Marie Philomene Paul Plaintiff v (1) Celia Joseph (2) Simon Joseph (3) One Margie Defendants [ECSC]

• Jurisdiction: Caribbean States
• Judge: d'Auvergn, J.
• Judgment Date: 04 April 1995
• Judgment citation (vLex): [1995] ECSC J0404-2
• Docket Number: Suit No.253 of 1989
• Court: Eastern Caribbean Supreme Court
• Date: 04 April 1995

[1995] ECSC J0404-2

IN THE HIGH COURT OF JUSTICE (CIVIL)

Suit No.253 of 1989

Between:

Marie Philomene Paul

Plaintiff

and

(1) Celia Joseph

(2) Simon Joseph

(3) One Margie

Defendants

d'Auvergn, J.

1 By a writ of summons indorsed with a statement of claim dated June 20, 1989 and filed on July 28, 1989 the Plaintiff sought the following relief.

• 1) A declaration that the Plaintiff is entitled to her land with the boundaries as described in her Deed of Sale including the right of way.

• 2) An order that a surveyor be appointed to survey the Plaintiff's land and to report to the Court.

• 3) An injunction to restrain the Defendants whether by themselves or by their servants or their agents or otherwise from entering or trespassing upon the Plaintiff's land.

• 4) An order that the second named Defendant forthwith pull down and remove the concrete platform and pillars on the said parcels of land.

• 5) An order that the third named Defendant pull down and remove the wooden shack erected on the said parcel of land.

• 6) Special Damage of $7,305.00.

• 7) Damages

• 8) Costs

• 9) Further or other relief.

2 On August 23, 1989 a summons for an interlocutory injunction supported by an affidavit was filed. On January 10, 1990 the order of injunction was filed (and on February 13, 1992 an amendment to include a penal clause omitted in the said Court order of injunction was filed).

3 The order reads as follows:

It is hereby ordered:

"That the second-named Defendant be restrained whether by himself or his servants or agents or otherwise from continuing to build a concrete structure on a portion of land in dispute situate at Cabishe, near Babonneau in the quarter of Castries.

That an expert in the person of Allan J Hippolyte licensed land Surveyor be appointed to view the said portion of land and report to the Court. The costs be the costs in the cause."

4 On the 26th day of January 1990 a defence was filed on behalf of the three Defendants.

5 A summary of the facts pleaded in the defence is summarized as follows:

The Defendants admitted that the Plaintiff owns two contiguous parcels of land at Cabishe, Babonneau sold to her by their parents. They further admitted that the vendors placed the Plaintiff in possession of theunsurveyed two parcels of land. They admitted executing a Deed of Sale in favour of the Plaintiff but denied any trespass upon the Plaintiff's lands.

6 They admitted that a survey was carried out and lodged at the Lands and Survey Department and that the Plaintiff had received 22,448 sq feet of land in accordance with the amount of land conveyed to her in the said Deed of Sale.

7 The second Defendant denied that the foundation for the building stated in the Plaintiff's statement of claim was partially on the Plaintiff's portion of land and that he damaged the Plaintiff's mango trees, avocado trees, pineapple plants, banana and dasheen plants to the value of $7,305.00.

8 The matter was heard on March 24, 1995 and at the trial the Plaintiff gave evidence on her own behalf and called licensed Land Surveyor Allan Hippolyte as a witness whereas Cecila Joseph a sister of the first and second Defendants gave evidence on behalf of the said Defendants.

9 The Plaintiff told the Court that she was a speculator by profession, who about eight years ago bought two contiguous pieces of land measuring 17,000 sq feet of land 'more or less' and five thousand 5,000 sq feet of land respectively, from the mother of the two Defendants; that the land was not surveyed but the vendor pointed out her boundaries to her and that she immediately entered into possession; that some time after the death of the vendor the first Defendant executed a Deed of Sale in her favour, conveying the amount of land mentioned above, viz 17,000 sq feet 'more or less' and 5,000 sq feet.

10 She said that a few years after receiving her title she employed licensed Land Surveyor Jerome Joseph to survey her portion of land; but that from the commencement of thephysical survey the said surveyor refused to adhere to the boundary marks that she showed him, whereupon she disassociated herself from the survey and never completed payment of the said survey. Nevertheless that survey was completed as plan C7142B and she tendered it as an exhibit.

11 The Plaintiff told the Court that she obtained a Court order which authorized Licensed Land Surveyor Allan Hippolyte to view the said property and report to the Court. He surveyed the land and she exhibited a plan and a report of a survey by Surveyor, Allan J Hippolyte. In his report and later in evidence he said that the boundaries of the survey were shown to him by the Plaintiff and that the Defendants objected to the survey on the ground that the Plaintiff had already surveyed her portion.

12 The cross examination of this witness disclosed that the Defendants are claiming a cedar tree to be one of the boundaries whereas the Plaintiff was adamant that, that boundary is a few feet away from the cedar tree and that she has been in occupation of the land within the boundaries as shown by her to both surveyors from the date of purchase.

13 Allan Hippolyte, Licensed Land Surveyor told the Court that he obeyed a Court order and viewed and surveyed a portion of land at Cabishe, Babonneau in the quarter of Castries. He told the Court that as he stated in his report (an exhibit which he identified) the boundaries were shown to him by the Plaintiff. He said,"she showed me trees, a clump of guava trees on one side and something else on another. As a result of the survey I found a concrete...