LESLIE REGINALD CLARKE v TROY DALPHINIS et al

t \ \ ,;,: (9} ) #04 SAINT LUCIA IN THE HIGH COURT OF JUSTICE ( CIVIL) A.D. 1996 Sui t No, 705 of 1995 BETWEEN: r r :z; :;:: -;:::. LESLIE REGINALD CLARKE Executor of the Estate of Reginald Clarke Plaintiff p '- and

1.TROY DALPHINIS

2.CECILIA FRANCIS Defendants II T rt V r t- rt Mr. M. Foster for Plaintiff Mr . H. Detervi lle for Defendant No . 1 1996: January 10 and 16 :A '- J U D G MEN T MATTHEW J. (In Chambers) . L. On October 5, 1995 the Plaintiff fil e d a writ of summons indorsed with statement of claim asking for , a mong o t her things , a dec l aratory order that the Plaint i ff is owner of 87 . 381 acres of .,- land, a portion of Point de Caille estate and an injunction restraining the Defendants, their agents and/ or s ervants from ::x:; ~ ent ering upon and/ or r emaining upon a disput ed por t ion of the land . 'f '1 ,. The first Defendant entered appearance on October 24 , 1995 and on the same day by summons applied to strike out the Plaintiff's cla im ~ r -0 against him under Order 18 Rule 19 of the Rules of the Supreme Court and also under the inherent jurisdiction of the Court on the +-t 2- 1-1 ground that t he Plaintiff's c l a i m discloses no reasonable cause o f V) ac t ion against the f irst Defendant. t, In the course of his submissions learned Counsel for the first .1; Defendant went through the Plaintiff's sta t ement of claim and submitted that no allegation was made against the f irst Defendant to lead to a grant of the prayer in the statement of cla Learned Counsel for the Plaintiff in stat s was a case against the first Defendant in s capaci as 0 the second Defendant and he knew of no rule that says one cannot sue a ipal and an agent. I should point out here that the writ does not show on its face that the first Defendant is be as 0 the second Defendant and the statement of cla say so either. The reference to an agency in before the Land Adjudicator does not amount to a that s is agent s t. Counsel referred to paragraph 18/19/5 the ted is Court Practice and said the is t against a person the Court has no power to st out t action. paragraph states: "So long as the statement of cla or particulars sclose some cause of action, or raise some question fit to be dec by a Judge or a Jury, the mere fact that the case is weak, not likely to succeed is no ground for striking it out. If I accept the authority of the law cited by learned Counsel t Plaintiff. It is however, necessary to look at t statement of claim to determine if there is a cause of action or it raises some question fit to be decided by the Court. In brief the statement of claim discloses that Reginald Clarke deceased was owner of a portion of land at Point de Cai le containing 87.381 acre which later was declared by the Court to be correctly 72.04 acres and the Defendants challenged successful the Plaintiff's rights to the Southern portion before the Land udicator and as a result .the Second Defendant was re as owner of approximately 5 acres of the Pla iff's 1 aintiff then attempted to appeal t Land udicator's decision and failed to do so whatever t reason fore the Land Tribunal Appeals Board tus officio being the state of the t a if now seeks a claration that he is owner of 87.381 acres of the sa lands. Leaving aside for the ision of t trial as to tner this action has t the real issue is ther the decision the cator the Plaintiff could not have s appea Plaintiff is no doubt asking that the land awarded to Cecilia Francis, the Second Defendant, be back to him. In a sense Troy Dalphinis, t rst De is not mat a t decision. He is not personal affected in any way and at first I was attracted by submissions of learned Counsel for t first Defendant. However, the Plaintiff is really asking the Court to set aside the ision of the Land Adjudicator which the first Def was trumental in obtaining. For that reason I would say t the first Defendant is not so alien to the present proceedings as d warrant me to strike his name off the writ of summons. I would therefore refuse the application of the first De but I would not say it is a frivolous application. I would therefore make no order as to costs.

A.N.J. MATTHEW

Puisne Judge

Suit No, 705 of 1995 Matthew, J Delivered: 16/01/96