CORELLA JOSEPHINE FRANCIS v RICHARD FRANCIS

# 15 SAINT LUCIA IN THE HIGH COURT OF JUSTICE (CIVIL) A.D. 1996 Suit No. 807 of 1995 BETWEEN: CORELLA JOSEPHINE FRANCIS Pl iff and RICHARD FRANCIS Defendant Mrs. S. Lewis for Plaintiff Mr. R. Frederick for Defendant \ 1996: April 24; May 8. J U D G MEN T MATTHEW J. (In Chambers). r, aintiff is the widow t De's Francis. The Deceased died on 24, 1989 1 a which was probated on September I, 1989. The Will is te s was made be G. M. on, Not on 29, 1981. It contains short 3 names the Plaintiff as the sole Executrix and s to all the Deceased's property whether movable or e. On November 14, 1995 the Plaintiff filed a writ of summons ed with statement of claim in which she alleged t or November 1994 and at subsequent t s the Defendant entered upon property which belonged to herself and her carried away lots of the produce. She also alleged that the Defendant has threatened to harm her if she should set foot on said land. On the same day she filed a summons supported by two affidavits asking for injunctive relief against the Defendant. Defendant was served with the writ of summons, summons for erlocutory relief and the affidavits on December 5 f 1995. entered appearance on December 18, 1995 did not file any answer to the affidavits nor a defence to the writ of summons. In making her submissions' in respect of the of the erlocutory inlunction learned Counsel read throuqh t affidavits of the Plaintiff and that of Anthony sed that in 1994 he observed t Defendant trespass on the land question and picking and carrying away oranges, grapef ts and coconuts. In his reply learned Counsel for the De tt that he 1 not condone violence and would not ODDose t unction against the Defendant restra him from threat the Plaintiff. s in my view is an admiss the Defendant t ened the Plaintiff. I had a good look at the Defendant while learned Counse for the Plaintiff was making her submissions s anour cl cted that of a man who was very capable of out any threats he had made. Learned Counsel for the Defendant submitted that it was clear from paragraph 8 of the Plaintiff's affidavit that she is in position to quantify whatever losses that she had suffered so the unction should not be granted for an unction is not usua granted where damages are an adequate remedy. What Counsel fails to realise is that because damages may be quantifiable does not mean they are adequate. The words of 1979 White Book are as follows: liThe governing principle is that if the recoverable damages would be an adequate remedy, no interlocutory unction should normally be granted however strong the Plaintiff's claim appears to be at the ocutory stage. if the recoverable damages under the Plainti f's undertaKlnq as to damages would be an adequate De the Plaintiff is in a f ial posit to pay them, t a iff an erlocutory there is no reason to refuse t unction." It seems to me that the term" e stl an li to pay and damages can be an if the Defendant the abili to pay them. I am not persuaded that the De $25,420. s this case has shown any ability to meet t claimed in the statement of cla to Counsel for the Defendant has intimated s bona f intent challenge the will of Jos Francis. As I stated earlier that 11 was probated as long ago as I, 1989 but the Defendant is quite free to challenge at s late or stage. In the meantime re is a valid e Pla if as the sole Executrix of her deceased husband's estate. As regards the grant an interlocutory unct I 1 75 to the classic case of AMERICAN CYANAMID v. ETHICON LTD. s 471 A.C. 396 and to the analysis of the princioles found at and 472 of the United Kingdom Supreme Court Practice 1979. I am satisfied that there is a serious quest to be t ed and the application is not frivolous or vexatious and t I go on to consider whether the balance of convenience lies favour of granting or refusing the relief sought. In suit 187 of 1995 between BARBARA KIDDELL and WINDJAMMER CO. LTD. livered on May 31, 1995 I also considered the case of American Cyanamid and asked the question the Applicant had established that she had an arguable claim to the ght to put up an electric post on the land in question. I referred to: SMITH v. INNER LONDON EDUCATION AUTHORITY 1 AER 411 and SISKINA v. DISTOS COMPANIA NAVIERA SA. 1979 A.C. 24 the Applicant had not established the and cons I refused application for an injunction. In my judgment Plaintiff here has establi t she s a good arguable claim to the right she s to It is also my view that damages would not be to e ished the Plaintiff for her losses. I t Plaintiff's est business is being disrupted and that such disruption is a matter would be extreme diffi t to quanti s as was stated in the case MERCHANT ADVENTURERS LTD. v. M. GREW & CO. LTD. 1972 1 Ch. 242 at page 256. order is that

1.Upon the aintiff undertaking to abide by any order s Court may make as to damages case the Court opinion that the Defendant shall have susta any, reason of this order, whi the Plaintiff to pay. IT IS ORDERED that the Defendant be restra an r of injunction is granted restraining the De whetne himself or by his servants, or agents or othe se from trespassing on the Plaintiff's land and from the following acts or any of them namely: (a) picking, taking away and sellino t fruits from t trees planted on the Pla iff's land; and (b) threatening or otherwise interfering with the Pla iff or her use, enjoyment and occupation of the said land.

2.The Defendant shall pay to Pla iff's costs the sum $300.00. A.N.J. MATTHEW sne

SAINT LUCIA IN THE HIGH COURT OF JUSTICE (CIVIL) A.D. 1996 Suit No. 807 of 1995 BETWEEN: CORELLA JOSEPHINE FRANCIS and RICHARD FRANCIS Mrs. S. Lewis for Plaintiff Mr. R. Frederick for Defendant 1996: April 24; May 8. J U D G MEN T MATTHEW J. (In Chambers). aintiff is the widow t De’s Francis. The Deceased died on 24, 1989 1 which was probated on September I, 1989. The Will is Pl iff Defendant r, a 11 te s 1 was made be G. M. on, Not on 29, 1981. It contains short 3 names the Plaintiff as the sole Executrix and 4 s to all the Deceased’s property whether movable or e. On November 14, 1995 the Plaintiff filed a writ of summons ed with statement of claim in which she alleged t or November 1994 and at subsequent t s the Defendant 1 entered upon property which belonged to herself and her carried away lots of the produce. She also alleged that the Defendant has threatened to harm her if she should set foot on said land. On the same day she filed a summons supported by two affidavits asking for injunctive relief against the Defendant. \ Defendant was served with the writ of summons, summons for erlocutory relief and the affidavits on December 5 f 1995. entered appearance on December 18, 1995 did not file any answer to the affidavits nor a defence to the writ of summons. In making her submissions’ in respect of the of the erlocutory inlunction learned Counsel read throuqh t affidavits of the Plaintiff and that of Anthony sed that in 1994 he observed t Defendant trespass on the land question and picking and carrying away oranges, grapef ts and coconuts. In his reply learned Counsel for the De tt that he 1 not condone violence and would not ODDose t unction against the Defendant restra him from threat the Plaintiff. s in my view is an admiss the Defendant t ened the Plaintiff. I had a good look at the Defendant while learned Counse for the Plaintiff was making her submissions s anour cl cted that of a man who was very capable of out any threats he had made. Learned Counsel for the Defendant submitted that it was clear from paragraph 8 of the Plaintiff’s affidavit that she is in position to quantify whatever losses that she had suffered so the unction should not be granted for an unction is not usua granted where damages are an adequate remedy. What Counsel fails to realise is that because quantifiable does not mean they are adequate. 1979 White Book are as follows: damages may be The words of liThe governing principle is that if the recoverable damages would be an adequate remedy, no interlocutory unction should normally be granted however strong the Plaintiff’s claim appears to be at the ocutory stage. if the recoverable damages under the Plainti f’s undertaKlnq as to damages would be an adequate De the Plaintiff is in a f ial posit to pay them, t there is no reason to refuse t unction.” a iff an erlocutory It seems to me that the term” e stl an li to pay and damages can be an if the Defendant the abili to pay them. I am not persuaded that the De this case has shown any ability to meet t claimed in the statement of cla $25,420. Counsel for the Defendant has intimated s bona f intent s to challenge the will of Jos Francis. As I stated earlier that 11 was probated as long ago as I, 1989 but the Defendant is quite free to challenge at s late or stage. In the meantime re is a valid e Pla if as the sole Executrix of her deceased husband’s estate. As regards the grant an interlocutory unct I to the classic case of AMERICAN CYANAMID v. ETHICON LTD. A.C. 396 and to the analysis of the princioles found at and 472 of the United Kingdom Supreme Court Practice 1979. 1 75 s 471 I am satisfied that there is a serious quest to be t ed and the application is not frivolous or vexatious and t I go on to consider whether the balance of convenience lies favour of granting or refusing the relief sought. In suit 187 of 1995 between BARBARA KIDDELL and WINDJAMMER CO. LTD. livered on May 31, 1995 I also considered the case of American Cyanamid and asked the question whe the Applicant had established that she had an arguable claim to the ght to put up an electric post on the land in question. I referred to: SMITH v. INNER LONDON EDUCATION AUTHORITY 1978 1 AER 411 and SISKINA v. DISTOS COMPANIA NAVIERA SA. 1979 A.C. 24 the Applicant had not established the and cons I refused application for an injunction. In my judgment Plaintiff here has establi t she s a good arguable claim to the right she s to It is also my view that damages would not be to e the Plaintiff for her losses. I t Plaintiff’s est ished business is being disrupted and that such disruption is a matter would be extreme diffi t to quanti s as was stated in the case MERCHANT ADVENTURERS LTD. v. M. GREW & CO. LTD. 1972 1 Ch. 242 at page 256.

1.order is that Upon the aintiff undertaking to abide by any order s Court may make as to damages case the Court 11 opinion that the Defendant shall have susta any, reason of this order, whi the Plaintiff to pay. IT IS ORDERED that the Defendant be restra an r of injunction is granted restraining the De whetne himself or by his servants, or agents or othe se from trespassing on the Plaintiff’s land and from the following acts or any of them namely: (a) picking, taking away and sellino t fruits from t trees planted on the Pla iff’s land; and (b) threatening or otherwise interfering with the Pla iff or her use, enjoyment and occupation of the said land.

2.The Defendant shall pay to Pla iff’s costs the sum $300.00. A.N.J. MATTHEW sne