R Theodore L.v Browne Laura Browne Claimants v Iona Williams Akaiona Olliver Defendant [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Judgment Date: 19 January 2005
• Judgment citation (vLex): [2005] ECSC J0119-2
• Date: 19 January 2005
• Docket Number: HIGH COURT CLAIM NO.: 266 OF 2004
• Court: High Court (Saint Vincent)

[2005] ECSC J0119-2

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

HIGH COURT CLAIM NO.: 266 OF 2004

Between:

R. Theodore L.v. Browne Laura Browne

Claimants

and

Iona Williams Akaiona Olliver

Defendant

DECISION

1 On the 25^th May 2004 the Claimants filed a claim. They sought the following relief:

• 1. A Declaration that the Claimants are the absolute owners of a concrete dwelling house situate at Diamond in the State of Saint Vincent and the Grenadines and are entitled to possession thereof.

• 2. An Order for recovery of possession of the said dwelling house.

• 3. Damages for trespass.

• 4. An Injunction compelling the Defendant to break down an incomplete concrete structure she recently began building on the Claimants' land or alternatively an Order by the Court that the Claimants their servants and or agents with the assistance of the Court Bailiff breakdown same.

• 5. An Injunction restraining the Defendant whether by herself her servants and or agents or whosoever from crossing the Claimants' land situate at Diamond being twenty four thousand six hundred and thirty five square feet (24,635 sq ft) as are more particulal1y described in Deed of Conveyance No. 1858/1999.

• 6. Costs.

2 On the same date the claimants also applied for an injunction to compel the defendant to demolish a structure that the defendant had begun to construct on the land. On 27^th May 2004 Bruce-Lyle J granted the injunction ex parte. The defendant who had been served with notice of the application for the injunction on 26^th May 2004 did not attend the hearing.

3 No defence was entered to the claim. More than four (4) months later the claimants applied to the Court for judgment in default of defence under CPR 2000 part 12.10 (5). At the hearing of that application the Court ordered that the defendant deliver up possession forthwith and pay damages for trespass assessed at $12,000.00 in addition to costs of $5,000.00. This order, having been made on 4^th November 2004 and entered on 12^th November 2004, was served on the defendant on 17^th November 2004. The defendant now applies to have that order set aside. By her application dated 6^th December 2004 the Defendant also seeks leave to file a defence out of time as well as a stay of execution of the order.

4 Mr. Robertson for the defendant advanced several grounds in support of the application to set aside the order.

5 Firstly, he says that the claim is in essence a claim for possession of land. Such a claim ought to be made by fixed date claim form according to Part 8.1 (5) and under CPR 2000 Part 12.2 judgment in default of defence is not available if a claim is a fixed date claim.

6 Mr. Dougan Q.C. in response points out that the claimants are seeking more than just possession of land and as such have properly commenced this matter by claim form. The restriction on getting a default judgment in a fixed date claim for possession of land is to prevent a claimant from getting an administrative judgment entered by the Court Office under CPR 12.5. The Court views these matters as being so serious that the intervention of a judicial officer is required before such a judgment can be obtained.

7 In the instant case the claimants did not merely request an administrative judgment from the Court Office. The application for judgment is made under CPR 12.10 (5). I am persuaded that the position advocated by Mr. Dougan is to be preferred. I hold that this mixed claim could properly be started by a claim form.

8 Mr. Robertson also argues that the statement of claim was not accompanied by a certificate of truth. This he says is fatal to the claim. The Court file reveals that the statement of claim of the claimant is in fact accompanied by the requisite certificate of truth. When this was pointed out to Mr. Robertson his response was that such certificates were not served on the defendant with the claim form...