Grant v Parker

• Jurisdiction: Antigua and Barbuda
• Court: High Court (Antigua)
• Judge: Bishop, J
• Judgment Date: 28 July 1978
• Neutral Citation: AG 1978 HC 29
• Docket Number: 57 of 1978
• Date: 28 July 1978

High Court

Bishop, J.

57 of 1978

Grant

and

Parker

John E. Fuller for the plaintiff.

Gerald A. Watt for the defendant.

Injunction - Trespass to land — Declaration that defendant was not entitled to enter or cross the plaintiffs land.

Bishop, J

1 On the 7 ^th March this year the solicitor for Malcolm Grant, the plaintiff, filed a writ of summons indorsed with a claim for “(1) a declaration that the defendant is not entitled to enter or cross the plaintiff's land known as Bath Lodge No. 13W situate at Greencastle estate in the parish of St. John (2) an injunction to restrain the defendant whether by himself or by his servants or agents or otherwise howsoever from entering or cross the plaintiff's said land (3) damages for trespass, (4) further or other relief.” A summons for an interlocutory injunction was filed on the same date and after adjournments on the 22 ^nd March and 12 ^th April, an Order was made in chambers on the 3 ^rd May, in which a date was fixed for the trial, and pleadings were ordered to be filed so as to meet the date of trial.

2 It was on the 15 ^th June that the following Statement of Claim was filed:

• “1. The plaintiff is and was at all material times the registered owner in possession of land known as Bath Lodge No. 13W Lot 3 situate at Greencastle estate, in the State of Antigua, with certificate of Title No. 307 of 1968 and registered in Book M1 at folio 148.

• 1. Since about the month of March 1970, the defendant has on divers dates wrongfully entered and cross the plaintiff's said land.

• 2. The defendant threatens and contends unless restrained by this Honourable Court to repeat the acts complained of.

3 And the plaintiff claims:

1

A declaration that the defendant is not entitled to enter or cross the…. said land. 2. An injunction to restrain the defendant or agents or otherwise howsoever from entering or crossing the…. said land 3. damages 4. Further or other relief.”

4 A defence and counterclaim was filed on the afternoon of 22 ^nd June. The first three paragraphs remained unaltered but the paragraphs following were later amended in pursuance of an Order of the Court made on the 29 ^th June following applications from learned counsel. Th first three paragraphs read:

“1. The defendant admits that the plaintiff is in possession of a certificate of Title No. 307 of 1968 which….. is registered in Book M1 at folio 148, but denies that the plaintiff is and was at all material times lawful registered owner in possession of the land known as No 13W Lot 3 and situate at Greencastle estate.

2. The defendant states that three-quarters of an acre as appears in the aforesaid Certificate of Title was duly purchased by Sarah Parker deceased, and was partly paid for by Viola Parker the defendant's mother, and does not properly form part of the land as claimed by the plaintiff.

3. The defendant further states that the Certificate of Title No. 307 of 1968 was obtained by the plaintiff by fraud and/or was mistakenly signed by the donor David Parker now deceased at a time when he was incapable of appreciating the consequences of his act.”

5 It was not until the afternoon of the 28 ^th June that the plaintiff's solicitor filed a defence to counterclaim; but since a completely new pleading was filed pursuant to the order of the Court already mentioned, no useful purpose will be served by reproducing that original pleading here.

6 Paragraph 3 of the Defence and Counterclaim alleged fraud and it was necessary that the defendant's solicitor provide particulars, and not merely plead as was done. Learned counsel for the defendant readily conceded that the necessary particulars had not been provided and that any amendment of the pleading would lead inevitably to amendment of subsequent pleadings. On the 29 ^th June, after hearing learned counsel for the parties I made an order including the following terms:

“The defence and counterclaim to be amended so as to state the specific facts and circumstances which amount to fraud as alleged. The amended pleading to be served and filed within seven days. Amended Reply and Defence to the counterclaim to be served and filed within three days of service of the amended Defence and counterclaim. A reply, if necessary, to be served and filed within three days of service of the amended Defence to Counterclaim…. Trial fixed for 11 ^th July notwithstanding the fact that the date falls within the periods for filing and serving the pleadings.”

7 I may observe here that the solicitor having carriage of the Order made in Chambers and that made in open court failed to comply with the Rules of Supreme Court, 1970.

8 As a consequence of my Order on 29 ^th June, the amended defence and counterclaim, after repeating the first three paragraphs continued thus:–

• “4. The plaintiff was fraudulent in that the said David Parker deceased in or about July 1968 told the plaintiff, in the presence and hearing of Viola Parker his daughter in law that he proposed to give the plaintiff 2 acres of his land at Bathlodge, one (1) acre of the said land to one Christiana Carr and that the remaining land was to be divided between deceased's grandchildren.

• 5. In or about March 1962 the deceased David Parker in the presence and hearing of Christiana Carr told the plaintiff that the was going to convey to him 2 acres of land, that one (1) acre would be conveyed to the said Christians Carr and that the remaining land was to be distributed between the deceased's grandchildren.

• 6. That the plaintiff in the light of the above, knowingly, falsely and fraudulently instructed his solicitor Louis H. Lockhart to prepare a memorandum of transfer in the amount of 6: acres, which said memorandum was taken to the deceased by the said Louis H. Lockhart and the plaintiff's wife and which memorandum the said deceased signed by making his mark, he being too weak from age and too blind to properly sign his name.

• 7. That the plaintiff at all material times well knew that the said deceased at the time of the purported transfer was incapable of seeing and understanding the nature of the said transaction he being almost totally blind and deaf through age and infirmity.

COUNTERCLAIM

8

…… the defendant repeats paragraphs 2,3,4,5 and 6 of his defence and claims (1) a declaration that the certificate of Title No. 307 of 1968 in the name of the plaintiff was obtained by fraud and /or mistake and is void and of no effect. (2) a declaration that the plaintiff is only entitled to ownership and possession of two (2) acres of the said land and not 63/8 acres as appears in the said certificate. (3) that this Honourable Court rectify the said Certificate of Title No. 307 of 1968 from 6: acres to 2 acres or as the Court may deem fit. (4) damages (5) costs (6) such further or other relief as the Court may deem fit.”

9 Clearly the amended pleading was open to much criticism. It referred to 6: acres and to 63/8 acres as the area of land described in the Certificate of Title. The counterclaim sought a declaration that the Certificate of Title was void and of no effect, yet it also asked the Court to rectify that same certificate by substituting A2” for A6:”. If the Court were to find that the Certificate of Title was obtained by fraud on the part of the plaintiff and was therefore void and of no effect, then clearly there would be no question of rectification of the same Certificate of Title. The counterclaim failed to show whether the relief sought in subparagraphs (2) and (3) of paragraph 8 was alternative relief.

10 It is also my view that notwithstanding the fact that the defence and counterclaim were to be amended so as to show or state the facts and circumstances that amounted to fraud, the pleading failed to disclose any fraud on the part of Malcolm Grant the plaintiff. I wish to refer here to the notes appearing in Volume I of the Supreme Court Practice, 1973 — the latest volume available to this Court — and pertaining to Order 18, rule 8 (matters which must be specifically pleaded), and Order 18, rule 12 (particulars of pleading), each of which is substantially if not completely similar to the corresponding rules in the Rules of Supreme Court, 1970 of this State. The note appearing under the heading “Fraud” at 18/8/4 on page 266 reads in part:

“It is the duty of counsel not to enter a plea of fraud on the record unless he has clear and sufficient evidence to support it” (see per Lord Denning in ASSOCIATED LEISURE LTD. V. ASSOCIATED NEWSPAPERS LTD. (1970) 2 Q.B. 450 AT P 456). Any charge of fraud or misrepresentation must be pleaded with...