Charles v Felix

• Jurisdiction: Dominica
• Judge: Peterkin, J.A.
• Judgment Date: 09 April 1980
• Neutral Citation: DM 1980 CA 1
• Court: Court of Appeal (Dominica)
• Docket Number: Ci v. Appeal No. 1 of 1978
• Date: 09 April 1980

Court of Appeal

Davis, C.J., Peterkin, J.A., Berridge, J.A.

Ci v. Appeal No. 1 of 1978

Charles

and

Felix

Appearances:

F. Kelsick for caveator,

L. Lockhart with him, instructed by R. Lockhart.

Miss E. Charles for caveatee.

Practice and procedure - Judicial comity — Caveat lodged against issue of certificate of title — Judge acknowledged that there was a previous judgment on the matter but did not follow it — Court held that he should have followed the previous judgment unless there was a compelling reason for not doing so — Appeal allowed..

Peterkin, J.A.

1 This is a claim by Susan Charles, Caveator, as personal representative of Anthony Charles, deceased, under section 170 of the Title by Registration Ordinance (Chapter 222) for the decision and direction of the Court of Appeal.

2 On the 20th September, 1967, the claimant lodged a caveat against the issue of a Certificate of Title to Rudolph Felix in respect of a portion of land in the Parish of St. Joseph containing 2831.2 sq. ft. The caveat was tried on 30th June and 8th October, 1970, and on 8th and 9th December, 1971, by Louisy, J. whose judgment was delivered on 13th December, 1972. The trial judge discharged the caveat with costs to the caveatee. The caveator, being aggrieved by the decision, nor seeks the decision and direction of this court in terms of the Ordinance.

3 John Baptiste Charles, (also called Harvey Charles) deceased, owned an estate called “Deux Bras” or “Syers” comprising approximately 224 acres. He left the estate to his sister Ernestine Charles, deceased, who in turn left it to Anthony Charles. Anthony Charles died on 4th November, 1958, leaving the caveator as one of the two executors of his will, which was probated on the 27th June, 1959. At the time of the death of Anthony Charles the caveator was out of the Commonwealth of Dominica. She returned on 23rd June, 1963. She met no-one in charge of Syers Estate so herself took charge of it. She appointed Elwood Shillingford her agent and caused a survey to be made of the Estate by a licensed surveyor, Karol Winski. He made the necessary searches and gave notices of his intended survey to adjacent owners, among whom were the Bertrand Sisters, the persons who sold the land the subject matter of this caveat to the caveatee, Rudolph Felix. Winski then prepared a display plan ( Ex. 5) of that part of Syers Estate relevant to the instant caveat. It is to be found at p. 22 of the record. On this plan is shown an area marked red and white consisting of 6.50 acres claimed by the Bertrand Sisters. It is in respect of a portion of land in this area that the caveatee has applied for a Certificate of Title.

4 The trial judge, having set out the respective cases of the caveator and Caveatee in his judgment, went on to find as follows.–

“On the oral and documentary evidence before me I find that at one time the portion of land claimed by the Bertrand sisters belonged to Syers Estate, but that sometime before 1928 the portion of land in dispute was occupied by Anastasie Bertrand, the mother of the Bertrand sisters and she cultivated the land and used the produce therefrom. According to her Will she seems to have been caretaker of that piece of land, and handed “her power of caretaker” to her son Tyrell. There is nothing to indicate what happened to Tyrell as caretaker, but the evidence is that since the death of Anastasie Bertrand, the Bertrand sisters have occupied the land, cultivated it for some time, cut wood on it and eventually began selling lots. I accept this evidence. They have done these acts without interference from anyone of the owners of Syers Estate or anyone else and in fact, sold at least two lots during the lifetime of Anthony Charles.”

5 From this, he concluded (i) that the Bertrand sisters were in undisturbed possession of the land for over 30 years, and (ii) that they had acquired a possessory title to the disputed land at the time of the sale to Rudolph Felix.

6 The matter, however, does not rest there. It was drawn to the trial judge's attention by counsel that a similar matter involving the same facts had already been adjudicated upon by a judge of the same court. The judgment referred to was that given in Caveat. No. 3 of 1968 between the caveator in this case, Susan Charles, and one Barnet John. It was a Caveat entered by Susan Charles against the issue of a first certificate of title to him in respect of a portion of...