Boswell Williams Petitioner/Appellant v Lewis Floissac Plaintiff/Respondent [ECSC]

• Jurisdiction: St Lucia
• Judge: LEWIS, C.J.,CHIEF JUSTICE
• Judgment Date: 08 September 1971
• Judgment citation (vLex): [1971] ECSC J0908-1
• Docket Number: CIVIL APPEAL NO. 1 of 1971
• Court: Court of Appeal (Saint Lucia)
• Date: 08 September 1971

[1971] ECSC J0908-1

IN THE COURT OF APPEAL

Before:

The Honourable the Chief Justice

The Honourable Mr. Justice Cecil Lewis

The Honourable Mr. Justice Louisy (ag.)

CIVIL APPEAL NO. 1 of 1971

Between:

Boswell Williams

Petitioner/Appellant

and

Lewis Floissac

Plaintiff/Respondent

Appellant in person, M. Gordon for respondent.

LEWIS, C.J.

1 On the 7th October, 1970, a writ of execution was issued in suit No. 44 of 1967—Lewis Floissac, plaintiff against Boswell Williams, defendant. It was returnable on the 2nd February, 1971. The sheriff was instructed to seize and sell a portion of land known as Venus Estate in the quarter of Anse-la-Raye, the property of the defendant (appellant), Boswell Williams. The levy was duly made and the property was advertised for sale in the Gazette.

2 On the 22nd December, 1970, the appellant filed an application under art. 513 of the Code of Civil Procedure by which he asked the judge for leave to file an opposition to annul the seizure. If leave was granted, then on the filing of the opposition the sale would be stopped. In compliance with that article, his application was accompanied with an affidavit and with a copy of the proposed opposition to annul. The opposition to annul is permitted by art 519 which entitles a party whose immovable is seized to oppose the seizure or the sale thereof, whether his opposition is founded on matters of form or matters of substance.

3 The ground of the appellant's application was thatbetween the date of the judgment and the date of the issue of the writ of execution, the respondent by an assignment dated the 15th July, 1969, had transferred absolutely his rights in the judgment debt to a company known as Floissac Holdings Ltd., and therefore no longer had any right in the judgment debt and had no right to issue the writ of execution.

4 Affidavits were filed by the plaintiff and on behalf of Floissac Holdings Ltd., in which it was acknowledged that this judgment debt had been assigned as stated in the appellant's affidavit but Floissac undertook to hand over to Floissac Holdings Ltd. any monies that might be collocated to him as a result of the sale of the property and Floissac Holdings Ltd. said, through the company's secretary, that the writ had been issued with their knowledge and consent and they were quite satisfied that the sale should take place in pursuance of the levy.

5 The matter duly came before Mr. Justice Renwick for hearing, and there was argument before him as to whether the writ was properly issued, whether the name of the assignee would have been added or substituted or what otherwise was the proper way in which the writ should have been issued. Counsel for the plaintiff referred the judge to art. 418 of the Code of Civil Procedure which is as follows:—

"If the judgment does not order a thing that is purely personal to the judgment creditor, it may be executed in his name even after his death; if any contestation arises upon the execution, his representatives must intervene.

The writ of execution is issued upon a praecipe signed by...