Flood v First Caribbean Int'l (barbados) Bank Ltd
| Jurisdiction | St Lucia |
| Judge | Belle, J. |
| Judgment Date | 19 September 2013 |
| Neutral Citation | LC 2013 HC 28 |
| Docket Number | SLUHCV 56 of 2006 |
| Court | High Court (Saint Lucia) |
| Date | 19 September 2013 |
High Court
Belle, J.
SLUHCV 56 of 2006
Petra Nelson for petitioner
Cheryl Goddard-DomIlle for respondent
Civil practice and procedure - Opposition pursuant to Article 381 and Article 517 of the Code of Civil Procedure — Whether the Opposition was filed out of time — Whether the petitioner was restricted to directly challenging the judgment — Whether the Petition was irregular for failure to attest to the truth of the allegations made in the Petition — Trust for sale.
Section 31 (2) of the Land Registration, Act, Cap. 5.01 of The Laws of Saint Lucia states that the Certificate of Title is only prima facie evidence of what appears on it. The parties to this action appear to agree that the respondents to the Opposition herein are trustees for sale as is stated on their extract from the Land Register exhibited in the action.
This assumption is also based on section 62(2) of the Land registration Act ( LRA), Cap 5.01 of the Revised Laws of Saint Lucia which provides:
‘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.”
Section 2 of the LRA defines trust for sale as: “trust for sale has the same meaning as in Article 2141 of the Civil Code.”
Article 2141 of the Civil Code states:
“Trust for sale in relation to land means an immediate binding trust for sale whether or not exercisable at the request or with the consent of any person, and with or without power at discretion to postpone the sale; “trustees for sale “means the persons (including a personal representative) holding land on trust for sale.”
On the 9th day of August 1996 Sarah Flood-Beaubrun, Beatrice Flood, John Fred Flood, and Frank Francis Flood executed a Hypothecary Obligation (“hypothec”) in which they entered into certain covenants with the First Caribbean International Bank. On 13th January 1997 the same respondents executed another hypothec with the said Bank (the Bank) and on 9th October 2000 the said parties executed a third hypothec with the Bank again entering into certain covenants with the Bank in doing so.
One of the Covenants under the said Hypothec executed by the respondents on 9th August 2006 numbered “4” states:
“The Principal Debtor and/or The Surety hereby agrees and accepts that by virtue of these presents The Principal Debtor is indebted to The Mortgagee to the sum of the Debts.”
The Covenant numbered “5” states:
“As security for the repayment of the Debts with interest thereon and at Agreed Rate the Principal Debtor and /or The Surety hereby mortgages and hypothecates unto The Mortgagee thereof accepting the Mortgaged Premises.”
Each subsequent hypothec contained covenants in similar terms, leaving it beyond doubt that the respondents became indebted to the Bank pursuant to all three hypothecs and to the extent stated in the three hypothecs which as the Bank's statement of claim states, is the sum of $232,425.75.
At all material times the Bank relied on the Certificate of Title disclosed and exhibited in the Claim to which this Petition relates. The description of the land hypothecated was:
“All that piece or parcel of land dismembered from the Vigie Estate situate in the quarter of Micoud measuring 5.43 acres or 2.20 hectares and registered in the Land Registry as Block Numbered 1423B Parcel 23. The said portion of land is also shown on the Land Registry Map to be bounded as follows:
NORTH: Partly by Parcels 5 and 6
SOUTH: Partly by Parcels 24 and 26
EAST: Partly by Parcels 2 and 3
WEST: Partly by Parcels 22 and 26
Together with all appurtenances and dependencies thereof.”
Sarah Flood Beaubrun et al. failed to pay the money due to the Bank under the said hypothec and became subject to the Bank's right to enforce payment pursuant to the hypothec.
The Bank obtained judgment against Sarah Flood — Beaubrun on 10th November 2006. Judgement was also obtained against the Third and Fourth Defendants on 10th November 2006. It is evident that the Bank never bothered to obtain judgment against the 2nd Defendant Beatrice Flood who had passed away on 21st September 2005 according to an affidavit filed by Sarah Lucy Flood — Beaubrun on 17th February 2006 exhibiting a death certificate of the said Beatrice Flood,
The Bank did obtain an order against the 4 Defendants to pay by instalments. This order was dated 26th April 2006.
Pursuant to the aforesaid judgments the Bank started the process of judicial sale of the land which is subject to the hypothec.
The action herein is an Opposition pursuant to Article 381 and Article 517 of the Code of Civil Procedure. These Articles permit the opposant/petitioner to file a Petition in opposition to any order or judgement of the court in which the opposant has interest. In proceeding in this manner counsel for the opposant argues that Mr Flood relies on the Privy Council Decision Noellina Maria Propsere ( Madorel v. Frederick Prospers et al # 18/2005. That decision does not go beyond establishing the right to take advantage of Article 381 of the Code of Civil Procedure (Cap. 243 of the Revised Laws of Saint Lucia). The authority does not go into the right to file an Opposition pursuant to Article 517 of the Code.
However, there are certain constraints to the right to file a Petition pursuant to Article 381 and indeed the ordinary requirements of pleading do apply.
Article 382 of the Code states as follows:
“The opposition is formed by means of a petition to the Court, which must contain the grounds of opposition, and proper conclusions, and must be served upon the parties in the cause, or upon the solicitors who represented them, if it is made within a year and a day after judgment. The truth of the allegations contained in the opposition must be sworn to, as in the case of an opposition to annul.”
We can glean from Article 382 that the Opposition must be brought by Petition to the Court which must contain the grounds of opposition etc. These words establish the form of pleadings which are required for the Opposition to be properly placed before the court.
Secondly, apart from form, there is a time constraint for the Article 381 Opposition. It must be brought within a year and a day after judgment. In this case Judgment was entered on 10th November 2006. This far exceeds a year and a day from the date of filing the Opposition which is 15th April 2011. However, even if it were found that the Opposition does not have to be brought within a year and a day after the judgment it must be understood that the Opposition has to be against the judgment itself. Section 382 speaks about “after judgment.”
In this case the Opposant opposes both the judgment and the enforcement of the judgment. opposant petitioner's counsel in her arguments stated that both the judgments and the Writ of Seizure and Sale are opposed.
This double barrelled attack however does not save the opposant/petitioner from the time restrictions in relation to the opposition to the judgments pursuant to Article 381 of the Code.
The opposant/petitioner's stated grounds for opposing the orders of the courts are apparently that the opposant has an interest in the matter in that he is a beneficiary of the estate of the second named defendant Beatrice Flood who died on 21st day of September 2005 prior to judgment being entered against her and he is also a co-owner and entitled to one ninth undivided share in and to the parcels ‘A’ land against whom the judgment has been wrongly registered.
Secondly, he opposes the judgments and the Seizure and sale of the property described as Block 1423B Parcel No.23 on the following grounds:
(i) That your petitioner's sister Sarah Flood Beaubrun as Principal Debtor took three loans for her sole benefit with the second, third and fourth defendants acting as surety.
(ii) The loans were secured by the following instrument:—(being the instruments mentioned earlier in this Judgment).
It is clearly not the law that anyone with an interest can file a Petition in Opposition in all or any circumstances. The Petitioner would have to plead a right to have been present and to make representation at the time when consideration was being given to entering the judgments which were entered. But he has not pleaded that he had any such right to participate in the litigation in relation to the payment of the debt by the defendants 1, 3 and 4 not including Beatrice Flood. Indeed what he has pleaded is that he was not bound by the hypothecs which were executed by the defendants. He has also pleaded that the order on the application to pay by instalments was made contrary to the court's rules because the claimant/respondent to this Opposition failed to have a representative of Beatrice Flood's estate appointed before having the court make the order.
The petitioner has not pleaded that he had no knowledge of the application for entry of judgment against the defendants. Neither has he claimed that there was no one capable of representing him and his 1/9th share at a hearing where any entry of judgment could have been opposed. Indeed it can be presumed that there was such a person involved in the proceedings, namely the three defendants against whom judgement was entered, but they failed to make any case to protect his interest.
These are serious failures in terms of establishing grounds of opposition to the judgements entered. Part of the problem understanding the pleadings is that the petition represents two oppositions of different kinds. In that regard counsel for the respondent argues that the petitioner should also be penalised for failing to swear the truth of the allegations. The latter is standard procedure in support of a...
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