Anthony Eugene Claimant/Judgment Creditor v Joseph Jn Pierre Defendant/Judgment Debtor [ECSC]
| Jurisdiction | St Lucia |
| Judge | EDWARDS, J. |
| Judgment Date | 21 February 2007 |
| Judgment citation (vLex) | [2007] ECSC J0221-1 |
| Date | 21 February 2007 |
| Court | High Court (Saint Lucia) |
| Docket Number | CLAIM NO. SLUHCV 2004/0097 |
IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CLAIM NO. SLUHCV 2004/0097
CLAIM NO. SLUHCV 2006/0708
and
Mr. Dexter Theodore for Claimant
Ms. Eugenie Francis for Applicants
Ms. Brender Portland and Mr. Leslie Prosper for the 1 st and 2 nd Respondents
Mrs. Veronica Barnard for the 4 th Respondent
The procedure under the Code of Civil Procedure Ch. 243 (St. Lucia) concerning the Judicial Sale of immovable property seized under a Writ of Execution is deficient, particular where it does not compel the judgment creditor to fix an upset price for the sale of such immovable property seized by the Sheriff, prior to a judicial sale.
Consequently, the Judgment Creditor/Claimant Mr. Anthony Eugene in this matter has unwittingly procured the judicial sale of immovable property under the statutory bidding process, resulting in 3.80 hectares/9.39 acres of land situate at Micoud registered as Parcel No. 1224B-53 being sold to Mr. Emmanuel Prevost Mande for $1,600.00. The seizure and sale of this property was carried out, to enforce a judgment debt of $19,684.77 inclusive of costs and interest, against the judgment debtor Mr. Joseph Jn Pierre.
The Application before the Court arises from the fact that this property in question was never owned by the Judgment Debtor Mr. Jn Pierre. The registered Proprietors of this property are unrelated to the Judgment Debtor, though 2 of them also have the name Joseph Jn Pierre. The 4 Registered Proprietors are Mr. Joseph Jn Pierre (No. 1), Jn Baptiste Jn Pierre, Anestaise Jn Pierre, and Mr. Joseph Jn Pierre (No. 2) who all hold the property as Trustees for sale. These Registered Proprietors are four of the 7 co-owners of the said property registered as Parcel No. 1224B-53 in the Land Register.
Section 62 of The Land Registration Act Cap 5:01 of the Revised Laws of St. Lucia 2001 states —
"(1) When any land is conveyed, transferred, devised, or devolves to 2 or more persons in their own right, such persons shall be deemed and taken to be proprietors in common.
(2) When any land is conveyed, transferred, devised or devolves to 4 or more persons the first 4 named shall hold the property on trust for sale."
By an Application filed on the 6 th November 2006 in Claim No. SLUHCV2004/0097/Mr. Joseph Jn Pierre (No. 1) and Mr. Joseph Jn Pierre (No. 2) are seeking the following order:
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1. That Joseph Jn Pierre (No. 1) also known as Joseph Louis and Joseph Jn Pierre (No. 2) be added as opposants to the Claim;
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2. That the Attorney General of Saint Lucia; Emmanuel St. Croix (Sheriff of the High Court), and Emmanuel Prevost Mande be added as Ancillary Defendants; and
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3. That the Judicial Sale dated 9 th August 2006 of the parcel of land registered in the Registry of Lands as Parcel 1224B 53 in the Registration Section of Micoud be and is hereby vacated.
The Application in Claim No. SLUHCV 2006/0708 filed on 11 th September 2006 had sought an order to annul the sale of the land. Further, that the 1 st, 2 nd and 3 rd Respondents pay the costs of this Application.
This Application was disposed of by the Master on 25 th October 2006 who ordered as follows — "Applicants absent, Application is premature, Refused No Order as to costs."
On 20 th December 2006 when this Application came before me for hearing, the file initially could not be found.
The Counsel for the Parties indicated to the Court that they were in the process of formulating a draft consent order. Having recalled the matter after standing it down, I was informed by Counsel that previously Counsel for the parties had all agreed that a Consent Order be made in the following terms —
"1. That Joseph Jn Pierre (No. 1) also known as Joseph Louis and Joseph Jn Pierre (No. 2) be added as opposants to the claim.
2. That the Attorney General of Saint Lucia, Emmanuel St. Croix (Sheriff of the High Court) and Emmanuel Prevost Mande be added as ancillary defendants.
3. That the Judicial Sale dated 9 th August 2006 of the parcel of land registered in the Registry of Lands as Parcel 1224B-53 in the Registration of Micoud be and is hereby vacated.
4. That the Attorney General shall refund to the Third Ancillary Defendant the sum of $1,600.00 not later than one month from the date hereof. If the said sum is not paid within one month then it shall bear interest rate of 6% per annum from 9 th August 2006 until payment.
5. That the Attorney General of Saint Lucia shall pay costs in the sum of $2,000.00 to the Opposants and in the sum of $1,500.00 to the Third Ancillary Defendant with one month from the date hereof."
It appeared however from this Draft Consent Order that Counsel for the Attorney General had withheld her signature.
Learned Counsel Ms. Portland was having second thoughts as to who should pay the costs, since in her view, the party who had identified Parcel 1224B-53 as the property of the Judgment Debtor should bear the costs. She was also questioning the validity or correctness of the Default Judgment.
Learned Counsel Mr. Theodore argued otherwise. He contended at the hearing that the claim was for a specified sum of money the Judgment Debtor had and received to his use, and that the Default Judgment was validly entered under the Rules. He did not address the issue as to its correctness. He contended further that pursuant to Article 501 of The Code of Civil Procedure Ch. 243 Mr. Emmanuel St. Croix and the Sheriff of the High Court had a duty to ensure that it was the Judgment Debtor's property that was seized.
I had reserved my decision until 21 st February 2007 promising to give a written decision, since I consider a review of the law concerning judicial sales to be of significant importance for St. Lucia.
I have considered the Affidavits which I had requested Counsel Mr. Theodore and Ms. Portland to file at the time of writing this decision.
The facts stated in the Statement of Claim probably can support an inference that the claim was for the sum of $7,310.00 for moneys had and received by the Defendant/Judgment Debtor to his use in my opinion. The pleaded facts also disclose that there was a contract between the Claimant and the Defendant.
The amount claimed was $7300.00
Court Fees was $132.50
Legal Practitioner's fixed costs on issue was stated as $986.85
(Daily Rate thereafter = $2.71 per day)
The Total Claimed was $9,179.35
Interest on the amount found to be due to the Claimant pursuant to Article 1009A was also claimed.
PART 12.4 of CPR 2000 states that "The Court Office at the request of the Claimant must enter judgment for failure to file an acknowledgment of service if —
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(a) the Claimant proves service of the claim form and statement of claim;
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(b) the Defendant has not filed —
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(i) an acknowledgment of service; or
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(ii) a defence to the claim or any part of it;
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(iii) the defendant has not satisfied in full the claim on which the claimant seeks judgment;
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(c) the only claim is for a specified sum of money, apart from costs and interest, and the defendant has not filed an admission of liability to pay all of the money claimed together with a request for time to pay it;
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(d) the period for filing an acknowledgment of service under rule 9.3 has expired; …
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(e) …"
PART 2.4 defines "claim for a specified sum of money" to mean -
"(a) a claim for a sum of money that is ascertained or capable of being ascertained as a matter of arithmetic and is recoverable under a contract; …"
The Affidavit of Service filed on 3 rd March 2004 disclosed that the Defendant was served on 17 th February 2004.
Having examined the Request for Default Judgment timely filed on 23 rd March pursuant to PART 12.4 (d), I note that the amount claimed is not $7,310.00 but $9,179.35. The Court Fees on the claim are stated as $32.50, Service Fees on claim are $165.00, Legal Practitioner's fixed costs on claim are $750.00. Interest from 11/10/01 to 25/02/05 is stated to be $1825.87. (Daily rate thereafter =$5.04 per day). Court fees on judgment is stated as $33.00, Legal Practitioner's fixed costs on judgment is $350.00, and the Total claimed is $12,345.72.
The amount for which judgment was requested to be entered was therefore $12,345.72.
The Deputy Registrar adjusted the interest claimed from 11/10/01 to 25/02/05 to be $3,338.72, ignoring the fact that the claim was for $7,310.00 and that interest had already been included in the $9,179.35 for period 10/11/01 to 3 rd February 2004. The Deputy Registrar also adjusted the Court fees on the judgment by increasing it to $55.00. The service fees on the claim was reduced to $100.00.
The Default Judgment entered on 25 th April 2005 for $13,800.57 is therefore obviously incorrect, as Learned Counsel Ms. Portland has pointed out.
I cannot set aside this default judgment under PART 13. 2 or 13. 3 of the CPR 2000 in my opinion. I also do not regard what has occurred as a clerical mistake, or an error arising in a judgment from an accidental slip or omission under PART 42.10.
I look to PART 26.9. This rule applies in my view since there is no rule or practice direction in this jurisdiction specifying what are the consequences where a judgment has been entered for more than the amount that can be validly claimed in circumstances as the instant judgment. The rules governing the substance of this default Judgment are to be found...
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... ... and it was the duty of the judgment creditor, not the judgment debtor, to apply to correct a ... as cited by Edwards J in Anthony Eugene v Joseph Jn Pierre and Joseph Jn Pierre ... ...