EMTI Ltd et Al v Republic Bank (EC) Ltd

• Jurisdiction: St Lucia
• Judge: ‘Henry JA’
• Judgment Date: 17 September 2025
• Judgment citation (vLex): [2025] ECSC J0917-1
• Docket Number: SLUHCMAP2023/0003
• Court: Court of Appeal (Saint Lucia)

Between:

[1] EMTI Ltd

[2] EMAD Ward

[3] NADIA Ward

Appellants

and

Republic Bank (EC) Limited (Qua Successor to the Bank of Nova Scotia)

Respondent

[2025] ECSC J0917-1

Before:

The Hon. Mde. Margaret Price Findlay Justice of Appeal

The Hon. Mr. Trevor M. Ward Justice of Appeal

The Hon. Mde. Esco Henry Justice of Appeal

SLUHCMAP2023/0003

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

(CIVIL DIVISION)

Civil Appeal — Power of Attorney — Hypothecary Obligation — Personal Credit Agreement — Whether a Power of Attorney is ineffective to confer authority on an agent to make an agreement for loan facilities or pledge immoveable property on behalf of his principal — Articles 1603 and 1604 of the Civil Code of Saint Lucia — Ratification by principal of the acts of an agent — Whether the Power of Attorney is incapable of ratification — Whether judge erred in dismissing the no case submission

EMTI Ltd. is a company registered in Saint Lucia by Registration No. C287/2016 by its directors Mr. Emad Ward and Mrs. Nadia Ward (“the Wards”). By Claim Form dated 7 ^th August 2020 and Amended Claim Form dated 21 ^st January 2021 the respondent, Republic Bank (EC) Limited (“the Bank”) (Successor to the Bank of Nova Scotia (“BNS’)) filed a claim against EMTI Ltd. and the Wards who they alleged negotiated and secured loan facilities through their agent Mr. Zayad Ward, for the recovery of the principal balance of EC$1,135,156.96 that BNS loaned to the company and to Mr. Ward on Residential Mortgage Loan No. 91700, the repayment of which was allegedly guaranteed by Mrs. Ward. The Bank relied on Applications for Credit signed by Zayad Ward on 17 ^th January 2017, a Personal Credit Agreement (“PCA”) signed by Zayad Ward on 28 ^th February 2017 and a Hypothecary Obligation registered at the Land Registry on 25 ^th August as Instrument No. 3337 of 2017. These were said to be executed by Zayad Ward pursuant to two Powers of Attorney (“PA”) executed on 23 ^rd January 2017 and respectively registered on 8 ^th and 10 ^th February 2017 and ascribed registration numbers PA75/2017 and PA89/2017 respectively. The loan was granted to the company and Mr. Ward and was secured by a Hypothecary Obligation registered on 25 ^th August 2017 at the Land Registry against a residential property registered in the name of EMTI Ltd. in favour of BNS. BNS disbursed the loan funds of EC$1,620,000.00 to a law firm that was acting for the company and the Wards at that time. The law firm acknowledged receipt of the monies by written receipt dated 3 ^rd March 2017.

By Banking Business Vesting Order in 2019, the assets and liabilities of BNS were transferred to Republic Bank (EC) Limited which effectively conveyed to the Bank all of BNS' interests, right and title arising from the transactions between the company, the Wards and BNS.

The respondent sought to recover a total sum of EC$1,342,800.57 including interest, addon charges, accrued interest on the principal, interest on add-on charges and late fees. The company and the Wards filed a joint Defence and an Amended Defencein which they denied that EMTI Ltd. and Mr. Ward were co-borrowers of the residential mortgage loan or that Mrs. Ward was a guarantor of the loan facility. They asserted that the company was the only party to the Hypothecary Obligation and denied that the Bank is entitled to the sums claimed or any sum.

The matter proceeded to trial and at the close of the Bank's evidence, the appellants made a submission of no case to answer. They argued that the PAs were: (a) general in nature and contained no express power authorising Zayad Ward to obtain loans or hypothecate property and such power cannot be implied; and therefore, (b) non-compliant with Articles 1603 and 1604 of the Civil Code and void. When the trial resumed the following day, they were placed on their election whereupon they signified through their legal practitioner that they intended to adduce no evidence at the trial and wished to stand on their no case submission. By judgment dated 4 ^th October 2023, the trial judge dismissed the no case submission and entered judgment for the Bank against the company and the Wards and awarded costs to the Bank.

Dissatisfied with the learned trial judge's decision, the appellants, on 14 ^th November 2023, filed a notice of appeal on a multiplicity of grounds all of which attack the learned judge's reasons for dismissing the no case submission. The grounds of appeal reveal that the singular issue for consideration is whether the learned judge erred in law or in fact in dismissing the no case submission and thereby rejecting the appellants' contention that the PAs under which Zayad Ward purported to negotiate and secure a loan on behalf of the company and Emad Ward with Nadia Ward as guarantor, were ineffective and void in view of Articles 1603 and 1604 of the Civil Code.

Held: dismissing the appeal, affirming the orders of the learned trial judge and ordering costs to the respondent to be assessed if not agreed within 21 days of the date of this judgment, that:

• 1. It is well settled that when a defendant makes a no case submission in civil proceedings, the trial judge is only required to decide whether the claimant has made out his, her or its case on a balance of probabilities based on the evidence adduced, before the defendant is put to his election and opts to call no evidence. In determining this question, the trial judge must be satisfied that the evidence establishes a prima facie case, even if it is a weak one. In making such a determination, the judge is entitled to draw adverse inferences from the defendant's decision to rest on his election.

  Elena Collongues v Andrew Lych and Olga Mirimskaya BVIHCVAP2007/0001 (delivered 14th July 2008, unreported) followed.

• 2. At the appellate level, the appellate court's function when reviewing a judge's ruling on a no case submission is to evaluate the evidence to determine whether there was evidence on which the judge could find on a balance of probabilities that a prima facie case had been made out for the defendant to answer.

• 3. Acquiring title by alienation does not encompass applying for, obtaining or guaranteeing a loan or other advances from a financial institution. It follows that the action of borrowing is not caught by Article 1603 or 1604 of the Civil Code. Neither is guaranteeing such a facility. A hypothec is defined by Article 1908 as a charge on real estate. This would mean that the Hypothecary Obligation signed by Zayad Ward fits within the description of alienation and the definition of hypothec. However, the PCA does not. There is nothing on the PCA that creates a charge on any immoveable property of EMTI Ltd., Emad Ward or Nadia Ward. Therefore, the stipulation in Article 1603 that a relevant agency must be express, would not apply to the PCA by which the appellants respectively applied for and secured loan facilities from BNS and guaranteed the repayment of those sums. Accordingly, their contentions that the PCA is a nullity and void for non-compliance with Articles 1603 and 1604 are not borne out. Additionally, the learned judge was and the Court is entitled to have regard and recourse to the contents of the PCA for the purposes of determining whether the Bank has established a prima facie case against EMTI Ltd. and Emad Ward that they authorised Zayad Ward to obtain the subject loan on their behalf and in Nadia Ward's case that she authorised him to guarantee the loan and that Zayad Ward did act on those instructions.

  Articles 1603, 1604 and 1908 of the Civil Code of Saint Lucia Cap. 4.01 of the Laws of Saint Lucia applied.

• 4. Article 1603 of the Civil Code clearly provides that a power of attorney may be special by reason that it is given for and expressed to be for a specific business or purpose or it may be general in which case it applies to all the principal's affairs and is limited to administration. As a qualifier, it is explained that where a power of attorney is given for the purpose of acts of ownership including alienation and hypothecation, this must be express. No specific form of words is prescribed to effect the express hypothecation and alienation objectives. It follows that if the power of attorney captures the essential features or elements of alienation or hypothecation as the case may be, that would suffice for the purpose of such expression.

• 5. In the case at bar, while the PAs contained a number of broad powers, the entire document, when read as a whole, contains specific powers to facilitate the conducting of banking business, acquiring real estate by purchase, disposing of interests in such real estate and dealing with banks as necessary to accomplish those specific objectives. It appears to be geared primarily towards empowering Zayad Ward to buy real estate and if necessary, dispose of interests in such real estate and deal with banks as necessary to achieve those aims. The PAs therefore seem to have been conceived for that specific purpose. Accordingly, the initial question of whether Zayad Ward was empowered by the PAs to a) apply for, b) secure debt obligations, or c) charge the subject property to the bank on behalf of EMTI Ltd. and Emad Ward is answered in the affirmative. Similarly, for the same reasons, he was likewise authorised by PA 89 to guarantee any such loan repayment obligations on Nadia Ward's behalf.

• 6. Article 1627 of the Civil Code makes it pellucid that the principal is bound even in relation to acts of an agent that exceed the power conferred by a PA, if the principal has ratified them. Applying that provision to the facts of this case, this means that to the extent that Zayad Ward may have exceeded the authority conferred on him expressly or implicitly by the PAs, he is recognised by law under the express wording of Article 1627 to have validly performed such acts on behalf of EMTI Ltd. and the Wards if they subsequently...