Monplaisir v Lonn et Al; West Indies Development Corporation Ltd v Marigot Development Ltd et Al

• Jurisdiction: St Lucia
• Judge: Peterkin, C.J.
• Judgment Date: 01 January 1980
• Neutral Citation: LC 1980 CA 1
• Docket Number: Civil Appeal No. 1 of 1980
• Court: Court of Appeal (Saint Lucia)
• Date: 01 January 1980

Court of Appeal

Peterkin, C.J.

Berridge, J. A.

Robotham, J. A. (Ag.)

Civil Appeal No. 1 of 1980

Monplaisir

and

Lonn et al

West Indies Development Corporation Ltd.

and

Marigot Development Ltd. et al

Appearances:

V. Cooper for respondent/appellant

H. Deterville for the petitioner/respondent

Judicial sale - Bid dispute

Facts: This was an appeal from the decision of the trial judge setting aside a judicial sale held at the Registry of the High Court. Judgment in default was entered against Marigot Development Ltd. the defendant/respondent and by Writ of Execution its immovable property was seized and the sale of these properties by the sheriff by public auction was held in the registry.

Held: The trial judge drew the wrong inference from the evidence and so arrived at the wrong conclusion. The petitioner failed to satisfy the court on the balance of probabilities concerning the truth of the allegations made in his petition. Appeal allowed. Sale declared to be valid.

Peterkin, C.J.

1 This is an appeal from the judgment of Renwick, J. granting granting the prayer contained in the Petition of the petitioner/respondent and setting aside the judicial sale held at the Registry of the High Court on the 12th August, 1977. The facts and circumstances are as follows:–

2 On 27th April, 1976, Peter Lonn, Sally Kaps and Lawrence Lewis entered judgment in default of appearance against Marigot Development Ltd in the sum of $129,458.53 in the currency of Canada with interest thereon from July 14, 1975, until judgment at 6% per annum, and $60.00 costs. By Writ of Execution dated 2nd June, 1977, the immovable property of the Marigot Development Ltd was seized, and the sale of these properties by the Sheriff by public auction was held in the Registry on the 12th of August, 1977. It is this judicial sale which the petitioner/respondent, the West Indies Development Corporation Ltd, sought by petition filed in the origin suit to have the court set aside.

3 Prior to the 12th August, 1977, representatives of both sides together with their legal advisers called on and had discussions with the bailiff Arthur Isidore who was the officer conducting the judicial sale on behalf of the Sheriff, and the procedure was agreed upon.

4 The sale began at 10 o'clock on the 12th August. Present were representatives of the petitioner/respondent, including its President Lawrence Lewis, residents and/or owners of the Marigot Development, Mr. Kenneth Monplaisir and others. From about 10.30 a.m., the sole bidders were Mr. Kenneth Monplaisir and the President of the petitioner/respondent company. No problem seems to have arisen until the final bid by Mr. Monplaisir. Thereafter, there is a collision of evidence as to what actually occurred. The essence of the petitioner/respondent's grievance is alleged at paragraphs 8 and 9 of the Petition:

AOn hearing the bid of $57,000.00 THE OFFICER immediately began to write and at the same time moved in the direction of Mr. Kenneth Monplaisir at a speed well above a normal walking pace. As he walked THE OFFICER said >going once, twice.= On saying twice,

THE PETITIONER'S agent held THE OFFICER'S hand and made a bid of $60,000.00 but THE OFFICER continued walking towards Mr. Kenneth Monplaisir without accepting THE PETITIONER' S bid.. As THE OFFICER reached Mr. Kenneth Monplaisir to sign the clipboard he was carrying, THE OFFICER then turned and said to THE PETITIONERS agent >you are too late.=

ATHE PETITIONER states that from the behaviour of THE OFFICER during the last moments of the sale, he precluded. himself from receiving any other bids, following that bid of $57,000.00 made by Mr. Kenneth Monplaisir.”

5 It is supported by paragraph 7 of the affidavit of Lawrence Lewis, President of the company, and repeated in his evidence as follows:

AWhen I made my bid of $45,000 the amount was noted by the sheriff and approximately 1 minute after that bid Mr. Monplaisir made his bid of $57,000. I was standing immediately beside the Sheriff. I heard the bid of $57,000. The Sheriff proceeded to write in his note book and at that instance proceeded to walk at a rapid rate in Mr. Monplaisir's direction at the same time saying I have a bid of $57,000, going once, going twice. At that time I grabbed his arm and said $60,000. The Sheriff continuing to walk towards Mr. Monplaisir said >going for a third and final time, going, going, gone.= He turned around towards me and said >you are too late.=”

6 The evidence for sustaining the probity of the sale is contained in the sworn testimony of the bailiff Arthur Isidore, that of Dr. LaCorbiniere, optician and justice or the peace, and that of Kenneth Monplaisir, barrister-at-law. Isidore's evidence reads in part:

AI recorded Mr. Monplaisir's bid and I said, >$48,000 offered.= Mr. Lewis then said, >$50,000.= I recorded the bid. Mr, Monplaisir then said, >$54, 000.=. Mr. Lewis then said, >$55,000.= Mr. Monplaisir said, >$57,000.= At that time it was about 5 minutes after 11. At about 10 minutes after 11 no further bids were offered. I then started my count down now in this manner, >$57,000 offered once, $57,000 offered twice, $57,000 offered for the third and final time, going, going, gone.= At that stage the property was adjudged to the highest and last bidder Mr. Monplaisir.I was moving towards Mr. Monplaisir to obtain his signature. It is a regular practice. After I had taken two(2) steps Mr. Lewis grabbed me and said, >$60, 000.= I told him I could not accept his bid as the sale was already closed.”

7 That of Dr. LaCorbiniere reads in answer to the court:

AI didn't hear the man say who he was bidding for. He told me the person was bidding for a firm. I said, >how can an...