Tyson v Tyson

• Jurisdiction: Saint Kitts and Nevis
• Court: High Court (Saint Kitts and Nevis)
• Judge: Horace, J.
• Judgment Date: 26 January 1981
• Neutral Citation: KN 1981 HC 1
• Docket Number: No. 12 of 1978
• Date: 26 January 1981

High Court

Mitchell, J.

No. 12 of 1978

Tyson

and

Tyson

Appearances

Dennis Byron for the plaintiff.

Eugene Walwyn for the defendant.

Real property - Ownership by prescription— Facts: The parties to the action were half brother and sister. The land in dispute was originally owned by their father. The plaintiff brought an action in trespass against the defendant. Whether the plaintiff had acquired a good title to the land in question. Finding that the defendant did not prove that she was acting under the authority of any person who was entitled to possession and did not derive any such right by virtue of the Intestate Estates Act, Cap. 36 since she was illegitimate. That the plaintiff gained a good title from his presence on the land and from his intention to exclude the world.

Horace, J.

1 The plaintiff's claim against the defendant was for:

• (1) Damages for trespass on the 12th day of May, 1978, to land in the lawful possession of the plaintiff at Barnes Ghaut Village in the Island of Nevis;

• (2) An order that the defendant do terminate the trespass complained of by removing the house placed by her upon the said land without the consent of the plaintiff;

• (3) An injunction to restrain the defendant from similar or further acts of trespass in respect of the land.

2 The plaintiff in his statement of claim pleaded certain material facts on which he relied in support of his claim. The defendant in her statement of defence admitted paragraph one (1) of the plaintiff's statement of claim to the effect that the plaintiff was a farmer living at Vaughn's Village in the Island of Nevis and that the defendant was a retired labourer then maintained by her children living at Barnes Ghaut Village in the said Island of Nevis. The defendant, also, admitted that James Tyson, late of Ghaut Village, Nevis, was in possession of land at Barnes Ghaut Village Nevis, at the date of his death.

3 The defendant denied that James Tyson, deceased, ever divided land as the plaintiff alleged in his statement of claim or gave any p to the plaintiff. The defendant denied that the plaintiff went possession of any portion of the land in 1934. The defendant denied paragraph four (4) of the plaintiff's statement of claim. The defendant admitted paragraph five (5) of the plaintiff's statement of claim. Then in the final paragraph of the defence the defendant stated I quote:– “The defendant denies the allegation set out in paragraph 6 to the Statement of Claim. Save and except as hereinbefore admitted the defendant denies each and every allegation of fact in Statement of Claim as if the' same were set forth seriatim specifically denied.”

4 There was no assertion of any material fact whatsoever on the part of the defendant. Order 18 Rule 7 (1) of the Rules of the Supreme Court, 1970 under the heading “Facts, not evidence, to be pleaded” states and I quote:– “Subject to the provisions of this rule and rules 10, 11 and every pleading must contain and contain only, a statement summary form of the material facts on which the party plea relies for his claim or defence, as the case may be ………”

5 The defendant Grace Tyson in her statement of defence as signer her Solicitor, Mr. Eugene Walwyn stated no material fact on which relied for her defence. The Rules of the Supreme Court made under the authority of state themselves have the force of, statute in matters of procedure (See e.g. S.S. Hontestroom v S.S. Sagaporack [1927] A.C. per Lorry Summer at p.47Donald Campbell & Co. v Pollak [1927] A.C. at p. 804). Again Order 18 Rule 8 (1) under the heading “Matters which must be specially pleaded” states and I quote:––

• “8(1) A party must in any pleading subsequent to a statement, of claim plead specifically any matter, for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality -–

  • (a) which he alleges makes any claim or defence of the opposite party not maintainable, or

  • (b) which, if not specifically pleaded, might take the opposite party by surprise: or

  • (c) which raises issues of fact not arising out of the preceding pleading.

• (2) Without prejudice to paragraph (1), a defendant to an action for recovery of land must plead specifically every ground of defence on which he relies, and a plea that he is in possession of land by himself or his tenant is not sufficient.”

6 It has been said that “this Rule enforces one of the cardinal principles of the present system of pleading, viz., that every defence or reply must plead specifically any matter which makes the claim or defence in the preceding pleading not maintainable or which might take the opposite party by surprise or raises issues of fact not arising out of the preceding pleading. Put shortly, wherever a party has a special ground of defence or raises an affirmative case to destroy a claim or defence, as the case may be, he must specifically plead the matter he relies on for such purpose.”

7 It has been further stated that “it often is not enough for a party to deny an allegation in his opponent's pleading; he must go further and dispute its validity in law, or set up some affirmative case of his own in answer to it. It will not serve his turn merely to traverse the allegation: he must confess and avoid it.” Accordingly the defendant in the circumstances of this case was not entitled to have a roving commission to lend evidence on whatever aspect of the case she chose after the case was being heard and, as the case progressed, without reference to any material fact mentioned in her statement of defence.

8 As Buckley L.J. said in Re Robinson's Settlements Gant v. Hobbs (1912) 1 ch. 717, 728 “The effect of the role is, for reasons of practice and justice and convenience, to require the party to tell his opponent what he is coming to court to prove.” It has also been stated that “generally whenever any statute is relied on as a bar to the action, it should be specially pleaded” ( Coburn v Collins 35 Ch. D 373; Hayward v Lely 56 L.T. 418).

9 According to the provisions of section 11(1) of the West Indies Associated States Supreme Court (Saint Christopher, Nevis and Anguilla) Act 1975 and I quote:––

“The jurisdiction vested in the High Court in civil proceedings and in Probate, Divorce and Matrimonial causes, shall be exercise in accordance with the provisions of this Act, or any other Law in operation in the State, and of the rules of court; and where no special provision is therein contained such jurisdiction shall be exercised as nearly as may be in conformity with the procedure law and practice for the time being in force in the High Court of Justice in England.”

10 So, the Annual Practice (White-Book) may be of some persuasive authority as to the effect which the omissions in the statement of defence may have in the course of the hearing in this matter. The Intestates Estates Act, Chapter 36 was not specifically pleaded by the defendant nor was any other statute. So much for the unsatisfactory state of the defendant' and the legal effect it could have on the issues of the defence and on the legal presentation of the issues actually raised and those not raised by the defence in accordance with statutory procedure.

11 Mr. Dennis Byron, counsel for the plaintiff, in the presence and hearing of Mr. Eugene Walwyn, counsel for the defendant, and the defendant herself, stated that he had been advised that the defendant would be joining issue with the plaintiff only with respect to the eastern portion of land. Mr. Walwyn agreed that that was so. In paragraph 3 of the plaintiff's statement of claim it is asserted and I quote:– “In 1934 James Tyson sub-divided the said lot and gave one portion to the plaintiff, being the western portion. The boundaries of the said sub lot were clearly defined and demarcated and the plaintiff went into possession thereof immediately and has remained in possession ever since.”

12 The plaintiff was thus asserting that he was in continuous undisturbed occupation of the western portion of the land in question since 1934. The evidence on behalf of the plaintiff in support of his statement of claim was given in the testimony of the plaintiff himself Alfred Tyson, Phillip Martin, Albertha James, David Archibald. The evidence on behalf of the defendant was given in the testimony of the defendant herself, Grace Tyson, Malvina Thompson, Wilmot Tyson.

13 Mr. Cecil Byron presently magistrate and formerly a practicing Solicitor of the Supreme Court who was actually present sitting in court was called as a witness by the court to give evidence under the powers and discretion conferred on the judge by section 81 of The West Indies Associated States Supreme Court (Saint Christopher, Nevis and Anguilla) Act, 1975 (No. 17 of 1975) which Act repealed and replaced the Supreme Court Act, Chapter 79.

14 In Part VII of The West Indies Associated States Supreme Court ( Saint Christopher, Nevis and Anguilla) Act, 1975 under the heading “Witnesses” at section 81 it is clearly stated and I quote: “Any judge may, in any proceedings pending before him, order any person present to give evidence therein, notwithstanding that no viaticum or other payment to which he was entitled, shall have been paid or tendered to him.” The marginal note reads “Persons present at proceedings in court may be ordered to give evidence.”

15 So the judge sitting on a matter has the power and discretion to call any person present to give evidence in the matter in the exercise of his judicial discretion if he considers that person's evidence relevant in the determination of an issue or the issues which he is called upon to decide. In the exercise of my judicial discretion at that stage of the proceedings in the circumstances of the case, I considered it right, just and proper to call on Mr. Cecil Byron, who was there present sitting in court to give evidence, and at that stage...