First Caribbean International Bank (barbados) Ltd formerly Cibc (caribbean) Ltd Applicant/ Judgment Creditor v (1) Jacob Morille Respondent/ Judgment Debtor (2) Anthony Du Boulay Respondent/ Purported Purchaser (3) Arthur Isidore Respondent/ Sheriff of the High Court [ECSC]
| Jurisdiction | St Lucia |
| Judge | Hariprashad-Charles J |
| Judgment Date | 17 September 2004 |
| Judgment citation (vLex) | [2004] ECSC J0917-2 |
| Court | High Court (Saint Lucia) |
| Docket Number | Claim No. 432 of 1994 |
| Date | 17 September 2004 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE (CIVIL)
Claim No. 432 of 1994
LAW OF CIVIL PROCEDURE…CIVIL CODE OF SAINT LUCIA…CODE OF CIVIL PROCEDURE (CCP)…WHETHER SHERIFF FAILED TO COMPLY WITH FORMALITIES OF SALE AS REQUIRED BY CCP…ARTICLE 600…WHETHER ATTORNEY-AT-LAW CAN BID AT JUDICIAL SALE PERSONALLY OR FOR THIRD PARTY…MEANING OF LITIGIOUS RIGHTS.
WHETHER SHERIFF HAS DUTY TO PROTECT BANK WHERE NO UPSET PRICE IS SET…BANK AS JUDGMENT CREDITOR
IS IT INEQUITABLE FOR PROPERTY ALLEGEDLY WORTH $1.0 M. TO BE SOLD AT JUDICIAL SALE FOR $25,000.00?
VACATING OR ANNULLING OF SHERIFF'S SALE
On 22nd January 2004, the First Caribbean International Bank (Barbados) Limited [formerly CIBC (Caribbean) Limited] ("the Bank") as Judgment Creditor filed a Petition seeking an order to declare judicial sale held on 14th January 2004 illegal, null and void. I heard arguments on 14th June 2004 and the following day, I dismissed with Costs the Petition. I gave detailed oral reasons for my decision which I have now reduced into writing.
By a judgment of the High Court dated 10th October 1995, Mr. Morille, the Judgment Debtor was ordered to pay to the Bank, the Judgment Creditor the sum of $367,524.00 together with interest at the rate of 14% per annum from 3rd May 1994. On 23rd October 1995, the said judgment was registered at the Registry of Deeds and Mortgages in Volume 148A, No. 172932 and as such, became a judicial hypothec over Mr. Morille's property.
Mr. Morille having made no payments towards satisfaction of the judgment debt, the Bank sought to recover the debt by way of issuing a Writ of Execution against his property. Consequently, a Writ of Execution was issued on 16th June 2003 commanding the Sheriff to put up for sale by public auction certain property of Mr. Morille ("the property").
The Writ was made returnable on 23rd January 200The Sheriff by due process seized the property and advertised it for sale in three consecutive issues of the Saint Lucia Gazette dated 3rd, 10th and 17th November 2003. A few weeks prior to the publications in the Gazette, Mr. Morille made an application to fix an upset price for the property but he withdrew it on 6th November 2003.
The auction took place on Wednesday, 14th January 2004 as directed under the Writ of Seizure and Sale. The sale commenced at about 10.00 a.m. and ended at about 11.05 a.m. There were three persons present and bidding namely: Rudolph Rambally, Clarence Rambally, an attorney-at-law as agent for Elford St. Prix and Mr. Anthony Du Boulay. The last and highest bid was $25,000.00 given by Mr. Du Boulay. The Sheriff accordingly adjudged the property to Mr. Du Boulay.
After the judicial sale, the Bank quickly moved to challenge the legality of the bidding. Counsel have all agreed that the following issues arise for determination namely:
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(a) Whether the Sheriff failed to comply with the formalities of sale as required by Article 600 of the Code of Civil Procedure (CCP)? Whether an attorney-at-law is prohibited from bidding on behalf of a third party at a judicial sale?
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(b) Whether the Sheriff has a duty to protect the interest of the Bank by obtaining a purchase price of the immovable property at the judicial sale sufficient to discharge all monies due and owing under the judgment debt?
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(c) Whether the Sheriff failed to pursue his duties diligently?
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(d) Whether it is inequitable to allow a property that is allegedly worth about $1.0 million to be sold for $25,000.00?
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(e) Whether the formalities of the seizure were not adhered to pursuant to Articles 501 and 502 since Mr. Morille was not personally served with the minutes of seizure?
Before I proceed to address the main issues raised at the trial, I need to address firstly an ancillary issue which was canvassed by the Bank. Mr. Richelieu appearing as Counsel for the Bank argued that legal authorities have no place in the interpretation of the Civil Code. He submitted that within the confines of the Code is to be found the method of interpreting the Code. In support of his submission, he cited the case ofBank of England v Vagliano Brothers [1891] A.C. 107.1 In that case, the simple issue was whether the claimant's bankers had paid away the claimant's money under such circumstances as enable him to refuse to acknowledge the payments on his behalf. Lord Halsbury LC delivered the judgment of the
Court. I have carefully read the judgment and I see nowhere in his judgment anything to support the argument advanced by Learned Counsel. This argument therefore fails.Article 600 of the Code of Civil Procedure Chapter 243 of the Laws of Saint Lucia 1957 ("CCP") provides that "no sale can take place unless there be three persons present and bidding exclusive of the Sheriff and his officers."
Mr. Richelieu submitted that there was no quorum because one of the persons present and bidding was an attorney-at-law who is a prohibited bidder under the law and as such, there were only two eligible bidders. I understood Counsel to be saying that attorneys-at-law can never bid at judicial sales. In support of his submission, he relied on articles 1395, 1490 and 1491 of the Civil Code Chapter 242 of the Laws of Saint Lucia 1957.
Article 1395 reads as follows:
"Judges, advocates, attorneys, clerks, sheriffs and other officers connected with courts of justice, cannot, either in their own name or through third parties, buy litigious rights which fall under the jurisdiction of the Court in which they exercise their functions."
Article 1490 provides as follows:
"When a litigious right is sold, he against whom it is claimed is wholly discharged by paying to the buyer the price and incidental expenses of the sale, with interest on the price from the day the buyer has paid it."
Article 1491 provides a definition for litigious right as:
"A right is held to be litigious when it is uncertain, and disputed or disputable by the debtor, whether an action for its recovery is actually pending or is likely to become necessary."
Mr. Hilford Deterville QC appearing for the purported purchaser, Anthony Du Boulay submitted that article 1395 prohibits the purchase of litigious rights by attorneys and other officers connected with courts of justice. A "litigious right" is a right which is uncertain or in dispute. He asserted that what was being offered for sale was Mr. Morille's property. Hewas registered as the proprietor with absolute title. There was nothing uncertain and disputed or disputable about what was being sold or purchased since the dispute between the parties was long settled by a judgment of the court dated 10th October 1995.
The issue of the purchase of litigious rights came up for consideration by the Supreme Court of Canada in the case ofQuebec, Montmorency and Charlevoix Railway Co. v Gibsone (1899) 29 S.C.R. 3402. The Court applied article 1485 of the Civil Code of Quebec which is similar to article 1395 of our Civil Code. It was held, that since the respondent who was an attorney practising in the courts of the district of Quebec, "knew that the land was in use as part of the line of a railway in actual operation, he must be taken to know that he could not make his purchase effectual without litigation, which he must therefore contemplate."3 The Court continued on the same page:
"The character of litigiosity is said to apply to an immovable when a vendor, not having the actual detention of it at the time of the sale, is unable to deliver the possession."
In my opinion, the issue in this case is whether the Sheriff is able to deliver up possession of the property to the purchaser. The facts shows that the sale of the immovable property in question took place as a result of a judicial act and the Sheriff had possession of the property because it was properly seized. Therefore, the Sheriff was in a position to deliver up possession of the property to Mr. Du Boulay as a sheriff's sale does not have the character of litigiosity which would fall within the exclusion laid down in article 1395 and I so hold. In fact, a sheriff's sale confers more rights upon a purchaser than an ordinary sale.4
Learned Queen's Counsel argued that in any event, the attorney-at-law who was present and bidding was not "purchasing in his own name" nor was he purchasing "through a third party." He was purchasing as proxy for another person which action is permissible under the law.
On behalf of the Bank it was urged that not only is an attorney-at-law prohibited from bidding, he cannot even act as proxy for another person.
This is an argument I cannot accept, and if it were accepted there would in my view be an unacceptable discrepancy with the law because article 529 provides that "verbal bids may be made by proxy". It is only if the bidder is unable to furnish the Sheriff with the names, quality and residence of his principal, is he held to have purchased in his own name (Article 538). In the instant case, the bidder provided the name of his principal at the outset.
In support of his argument that an attorney-at-law can purchase at a judicial sale but is only prevented from purchasing 'litigious rights,' Mr. Deterville cited section 43 (1) of the Legal Profession Act, No. 31 of 2000. The section states as follows:
"An attorney-at-law shall not —
(a) act as an agent in any action or in any matter in bankruptcy or in relation to any business which can only be transacted by a...
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