Marius Wilson Appellant v [1] Julienne James [2] Andrew Wilson [3] Melchaid Wilson Respondents [ECSC]

• Jurisdiction: St Lucia
• Judge: EDWARDS, J.A.,Justice of Appeal,Chief Justice,Ola Mae Edwards,Hugh A. Rawlins,Rita Joseph-Olivetti,Justice of Appeal [Ag.]
• Judgment Date: 06 July 2009
• Judgment citation (vLex): [2009] ECSC J0706-2
• Date: 06 July 2009
• Docket Number: HCVAP 2009/006
• Court: Court of Appeal (Saint Lucia)

[2009] ECSC J0706-2

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Hugh A. Rawlins Chief Justice

The Hon. Mde. Ola Mae Edwards Justice of Appeal

The Hon. Mde. Rita Joseph-Olivetti Justice of Appeal [Ag.]

HCVAP 2009/006

Between:

Marius Wilson

Appellant

and

[1] Julienne James

[2] Andrew Wilson

[3] Melchaid Wilson

Respondents

Appearances:

Mr. Marius Wilson in person

Mr. Hilford Deterville for the Respondents

Application to adduce fresh evidence in civil appeal — notorial instruments — contradicting contents of deeds of sale outside of improbation proceedings — Articles 1141 — 1142 of Civil Code of St Lucia — Section 56(1) Land Registration Act — whether criteria for granting application satisfied

Upon a claim for improbation of a deed of sale relating to Parcel 2032B 12, the court after improbating the deed made orders including that the appellant account for his dealing with four (4) of the parcels carved from Parcel 2032B 12. The appellant accounted that he had subdivided the parcel into five (5) parcels and had disposed of four (4) parcels by conveying them to persons including Clarence Rambally and Clarencia Stephen. He stated that he had received no consideration for any of these conveyances despite the contents of the deeds of sale which clearly stated that the appellant as proprietor had sold the land for stipulated prices.

With regard to the parcel which were conveyed to Clarence Rambally and the parcel conveyed to Clarencia Stephen, the appellant stated that he was informed by the trustees for sale and Mr. Rambally that payment had been made by Mr. Rambally in 1982 to the trustees for sale in cash and kind.

Having appealed the order of Georges J of 4 ^th February 2009 rejecting this account, the appellant filed an application to adduce fresh evidence from two (2) witnesses and to rely on fresh documentary exhibits discovered by him after 4 ^th February 2009 which were a deed of sale registered in 1982 and a default judgment entered and registered in 1983. This fresh evidence he contended would establish that two (2) of the respondents had received payments from Mr. Rambally in 1982 for their respective 1/8 ^th share and were not entitled to bring the claim against him; and that he had mistakenly or fraudulently conveyed all of the land to Mr. Rambally because of Mr. Rambally's non-disclosure.

Held: dismissing the application and awarding costs to the respondents to be assessed on submissions by counsel for the respondents and the appellant within 14 days from the delivery of this judgment.

• 1. "That there are three conditions which must be fulfilled; first, it must be shown that the evidence could not have been obtained with reasonable diligence for the use at the trial; second, the evidence must be such that if given, it would have an important influence on the result of the case, although it need not be decisive third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible."

  Ladd v Marshall [1954] 1 WLR 1489 followed.

• 2. That the appellant has failed to fulfill conditions 1 and 2 where:

  • (i) the 1982 registered deed of sale and the Default Judgment entered and registered in 1983 are public records which the appellant must be deemed to have notice of from the date of their registration;

  • (ii) the deed that the appellant seeks to rely on as fresh evidence, could have been made available to the learned judge in the court below because his witness, Mark Wilson who is also his father, was a party to the transaction in this deed of 1982;

  • (iii) having regard to section 56(1) of the Land Registration Act Cap 5:01 and Articles 1141 and 1142 of the Civil Code the fresh evidence sought to be adduced cannot be used to contradict the contents of the two (2) deeds of sale for which no improbation proceedings have been brought by the appellant as the deeds of sale are notarial instruments and authentic writings and their contents are deemed to be true until set aside by improbation proceedings.

EDWARDS, J.A.

1 This is an application to adduce fresh evidence from 2 witnesses Ms. Irene Cadasse and her son Mr. Joseph Cadasse at the future hearing of the appeal against the decision of Georges J delivered on 4 ^th February 2009. In this decision Georges J rejected the appellant's evidence and ordered him, among other things, to pay each of the respondents for the value of their 1/8 ^th share in parcel 2032B 12 situate at Trous Gras Estate. The appellant had subdivided this parcel into 5 parcels, retained one parcel for himself; while disposing of the other 4 parcels by deeds of sale. The appellant is an attorney at law who is related to the respondents, and the property comprised in parcel 2032B 12 is family land. The appellant's case is that he never received any consideration for the conveyances in the other 4 deeds of sale; and the 2 ^nd and 3 ^rd respondents cannot claim for their 1/8 ^th shares in parcel 2032B 12 as he had acted in conformity with the instructions of the trustees for sale in dealing with the property.

Background Facts

2 The respondents brought a claim against the appellant for improbation of the deed of sale for parcel 2032B 12, and consequential relief including payment of 1/8 ^th share in the Trous Gras Estate to each respondent. The respondents contended that the deed of sale for parcel 2032B 12 which was registered on 29 ^th March 1993, was allegedly executed by the respondents on 25 ^th March, 1993 and was not executed in the presence of Esther Greene Notary Royal in accordance with the law. Under this deed of sale the family land was purportedly transferred to the appellant as purchaser for the sum of $10,000.00. The appellant thereafter subdivided the family land into the following parcels: (a) parcel 2032B 17, (b) parcel 2032B 19, (c) parcel 2032B 21 (d) parcel 2032B 26 and (e) parcel 2032B 27.

3 The appellant conveyed to his sister Kate Wilson for $10,000.00 as purchaser of parcel 2032B 19, by a registered deed of sale executed on 12 ^th October 1995. By another registered deed of sale the appellant conveyed to Kerby Allain and Cecilia Allain as purchasers of parcel 2032B 17 comprising 1.16 acres of land for the sum of $47,250.00 on 12 ^th August 1996.

4 Parcel 2032B 26 comprising 7.21 acres was transferred by the appellant to Clarence Rambally and Josephine Rambally as purchasers for the sum of $119,000.00 by registered deed of sale executed on 3 ^rd August 1999; but the whole of the purchase price was not paid at the time; the sum of $34,000.00 which was noted as outstanding in the deed was realized on 10 ^th September 1999 when the appellant acknowledged receipt of the payment of that balance. Another parcel 2032B 27 comprising 23.97 acres of land was transferred to Clarencia Stephen as purchaser for the sum of...