as inappropriate these proceedings that I 1 refer 0 in support of my conc direct my attent grant or refusal of the order of unction. It ought to be said that Petit r is t fe f s the first Respondent, Cut James, and the other two Re are the mother and sister of the first Re respect So I note the order of inlunct is t one of Parties who has an interest in the property of may be owner. Indeed one of the exhibits to the aff Petit one IS attorney is a deed which states that on 1 141 1975 the second Respondent sold to the first Respondent a lot of 1 sing 3,600 square feet for $2 / 000 cash. In support of the petition were affidavits filed Francisca Oscar on February 28, 1996i by Joseph James, a building contractor, filed on April 25, 1996; and by Marylen Joseph filed on April 25, 1996. As exhibits to the affidavit of Francisca Oscar were a it of her power of attorney dated February 8, 1996; a certificate of marriage between Cuthbert James and Annie James which states that their marriage took place on May 31, 1972 i a final decree of dissolution of the marriage dated August 24, 1993; and a separation and property settlement agreement dated June 17, 1993 and referred to and incorporated in the final decree of dissolution. James each filed On April 18, 1996 Vida James and Agatha an affidavit in answer to the petition; and on 1 24, 199 Cut James also filed two affidavits in answer to the s d petition. relevant part of the ion and settlement agreement is as follows: "B. St. Lucia property erests. Whatever erests claims either party has to real estate, structures, or any and all proceeds, interests, or claims St. Lucia determined that j ct If So the provision is not really helpful as det ther t the Parties have or had property Sa Lucia or what settlement agreement they had in respect of such There is on record a deed of sale made h James Cuthbert James in respect of the sale of a portion of land. That was executed on April 14, 1975 which was ter the cel i of the marriage between Cuthbert James and Annie James. If thlS would is valid, presumably, t incidence of 1 arise to give Petitioner an erest t the two Parties built a house on land it would become of the community. In her petition the Petitioner stated that in 1979 she and t first Respondent built a three bedroom house on land va at $150,000.00. In her fidavit Francisca Oscar stated t rented the house to Gertrude Actil on behalf of sister, Petitioner, for $500 a month from November 1995 who paid her up to April 1996. She said in December 1995 the second and third Respondents informed the tenant that the first Respondent had passed the house over to them and that she should leave the house and if she did not leave they would remove the roof of the house; but strangely enough, she said that on November 13, 1995 she sited t house saw men on the house removing the roof. se affidavits are dangerous things. Francisca said she discovered subsequently that land on the house is located was registered the name of James even though Agatha was asked to claim it for the the land adjudication process. said the 3,600 square feet of land purchased by the 1975 deed has not been surveyed and forms part of a larger ion mea 13,000 square feet of land registered the name of Agatha James as Block and Parcel No. 1828B 11. said that Agatha James purported to donate house to da James by deed of donation dated November 9, 1995 and registered as the Land Registry on November 14, 1995. She gave an undert to damages. In his affidavit Joseph James stated that in 1979 he met and Annie James at Micoud and they took him to a site whi described as their land and said they wished him to bUlld a for them. He said he subsequently constructed the house and he d so in a period of about four months. Mr. Frederi criticizes thlS affidavit because it was filed after the proceedings began. I do not see why that in itself should affect the authenticity of the affidavit. It may have been thought necessary because one of s affidavits filed a day earlier Cuthbert James said knew that his mother in 1979 commenced the erection of a wall house on the land. Marylen Joseph, a teacher and cousin of Annie James, said that she had collected rental for that house for the Petitioner and that she always knew from about 1979 that the house and land belonged to James e James. In answer, James s 3 to owner as 1828B 11. t was at one t Dexter Force. a upon cost of S,OOO.OO. rent was to sca Oscar Actil 1 1996 and act out te, envy j never mother. 1 18, 1996 James fi an f son, cutnoert James. built a on at $lS 100 that James and James on the f. James fi two aff s answer on 1 24, 1996. are quite simi In one Agatha James to be two s village of Micoud. He said in 1 1975 his to a property but he ined s wife not with his mother. He said Annie James is well aware no interest in the property in quest and is harassing his mother through the legal process to get at In the second affidavit he reiterated that 1975 he was not In Saint Lucia and never bought or instructed anyone to land on s behalf from his mother. He said he has known his mother to be absolute owner of the two portions I at that in 1979 she commenced the erection of a wall house on the land f some of the monies he sent her for maintenance. He ied that he ever asked his mother to claim any land for when the authorities of the Land Registration and tl ect reques persons to do so. I do not believe Francisca Oscar that she or r sister rent house from November 1995 and was paid rental up to 1 1 96. I not believe the Petit was ever in possess of the house. As regards the grant of an rlocutory unction to the classic case of AMERICAN CYANAMID v. ETHICON LTD. 1975 A.C. 396 and to the analysis the les at s 472 of United Kingdom Supreme Court Practice, 1979. I am satisfied that there is a serious question to be t As I stated earlier there may be evidence of the Petitioner's erest in the land purchased in 1975 and no matter what James, Agat James or Cuthbert James say, there is a deed which was effected between Agatha James and Cuthbert James before George Melvin Compton, Notary Royal, on April 14, 1975. Mr. Frederick says both vendor and purchaser agree there was no sale but they may have a common interest to protect. They may want to resist any claim of the Petitioner. He also criticizes the deed for in the schedule the title does not refer to Agatha's 1966 or 1970 deed but to the same reference found in the 1966 and 1970 deeds. He further states that 1980, five years after the all sa e to Cuthbert James Agatha, James mortgaged her two ces of and Saint Lucia Cooperative Bank . and there is no reference to the 1975 sale. It is interest to note that I these transactions, name (a) Sale by Annie Duncan to Agatha James 5, 1 (b) Sale by Annie Duncan to Agatha James Sept , (c) Sale by Agatha James to Cuthbert James I 14, 1975; (d) Hypothecay obligat by Agatha James favour Sa Lucia Cooperative Bank November 21, 1980; is t same Notary Royal. Be that as t may, I find that applicat is not f ous or vexatious and therefore I go on to consider whether the balance of convenience I s in favour of grant or refus t relief sought. The property in question, as indicated, is not it and it is a small part of a larger portion which was st in the name of Agatha James and donated to Vida James towards last year. Mr. Frederick in response to my question admitted that t property is registered in the name of Vida James today. s feature is perhaps the reason for tacking on to the application for an order of injunction requests for partit ,for declaration of ownership of 3600 square feet of land, for declaration of ownership of the house, and effect asking me to change the land register. The Petitioner is asking me to chase out the registered proprietor of a large portion of land from a small bit of the land in which the Petitioner has at most a f share. I would not readily accede to this. The Petitioner must pursue the appropriate action for the remedies she seeks. In my judgment the Petitioner has not est ished t she has a good arguable claim to the right she seeks to protect. It is my further view that damages would be e to compensate Petitioner for any rights she may have. The is st there and a fortiori, the land. In the additional relief requested by the Petit I after al ition and declarations sought, she asked an order t she paid her half share of the communi property. So here aga s another reason why she should seek appropriate reI f elsewhere. According to the United Kingdom Supreme Court Practice 1979 at paragraph 29/1/6: "The very fist pr iple of unct law is t you do not obtain unctions for actionable wrongs s are the proper remedy." application for unction is refused wi costs of $300.00 to Respondents.

A.N.J. MATTHEW

Puisne Judge

Suit No. 171 of 1996 Matthew, J Delivered: 10/05/96