DAVIJEAN INVESTMENTS LTD v FRANCIS ETIENNE

-- SAINT LUCIA IN THE H~GH COURT OF JUSTICE (CIVIL) A.D. 1996 it No. 879 of 1994 L <: BETWEEN: DAVIJEAN INVESTMENTS LTD. PIa iff and Ft.:.hlTCIS ETIENNE Def K. Monplaisir Q.C., and Miss C. Hinkson for PIa i f . E. Ernest Def 1996: January 10 and 16. J U D G MEN T MATTHEW J. (In Che:a.uib.::: I.' 8 J • ..,..~ ~ovember 16, 994 the PIa iff filed a writ of summons th statement of c aim ask for, among other t an order the Defendant do forthwit 1 down, demolish and remove the l dings erect on certa of which t sa d was t owner situate at Morne Fortune Castries. Defendant was personal served Wl the writ of summons on 28, 1995 and he entered appearance 9 5. November 1 1994 t:he a l f t out a summons or an erlocutory unction to restrain the Def from trespass remaining or In anv way interf th the 1 appears that on March 8, 1995 unctive relief was ed t the Def who in person before the The copy of the order the file states that the r was entered on 23, 1995. October 30, 1995 the Defendant took out a summons ask for an r ,... t unct. on 19 5 and entered March 23, 1995 be set aside; the statement 0 la be struck out as disclosing no cause of action; the alternat that Defendant be grcntp~ eave to file serve his fence. November 16, 1995 the Plaintiff ent f t fence and the Registrar udged that the ~ef pay the aintiff damages to be asses the aring of the summons ed Oct r Counsel r the De d not pursue the icat f leave file serve a fence spite the Court's r to Counsel. In fact earned Counsel for the Plaint ff when hi turn ame sa d he had an answer to that ication but =-t was not and would not rE to it ullless ile Court shed to make a response. The Court application to set he uncti aside was based he fact f hat the order of unction was not filed t aining the r since the r was a March and it was filed on 22, 1995. learned Counsel for the Plaintiff erved the appl cat on was sed on Order 42 Rule 5 (1) of t Rules f the Court. That rule states: I, Every udgment or order 11, unless the se ordered, be drawn up and lodged wit.h the strar the the conduct of the suit or the c the not later than fourteen days from the date when t udgment was pronounced or the order made according to the ircumstances of the case." The ant per envi the e is between t f making the order and its h strar. The il f the order comes ater on as cated in f Rule Counsel for the PIa iff reference to the af idavit Bernard Joseph, a clerk in s ro? and an ac t, tted t the t r as required ) cf Rule 5 was left th strar on March 1 f 1 95 was approved on 13, 1995. ed that the f was sited th the istrar on 14 f 1 95 and it was not unt i strar aff her s to t r March 3, hat t P a i was e to f Ie t. am of the ew that the a iff is not in breach f e 5(1) and I refuse to set as t r f unct Counsel for the Def refe t and of he statement of c aim which is as follows: "1. Plaintiff s and was at all materi s owner possession of t property situate at Morne Fortune, Castries.

2.The Plaintiff ires s in Martinique and on a routine vis t to St. Lucia the month June discovered that the Defendant trespassed on the land constructed houses t " first observation was to know how a company d make rout sits to another country but that is another matter. arned Counsel for t Defendant submitted that the statement of aim failed to state the title under which the P a iff cIa to the owner of the property and failed to re r to t nature he deeds if any by whi cla title to t Counsel lied on the aut the 1991 United Court Practice t submission. passage is as lows: f f "Possession of land - In an act for possess possess on, which t plaintiff has never been s itle, t defendant is not estopped from statement 0 claim must state the nature of deeds, etr , ff re i in his itle the on whi the pIa whom la these are "mate al facts." It is insufficient to state t a iff is entitl virtue of certain , etc., the possess f " without her desc that has v. ( 87 . B. D. 7; held embarrass Le 1896] Q.B. re v. a if as a revers rtue t Grantees Reversion Act 1540, he had to show the t estate to h If s v. James (1 84 ,the fendant in an action possess of must plead specifical every de ch he of relied and 1 the necessary iculars In his allegations! it is not fic to pl (r. 2\ \ II that he is in possession by If or s tenant Counsel for the aintiff submi t ted that the ant words the passage cited above are "never been possess " paragraph 1 of the statement of cla alleges t t Plaint ff is was at 1 mate al times owner in possess He hat there was an important precondition to make the rule licable and t was absent here. Counsel for the Defendant had nothing to say in agree with t submission learned Counsel the PIa iff and I refuse to st out the statement of claim. The Defendant is to pay Plaintiff I s costs t sum 350.00.

A.N.J. Matthew

Puisne Judge

Suit No. 879 of 1994 MATTHEW J. Delivered: 16/01/96