Warefact Ltd (and Canadian Imperial Bank of Commerce) Respondent/Appellant v Voice Buildings Ltd Michael Gordon Lyndell Gordon (and the Sheriff of the High Court of Justice, St. Lucia) Petitioners/Respondents [ECSC]
| Jurisdiction | St Lucia |
| Judge | BISHOP, J.A.,Chief Justice |
| Judgment Date | 24 October 1988 |
| Judgment citation (vLex) | [1988] ECSC J1024-2 |
| Docket Number | CIVIL APPEAL NO. 38 of 1987 |
| Court | Court of Appeal (Saint Lucia) |
| Date | 24 October 1988 |
IN THE COURT OF APPEAL
The Honourable Sir Lascelles Robotham—Chief Justice
The Honourable Mr. Justice Bishop
The Honourable Mr. Justice Moe
CIVIL APPEAL NO. 38 of 1987
IN THE MATTER of a Sheriff's Sale
H. Deterville for appellant Warefact Limited
A. Richilieu for Canadian Imperial Bank of Commerce
W. Cenac, Q.C. and D. Theodore for respondent Voice Buildings Ltd. et. al.
F. Nicholas for The Sheriff of The High Court of Justice
On the 29th September, 1987, the solicitor for Voice Buildings Limited filed a petition praying that a Sheriff's sale of certain immovable property be annulled. The property belonged to the petitioner and the basis for the prayer, as set out in paragraph 4 of the petition was:—
"that at the time of the sale of the said property, there were not three persons present and bidding, so that the essential conditions and formalities prescribed by law for the sale were not observed."
On the 28th October, 1987, the solicitors for the petitioner filed a summons for leave to add the following paragraph to the petition:—
"5. Further or in the alternative artifice was employed with the knowledge of the purchaser Warefact Limited a respondent herein, to keep persons from bidding."
The Summons was supported by the affidavits of Lyndell A.G. Gordon, Chairman of Voice Buildings Limited and of Gerald St. Omer, a baliff of the First District Court, Castries. The latter was present at the judicial sale, and he stated on oath as follows:—
"3. towards the latter part of the bidding I saw and overheard Lincoln St. Rose and Michael Chastanet conversing to the effect that if Michael Chastanet would stop bidding and allow Lincoln St. Rose to purchase the building, then Lincoln St. Rose would make available space in the building to Michael Chastanet.
4. Subsequently I saw Michael Chastanet write on a piece of paper, sign it and give it to Lincoln St. Rose who also signed it. The document was then passed to Miss Lorna Mynns who I heard was asked to witness it. Miss Lorna Mynns signed the document.
5. Immediately after the document was signed as above Michael Chastanet stopped bidding and the property was knocked down to Lincoln St. Rose.
6. Subsequently I discovered that Lincoln St. Rose was bidding for and on behalf of Warefact Limited. This I found out by reading the Minutes of Sale and Bidding of immovables."
There were two affidavits in reply, filed on the 2nd and 6th days of November, 1987. Lincoln St. Rose, Managing Director of Warefact Limited, referred to legal advice given him and asked that the application be dismissed. Hector Gerald, the Sheriff's Officer who conducted the Judicial Sale, stated on oath that he had no knowledge of the allegations contained in paragraphs 3,4 and 5 of the affidavit of Gerald St. Omer. Hector Gerald's choice of words was significant. He was careful not to deny on oath any of the facts specifically stated by St. Omer in the three paragraphs.
Mitchell J. heard the summons on the 9th November, 1987. He delivered his decision on the 12th November, 1987 and granted the petitioner leave to amend the petition as sought. He also stated:—
"leave is also hereby granted to the petitioner to file and serve the amended petition…..on the respondent on or before 26th November, 1987 and the matter is adjourned for compliance with this order, to the 2nd December, 1987."
On the 3rd December, 1987, the learned Judge heard an application on behalf of Warefact Limited and made a consent order that "(1) the plaintiff be and is hereby granted leave to issue an appeal against the order made herein on the 12th November, 1987, and (2) the Notice of Appeal be filed and served on or before the 16th December, 1987".
On the 7th December, 1987, a Notice of Appeal was filed; eight days later an amended Notice of Appeal was filed and served on the persons affected.
The appeal came before us on the 28th January, 1988. Counsel for the appellant requested an adjournment and gave an undertaking that the status quo would be maintained. Counsel for the respondent agreed to the adjournment and it was granted.
On the 9th May, 1988, Counsel for the parties agreed that the argument in this appeal should be confined to answering the question whether or not the amendment was properly granted.
For the appellant Warefact Limited, Mr. Deterville pointed out that the petition sought to annul the Sheriff's sale alleging the lack of a quorum at the sale; and that the amendment to the petition though also seeking annulment of the sale, alleged other facts which were said to amount to artifice.
Learned Counsel submitted that the amendment ought not to have been granted since the effect of so doing was "to add or include a new factual situation at a time when the period of limitation for instituting a new proceeding had elapsed"; according to Counsel, the principles of law to be applied when considering amendment of any document after the period of limitation had passed were set out in Order 20 rule 5 of the Rules of Supreme Court 1970 which did not confer an unfettered discretion. In the instant matter Counsel submitted also that Article 560 of the Code of Civil Procedure set out the limitation period, while Article 34 of the same Code, (on which the application to amend was based) merely explained how the jurisdiction of the Court was exercised.
Counsel cited MARSHAL v. LONDON PASSENGER TRANSPORT BOARD (1936) 3 All E.R. 83 particularly the judgment of Lord Wright M.R. at pages 87 and 88, and YEW BON TEW v. KENDERAAN BAS MARA (1982) 3 All E.R. 833 at page 839.
Relying upon the definition of the term "cause of action" as it appears in Volume 37 of the 4th edition of Halsburys Laws of England at paragraph 20 on page 27, learned Counsel submitted that the annulment of the Sheriff's sale was not the cause of action; rather, it was the remedy available to the petitioner if he succeeded in proving "the subject matter of grievance founding the action", namely that there was not a quorum at the sale.
In the view of Mr. Deterville, the petition set out a cause of action and the application for an amendment sought to add a new cause of action. In addition the facts forming the basis for the particular amendment were not the same or substantially the same as those forming the basis for the petition.
Learned Counsel for Canadian Imperial Bank of Commerce did not wish to address the Court; nor indeed did learned Counsel for the Sheriff of the High Court of Justice.
For the other respondents named, that is to say, for Voice Buildings Limited, Michael Gordon and Lyndeil Gordon, learned Counsel pointed out that the object of the application for amendment was also that of the petition; and he submitted that (a) the allegations in the petition and those in the amendment were clearly linked and rested upon the same base; (b) it was wrong to regard a ground for applying to vacate the sale as a cause of action. There were statutory grounds available to a judgment debtor to set in motion the machinery by which the Sheriff's sale could be vacated and (c) Article 558 of the Code of Civil Procedure did not create causes of action. It designated who could go to Court to vacate an improper sale and it provided the reasons or grounds for doing so.
Learned Counsel contended that, assuming without agreeing that the term "cause of action" could be used when dealing with the question to be answered, then the cause of actioin here was the claim that the sala be vacated. Mr. Cenac explained why the term was inappropriate. He argued that having regard to the definition given by Diplock L.J. in LETANG v. COOPER (1964) 2 All E.R. 929 at page 934, the essence of the expression was that it entitled one person to obtain a remedy against another person. In the instant case what was being done amounted to an "attack" on a procedural step taken in the enforcement of a judgment; it was not an "attack" against a person. "The thrust of the petition was not against the Sheriff or any of the parties to the proceedings". It was not seeking a remedy for the Judgment Debtor itself against the purchaser of the property.
Mr. Cenac also emphasised that the application to amend was based especially upon Article 34 of the Code of Civil Procedure which, he contended, was not Affected by periods of limitation. As Counsel put it; "the Court has power to grant an amendment under Article 34 even after a period of limitation has expired and whether or not based on same facts as the original cause of action, if the Court is satisfied that justice so requires". The discretion of the Court was wide and untrammelled, and in this case it was also necessary to answer the question whether or not the interest of justice would be served by allowing the amendment. This meant consideration of the facts disclosed.
Counsel referred to facts relied on in the petition as well as those given on oath in support of an in answer to the application, and he submitted that the facts related to the application were substantially the same as those stated in the petition. Counsel emphasised that the fact that Chastanet stopped bidding coupled with the circumstances in which he did so were linked with and germane to the allegation that there were not three persons present and bidding at the material time. In addition, Counsel submitted that assuming that the grounds set out in Article 558 of the Code of Civil Procedure could be regarded as causes of action—a view to which he did not subscribe—then the provisions of Order 20 rule 5 of the Rules of Supreme Court 1970 would be satisfied. Thus the...
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