[1] Marguerite Desir [2] Marguerite Desir (Qua Executrix of the Will of the late Albertha Bella Butcher) Appellants/Applicants v Sabina James Alcide Respondent [ECSC]

• Jurisdiction: St Lucia
• Judge: Edwards, C.J.
• Judgment Date: 14 December 2011
• Judgment citation (vLex): [2011] ECSC J1214-4
• Court: Court of Appeal (Saint Lucia)
• Docket Number: HCVAP 2011/030
• Date: 14 December 2011

[2011] ECSC J1214-4

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Ola Mae Edwards Chief Justice [Ag.]

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mde. Gertel Thom Justice of Appeal [Ag.]

HCVAP 2011/030

Between:

[1] Marguerite Desir

[2] Marguerite Desir (Qua Executrix of the Will of the late Albertha Bella Butcher)

Appellants/Applicants

and

Sabina James Alcide

Respondent

Application for stay of execution — Appellants applying for stay of an order affecting persons who are not parties to the claim — Jurisdiction of the Court to grant a stay where there is a third party interest or property claim — Rule 42.12 of the Civil Procedure Rules 2000 — Articles 381-383 of the Code of Civil Procedure, Cap. 243, Revised Laws of Saint Lucia 1957 — Practice and procedure where the legal practitioner in the appellate proceedings is different from the legal practitioner on record at the trial

The appellants appealed the decision of the learned judge in the court below and the applicant, Ms Desir, sought a stay of execution of the order which improbated a duly registered Deed of Sale dated 10^th April 2007. The trial judge found that the Deed was purportedly executed by the elderly, sick, deceased Albertha Bella Butcher as vendor (if at all), without independent legal advice. The property consisted of 0.8 hectares of land at Massade. The purchaser was Commercial Warehouse Limited, a company which was incorporated on 8^th January 2007. The applicant, Ms Desir, owns 50% of the shares in this company, while Mrs. Butcher, before her death, owned the other 50%. The Deed was purportedly executed 3 days before Mrs. Butcher died, in the presence of the Notary Royal who was also legal advisor for the company and Ms. Desir. The Deed of Sale was signed on Mrs. Butcher's behalf (as her motor skills were impaired and her handwriting was allegedly illegible) by another Notary Royal practising in the State of St Lucia, in the presence of the Notary Royal acting for the purchaser. The property was purchased for $644,000.00, though its assessed value by the Inland Revenue Department for the tax year 2005 and its market value, was $7,442,726.00.

The judge found that: (i) Ms. Desir assumed a dominant and predominant role in the personal business and financial affairs of Mrs. Butcher shortly after her husband, Mr. Butcher, died on 1^st November 2005; (ii) the Notary Royal and legal advisor for Ms. Desir and the company, featured prominently in other questioned transactions between Ms. Desir and Mrs. Butcher, from which Ms. Desir benefited handsomely; (iii) from the nature, value and implications of these questioned transactions, Mrs. Butcher did not get any independent legal advice which she clearly needed; and (iv) Mrs. Butcher was incapable of competently engaging or giving her true consent to the matters which she was called on to deal with, without independent legal advice.

The grounds of the stay application included that should execution of the judgment proceed, it will cause ruin to Commercial Warehouse Limited and substantial prejudice to Bank of Saint Lucia Limited for which the appellant Ms. Desir will be held responsible, resulting in serious prejudice to Ms. Desir. The property is mortgaged to Bank of Saint Lucia with a mortgage balance of $566,225.16 as at 10^th December 2011.

Held: refusing the application for stay of execution and awarding costs to the respondent to be agreed, and failing agreement, to be assessed, that:

• 1. The court's jurisdiction to grant a stay is based upon the principle that justice requires that the court should be able to take steps to ensure that its judgments are not rendered valueless. The essential question for the court is whether there is a risk of injustice to one or both parties if it grants or refuses a stay. Further, the evidence in support of the application for stay of execution should be full, frank and clear. The normal rule is for no stay and if a court is to consider a stay, the applicant has to make out a case by evidence which shows special circumstances for granting one. The mere existence of arguable grounds of appeal is not, by itself, a good enough reason.

  Hammond Suddard Solicitors v Agrichem International Holdings Limited [2001] EWCA 2065 applied; Peggy Huggins and Others v Jozeyl Morris Saint Vincent and the Grenadines HCVAP 2008/009 (delivered 24^th February 2009, unreported) followed; Section 15 of the Eastern Caribbean Supreme Court (Saint Lucia) Act Chap. 2.01, Revised Laws of Saint Lucia 2008 cited; Rule 62.16 of the Civil Procedure Rules 2000 cited.

• 2. In the absence of any evidence establishing that Commercial Warehouse Limited and the Bank of Saint Lucia have filed any third party interest or property claim in these proceedings or in the court below, the law and rules governing the available redress to third parties who have an interest in property which is the subject of a judgment or order and are not parties to the claim, are to be found in Articles 381-383 of the Code of Civil Procedure, and CPR 42.12.

  Articles 381-383 of the Code of Civil Procedure Cap. 243, Revised Laws of Saint Lucia 1957 considered and applied; Rule 42.12 of the Civil Procedure Rules 2000 considered and applied.

• 3. The inherent jurisdiction of the Court to grant a stay in the circumstances ought not to be invoked because of the existing rules in Articles 381-383 of the Code of Civil Procedure and CPR 42.12, which adequately cover the issue. Having weighed the advantages and disadvantages to both parties and taken into account the applicable principles, and despite an arguable case being made out by the appellants/applicants in their application and amended grounds of appeal, no stay of the order should be made.

• 4. It is consistent with good practice and the overriding objective of the Civil Procedure Rules 2000 for a new legal practitioner in appellate proceedings to file a notice of acting to facilitate the service of documents, effective case management of interlocutory proceedings at the appellate level, and to ensure that the appeal is dealt with expeditiously.

ORAL JUDGMENT

1 Edwards, C.J. [AG.]: This is a judgment of the Court. The appellants/applicants,1 on 30^th September 2011, appealed against the decision of Georges J. [Ag.] delivered on 22^nd August 2011, after a protracted acrimonious trial lasting 7 days, when he heard the testimony from the respondent's2 8 witnesses and the appellants'/applicants' 9 witnesses. The learned trial judge resolved the credibility issues raised by the witnesses in favour of the respondent,

applied the law governing undue influence, and made findings of fact which primarily dominate the complaints raised in the Amended Notice of Appeal. A few of the grounds complain that the judge erred in law.

Edwards, C.J.

The Application for Stay of Execution

2 We heard the appellant's application for stay of execution filed on 26^th October 2011. This application seeks an order that execution of the orders of the Court given in the judgment be stayed pending the determination of this appeal and for the costs of this application to be costs in the appeal.

3 This Court has power pursuant to section 15 of theEastern Caribbean Supreme Court (Saint Lucia) Act3 and Rule 62.16(1)(b) of the Civil Procedure Rules 2000 ("CPR") to stay execution of a judgment pending an appeal. We have particularly borne in mind that our jurisdiction to grant stay is based on the principle that justice requires that the court should be able to take steps to ensure that its judgments are not rendered valueless. The essential question for the court is whether there is a risk of injustice to one or both parties if it grants or refuses a stay; and the evidence in support of the application should be full, frank and clear.4 The normal rule is for no stay and if a court is to consider a stay, the applicant has to make out a case by evidence which shows special circumstances for granting stay. The court must hold a balance and give full and proper weight to the starting principle that there must be a good reason to deprive a successful claimant of the right to enforce her judgment. The mere existence of arguable grounds of appeal is not enough, by itself, a good reason.5

4 We also had the benefit of written skeletal arguments from counsel for the parties. However, learned counsel Mr. Foster, at the hearing, informed us that the applicants are really seeking a stay of execution of the order made at paragraph 117 of the learned judge's judgment which improbated a Deed of Sale dated 10^th April 2007, registered in the Land Registry as Instrument No. 2849 of 2007 on 22^nd May 2007. The trial judge's primary reason for improbating the Deed is that it was purportedly executed by the Vendor Bella Butcher (if at all) without independent legal advice. Noticeably, this Deed of Sale was registered in the Land Registry over 37 days after the death of Mrs. Butcher, who died on 13^th April 2007. The property purportedly conveyed under the Deed of Sale consists of 0.8 hectares and is situate in Massade in the Registration Quarter of Gros-Islet known as Block 1257B Parcel No. 6. The purchaser was Commercial Warehouse Limited, which was incorporated on 8^th January 2007. The property was purchased for $644,000.00, though its assessed value by the Inland Revenue Department for the tax year 2005 and its market value was $7,442,726.00. Commercial Warehouse Limited obtained a loan in the sum of $881,000.00 from Bank of Saint Lucia on 10^th April 2007 and the property Block 1257B Parcel No. 6 was mortgaged as security for payment of the loan.

5 The other orders that the learned judge made, relate to 3 bank accounts and other property of the deceased Bella Butcher which the respondent alleged were appropriated by the appellant/applicant Ms. Desir to her own use. The judge found that Ms. Desir exerted undue influence to procure her...