The Bank Of Nova Scotia v Joyce Erin Rabess et al

THE EASTERN CARIBBEAN SUPREME COURT IN THE COURT OF APPEAL COMMONWEALTH OF DOMINICA DOMHCVAP2016/0010 BETWEEN: THE BANK OF NOVA SCOTIA Appellant and [1] JOYCE ERIN RABESS [2] ANISON RABESS Respondents Before: The Hon. Mde. Vicki Ann Ellis Justice of Appeal The Hon. Mr. Gerard St. C Farara Justice of Appeal [Ag.] The Hon. Mr. Eddy Ventose Justice of Appeal [Ag.] Appearances: Ms. Joelle Harris and Ms. Noelize Knight-Didier for the appellant Mr. David Bruney for the respondents Ms. Hazel Johnson and Ms. Lisa de Freitas appearing amicus curiae ____________________________ 2023: Dec 8; 2024: July 22. ____________________________ Civil appeal – Default judgment – Service of default judgment – The doctrine of stare decisis – Whether the learned master erred by finding that she was bound to follow the decision of Mitchell JA [Ag.] in Anison Rabess et al v National Bank of Dominica – Title by Registration Act – Exercise of mortgagee’s rights under the TRA – Section 66 of the TRA - Conversion of equitable mortgage to legal mortgage - Appellant’s failure to serve default judgment prior to taking steps under the TRA for conversion of the equitable mortgage to legal mortgage – Whether service of a default judgment is a condition precedent to mortgagee taking steps under section 66 of the TRA - Enforcement of judgments under the CPR - Whether proceedings under the TRA are enforcement proceedings governed by the CPR – Whether the master erred by ruling that the Bank’s failure to serve the default judgment rendered all steps taken by the Bank pursuant to the TRA null and void and of no effect On 31st August 2001, the respondents obtained a loan facility from the Bank of Nova Scotia (“the Bank” or “the appellant”) and in accordance with section 62 of the Title by Registration Act (the “TRA”), an equitable mortgage was granted to the Bank over the respondents’ interest in property registered in the Land Titles Register Book. As per section 65 of the TRA, a caveat was presented by the Bank to prevent any dealings with the mortgaged property and this caveat was noted on the certificate of title for the property. The respondents defaulted on their loan obligations and the Bank commenced a claim against them on 26th August 2002 to recover the sum of $346,012.42 which the Bank claimed was due and owing on the loan. The respondents failed to file an acknowledgement of service and on 22nd October 2002, the Bank filed a request for entry of judgment in default of acknowledgement of service. The Bank requested that judgment be entered for the sum of $354,341.66. On the same date, 22nd October 2002, the Bank filed a draft judgment in default. Judgment in default was subsequently granted to the Bank and the default judgment, was filed on 29th September 2003, although dated 24th September 2002. After the entry of judgment in default, the judgment was presented to the Registrar of Titles on 16th July 2004 and a legal mortgage dating back to the date of the caveat was noted on the certificate of title and the caveat was removed, in accordance with section 66 of the TRA. On 3rd December 2015, the respondents filed an application to set aside the default judgment entered on 24th September 2002 and they also sought an order that all enforcement proceedings predicated on the purported default judgment be set aside and declared null and void. On 7th December 2015 the Bank filed an ex-parte application for an order that the default judgment be corrected to 24th September 2003 rather than 24th September 2002. The Bank -contended that by accidental slip, the incorrect year was inserted in the default judgment. This ex-parte application was granted by Thomas J, who ordered that the date of the default judgment be corrected to 24th September 2003 under Part 42.10 of the Civil Procedure Rules 2000 (the “CPR” or “CPR 2000”). On 15th October 2015, the Bank served the default judgment on counsel for the respondents and on the same date, filed an application pursuant to CPR Part 26.9 for the court to deem service of the default judgment on counsel for the respondents as proper service, and to have all matters put right without invalidating any steps taken in the proceedings after judgment. The respondents’ filed an amended application on 31st December 2015 seeking an order that: (i) the default judgment entered on 24th September 2003 be set aside; (ii) the amended judgment obtained by order of Thomas J be set aside; (iii) all enforcement proceedings predicated on the purported default judgment be set aside and declared null and void; and (iv) the Bank pay to the respondents all sums obtained or realised in enforcing the purported default judgment from 2003 to date together with interest at the prevailing banker’s rate. Applying Part 11.16(1) of the CPR 2000, the learned master set aside Thomas J’s order and reheard the Bank’s application to correct the date of the default judgment. The master found that there was indeed an accidental slip since the Bank’s application for entry of judgment in default was filed in October 2002 and default judgment could not have been granted before the request had been made. Consequently, under the slip rule (rule 42.10 of the CPR 2000), the Bank’s application was granted, and the date of the default judgment changed to 2003. The master also found that there was no basis for setting aside the default judgment since, contrary to the respondents’ argument, judgment had not been entered for an excessive amount. The respondents also sought to set aside all enforcement proceedings predicated on the default judgment on the basis that the default judgment had not been personally served on them. It was submitted that even with the corrected date of September 2003, the default judgment was only served on the respondents on 15th October 2015. The respondents relied strongly on the appellate judgment in Anison Rabess et al v National Bank of Dominica (“Rabess”). The Bank countered that the application for an order for the sale of the land was brought under the TRA and did not constitute enforcement of the judgment since: (i) CPR Part 45 sets out the various methods for enforcing a judgment; (ii) money judgments may be enforced, inter alia, by an order for seizure and sale of goods under CPR Part 46; (iii) CPR Part 46 defines writ of execution as including an order for sale of land; and (iv) proceedings under Part V of the TRA are not referred to in the TRA or the CPR as a method of enforcement. The Bank further submitted that the master would not be bound by the decision in Rabess because the statements by Mitchell JA [Ag.] were obiter and would not be binding. The master ultimately found that the facts of Rabess were almost identical to the facts before her. She was unable to agree with the Bank’s argument that Mitchell JA’s [Ag.] statements were obiter and she determined that she was bound to follow Mitchell JA’s [Ag.] appellate decision. Having found that service of the default judgment was only deemed to have been effected on the respondents on 15th October 2015, the learned master consequently ordered that all proceedings taken consequent to the entering of the default judgment on 24th September 2003, were null and void and of no effect. Having found that the respondents had succeeded only on some portions of their application, the master made no order as to costs. Being dissatisfied with the learned master’s ruling, the Bank appealed. The Bank initially lodged 9 grounds of appeal however, during the oral hearing, counsel for the Bank, indicated that they would not be proceeding with grounds 3 and 4 of their notice of appeal, effectively conceding that Mitchell JA’s [Ag.] statements in Rabess at paragraphs 7 and 12 were not obiter dicta and formed part of the ratio decidendi in that case. Three main issues therefore arose for determination by the Court from the seven remaining grounds of appeal: (i) Whether the learned master erred by finding that she was bound to follow the decision of Mitchell JA [Ag.] in Rabess; (ii) Whether the master erred by ruling that the Bank’s failure to serve the default judgment rendered all steps taken by the Bank pursuant to the TRA null and void and of no effect; and (iii) Whether the master erred by failing to determine the appellant’s application under CPR Part 26.9 to put matters right notwithstanding their failure to serve the default judgment in 2003 and only serving same in 2015. Held: allowing the appeal, setting aside the decision made by the learned master on 29th June 2016 which rendered all proceedings taken by the Bank consequent to the entering of the default judgment on 24th September 2003 null and void and of no effect, and ordering that the respondents pay the appellant’s costs on the appeal, such costs to be assessed by a judge of the high court, if not agreed, within 21 days of the date of this judgment, that: 1. A judgment under section 66 of the TRA is a judgment (obtained pursuant to CPR Part 12) which on a strict reading of CPR Part 42.6 ought to have been served on the respondents. However, it does not follow that under the provisions of the CPR or indeed the TRA, that the respondents would be entitled to have the consequential proceedings set aside as of right, ex debito justitiae, or indeed that, if there is such a discretion it can be exercised in only one way. The court must look at the individual facts of each case. In this appeal, the proceedings which would have led to the default judgment were properly served on the respondents. The default judgment serves as a judgment under section 66 of the TRA fixing the amount owed by the respondents. It is not a money judgment and the proceedings under the TRA are not enforcement proceedings. It simply serves as the authority to the Registrar of Titles to act to convert the bank’s equitable mortgage to a legal one. Once that legal mortgage was noted on the certificate of title, the procedures prescribed under the TRA to realise the Bank’s security are not dependent on any judgment. The proceedings under the TRA are an entirely fresh set of proceedings under a completely disparate statutory regime which had been properly served on the respondents. Section 66 of the Title by Registration Act Chap 56.50 of the Laws of Dominica applied; Part 42.6 of the Civil Procedure Rules 2000 applied; SAG Motors Ltd et al v National Bank of Dominica DOMHCVAP2022/0001 (delivered 28th July 2023, unreported) followed. 2. As it pertains to sections 74-97 of the TRA, these provisions detail the legal rights of a mortgagee to sell the encumbered land. The exercise of the mortgagee’s statutory and legal rights to realise his security when there has been a default under the provisions of the mortgage are not contingent on the existence of any money judgment or order of the court or the service on the mortgagor/defendant of the default judgment. Sections 74-97 therefore are not enforcement proceedings within the CPR and therefore the decision in Rabess was reached without the attention of the court having been drawn to the significance of this distinction. Sections 74-79 of the Title by Registration Act Chap 56.50 of the Laws of Dominica applied; SAG Motors Ltd et al v National Bank of Dominica DOMHCVAP2022/0001 (delivered 28th July 2023, unreported) followed. 3. The Court of Appeal is generally bound by its own decisions save in closely defined circumstances. This Court can decline to follow an earlier Court of Appeal decision if some binding authority or relevant statutory provisions, or rules of statutory force are overlooked. This Court can also decline to follow an earlier decision if based on its own special facts, the case fell within the exceptional residual category of cases which are not strictly per incuriam as highlighted in Young v Bristol Aeroplane Co. Ltd, but where the Court might consider itself not entitled to follow an earlier decision of its own. There is nothing in Mitchell JA’s [Ag.] decision in Rabess to show that the learned judge gave any consideration to the totality of the legislative provisions set out in the TRA or to their effect. This is borne out when he equated the procedures under the TRA with enforcement proceedings of a judgment. This is clearly not the case. The decision in Rabess, (insofar as it held that the failure to serve the default judgment invalidated all subsequent proceedings under the TRA), does not correctly interpret and apply the statutory provisions of the TRA or the CPR. Consequently, the reasoning in Rabess cannot be sustained and this Court is not obliged to follow the judgment. The instant case is one of those rare cases which falls within that “exceptional residuary category” and consequently this Court declines to follow Rabess. Nelson v Clearsprings (Management) Limited [2007] 1 WLR 962 considered; Desnousse v Newham London Borough Council [2006] 3 WLR 349 applied; Young v Bristol Aeroplane Co Ltd [1944] 2 All ER 293 applied. JUDGMENT

[1]ELLIS JA: This an appeal against the learned master’s decision to render null and void and of no effect, all proceedings taken by the appellant bank consequent to the entering of a default judgment in the bank’s favour on 24th September 2003, owing to the bank’s failure to serve the said default judgment on the respondents before 15th October 2015.

Background

[2]On 31st August 2001, the respondents obtained a loan facility from the Bank of Nova Scotia (“the Bank” or “the appellant”) and in accordance with section 62 of the Title by Registration Act (the “TRA”),1 an equitable mortgage was granted to the Bank over the respondents’ interest in property registered in the Land Titles Register Book T11 folio 47. As per section 65 of the TRA, a caveat was presented by the Bank to prevent any dealing with the mortgaged property and this caveat was noted on the certificate of title for the property.

[3]The respondents defaulted on their loan obligations and the Bank commenced a claim against them on 26th August 2002 to recover the sum of $346,012.42 which the Bank claimed was due and owing on the loan. The respondents failed to file an acknowledgement of service and on 22nd October 2002, the Bank filed a request for entry of judgment in default of acknowledgement of service. The Bank requested that judgment be entered for the sum of $354,341.66. On the same date, 22nd October 2002, the Bank filed a draft judgment in default.

[4]Judgment in default was granted to the Bank and the default judgment, which was dated 24th September 2002, was filed on 29th September 2003.

[5]After the entry of judgment in default, the following notable events took place: (i) In accordance with section 66 of the TRA, the judgment was presented to the Registrar of Titles on 16th July 2004 and a legal mortgage dating back to the date of the caveat was noted on the certificate of title and the caveat was removed. (ii) On 17th November 2004, pursuant to section 74 of the TRA, a notice to pay off, which referenced the terms of the judgment against the respondents, was served on the respondents. (iii) In November 2004, on the instructions of the respondents, the Bank presented the certificate of title at the Land Registry for the recording of a sale to one Devertson John of 10,860 sq. ft of the mortgaged property. The purchase monies were forwarded directly to the appellant. (iv) In accordance with section 88 of the TRA, a new notice to pay off was served on the respondents on 11th January 2006, which also referenced the default judgment and its terms. (v) On 29th March 2006, the property was duly seized under section 75 of the TRA. A caveat of seizure in favour of the Bank was placed on the certificate of title in accordance with section 77. (vi) In February 2007, the Bank withdrew the caveat of seizure to allow for a sale by the respondents of 15,000 sq. ft of the mortgaged property. The purchase monies were paid to the Bank. (vii) In February 2008, a further sale was noted on the certificate of title with the purchase monies forwarded to the Bank and the caveat of seizure was duly re-noted on the certificate. (viii) On 6th June 2014, the respondents were summoned to court in accordance with section 78 of the TRA, to settle articles of sale. (ix) In August 2014, a further sale of .75 acres of the mortgaged property was noted on the certificate, with the purchase monies forwarded to the Bank. (x) On 23rd July 2015, the application to settle the articles of sale was served on the respondents. (xi) On 29th September 2015, the respondents indicated, for the first time, that they had not been served with the default judgment.

[6]On 3rd December 2015, the respondents filed an application to set aside the default judgment entered on 24th September 2002 and they also sought an order that all enforcement proceedings predicated on the purported default judgment be set aside and declared null and void.

[7]On 7th December 2015 the Bank filed an ex-parte application for an order that the default judgment be corrected to 24th September 2003 rather than 24th September 2002. The application was based on the fact that by accidental slip, the incorrect year was inserted in the default judgment. This ex-parte application was granted by Thomas J, who ordered that the date of the default judgment be corrected to 24th September 2003 under rule 42.10 (the slip rule) of the Civil Procedure Rules 2000 (the “CPR” or “CPR 2000”).

[8]On 15th October 2015, the Bank purported to serve the default judgment on counsel for the respondents and on the same date, filed an application pursuant to rule 26.9 of the CPR 2000, for the court to deem service of the default judgment on counsel for the respondents as proper service, and to have all matters put right without invalidating any steps taken in the proceedings after judgment. It was reflected in the learned master’s judgment that this application was granted by the court.

Decision in the Court Below

[9]Before the master in the court below was the respondents’ amended application filed on 31st December 2015 in which the respondents sought orders that: (i) the default judgment entered on 24th September 2003 be set aside; (ii) the amended judgment obtained by order of Thomas J be set aside; (iii) all enforcement proceedings predicated on the purported default judgment be set aside and declared null and void; and (iv) the Bank pay to the respondents all sums obtained or realised in enforcing the purported default judgment from 2003 to date together with interest at the prevailing banker’s rate.

[10]Applying Part 11.16(1) of the CPR 2000, the learned master set aside Thomas J’s order and reheard the Bank’s application to correct the date of the default judgment.2 The master found that there was indeed an accidental slip since the Bank’s application for entry of judgment in default was filed in October 2002 and default judgment could not have been granted before the request had been made. Consequently, under the slip rule (rule 42.10 of the CPR 2000), the Bank’s application was granted, and the date of the default judgment changed to 2003.

[11]The master also found that there was no basis for setting aside the default judgment since, contrary to the respondents’ argument, judgment had not been entered for an excessive amount.

[12]In their application, the respondents also sought to set aside all enforcement proceedings predicated on the default judgment on the basis that the default judgment had not been personally served on them. Even with the corrected date of September 2003, the default judgment was only served on the respondents on 15th October 2015. The respondents relied strongly on the appellate judgment in Anison Rabess et al v National Bank of Dominica3 where Mitchell JA [Ag.] stated that “if a default judgment is to be capable of being enforced it must be personally served on the defendants: CPR 42.6 applies.” Having found that there was no evidence that the default judgment in that case had been served on the defendants. Mitchell JA therefore held that the default judgment was not capable of being enforced by an order for the sale of property and at paragraph 12 concluded: “The Bank has not denied that the default judgment was never served on Mr. and Mrs. Rabess, far less has it provided the court with proof of service. In the circumstances, I would consider that omission to be an admission that the judgment was not in fact served. All proceedings consequent to the entering of the judgment would then be defective, null and void and of no effect. If the Bank is satisfied that the judgment is correct, it must serve it on Mr. and Mrs. Rabess, file the appropriate proof of service, and proceed from there.”

[13]The Bank countered that the application for an order for the sale of the land was brought under the TRA and did not constitute enforcement of the judgment since: (i) CPR 45 sets out the various methods for enforcing a judgment; (ii) money judgments may be enforced, inter alia, by an order for seizure and sale of goods under CPR 46; (iii) CPR 46 defines writ of execution as including an order for sale of land; and (iv) proceedings under Part V of the TRA are not referred to in the TRA or the CPR as a method of enforcement.

[14]The Bank also submitted that the enforcement of judgments, as against properties brought under the TRA are specifically dealt with in Part V of the TRA which sets out the procedure for a judgment creditor to apply for an order for the sale of land. Consequently, pursuant to CPR 2.2(3), CPR 46 had no application since the procedure set out in Part V of the TRA applied.

[15]The Bank further submitted that the master would not be bound by the decision in Rabess because the statements by Mitchell JA [Ag.] were obiter and would not be binding.

[16]The master ultimately found that the facts of Rabess were almost identical to the facts before her. She was unable to agree with the Bank’s argument that Mitchell JA’s [Ag.] statements were obiter and she determined that she was bound to follow Mitchell JA’s appellate decision. The National Bank of Dominica, like the appellant, filed an application for an order for the sale of land following the entry of judgment in default. There was no evidence in that case that the default judgment was personally served on the appellants in that case. The Court ruled that in the absence of service, all proceedings taken upon the default judgment were null and void.

[17]Having found that service of the default judgment was only deemed to have been effected on the respondents on 15th October 2015 by an order of the court dated 22nd February 2016, the learned master consequently ordered that all proceedings taken consequent to the entering of the default judgment on 24th September 2003, are null and void and of no effect. Having found that the respondents had succeeded only on some portions of their application, the master made no order as to costs.

[18]Being dissatisfied with the learned master’s ruling, the Bank appealed.

The Appeal

[19]The Bank initially lodged 9 grounds of appeal in its notice of appeal filed on 20th December 2016. However, during the oral hearing, counsel for the Bank, Ms. Harris, indicated that they would not be proceeding with grounds 3 and 4 of their notice of appeal (stated as grounds C and D in the notice of appeal), effectively conceding that Mitchell JA [Ag.]’s statements in Rabess at paragraphs 7 and 12 were not obiter dicta and formed part of the ratio decidendi in that case. That left the remaining 7 grounds of appeal as follows: (i) The learned master erred when she failed to distinguish the legal issues and legal arguments for consideration before Mitchell JA [Ag.] in Rabess from those before her for consideration. (ii) The master erred when she failed to consider/find that the conversion of an equitable mortgage to a legal mortgage under section 66 of the TRA did not amount to enforcement proceedings. (iii) The master erred in finding that the statements of Mitchell JA [Ag.] created binding precedent on the question of whether all proceedings taken under the TRA after a judgment is obtained are enforcement proceedings for the purposes of CPR 2000. (iv) Having found, following the statements of Mitchell JA [Ag.] in Rabess, that the proceedings taken under Part V of the TRA amounted to enforcement proceedings governed by the CPR 2000, the master further erred by failing to find that CPR 42.2 applied to bind the respondents to the terms of the default judgment since they had been notified of the terms of the said judgment via the notice to pay off served on them on 17th November 2004. (v) Having found that CPR 2000 applied to the proceedings taken under Part V of the TRA, the master erred in law by failing to exercise her discretion and invoke CPR 1.1(1) and CPR 1.2 in determining the meaning and effect of CPR 42.6 and CPR 6.1. (vi) The master erred in relying on the statements of Mitchell JA [Ag.] that enforcement proceedings may not be taken before a default judgment is served and that any such proceedings taken before the said judgment is served are defective, null and void and of no effect. (vii) Having found that CPR 2000 applied to the proceedings taken under Part V of the TRA, and in light of the fact that no sanction or consequence for non-service of a judgment is specified in the CPR 2000, the master further erred in law and in principle by failing to consider the Bank’s application requesting that the court exercise its discretion under CPR 26.9 and grant an order that: (1) Service of the default judgment on 15th October 2015 on counsel for the respondents be deemed proper service; (2) Such service rectified the procedural error of the said default judgment having not previously been served on the respondents and pursuant to CPR 26.9(2) this did not invalidate the steps taken in the proceedings following obtaining judgment and (3) All matters are thereby put right in accordance with CPR 26.9(3).

The issues on appeal

[20]This Court is tasked with determining whether the learned master erred in setting aside all proceedings taken by the Bank consequent upon the entering of the default judgment on 24th September 2003 due to the Bank’s failure to serve the respondents in 2003 and only effecting service on the respondents on 15th October 2015. In order to determine this, the following issues arise: (i) Whether the learned master erred by finding that she was bound to follow the decision of Mitchell JA [Ag.] in Rabess; (ii) Whether the master erred by ruling that the Bank’s failure to serve the default judgment rendered all steps taken by the Bank pursuant to the TRA null and void and of no effect; (iii) Whether the master erred by failing to determine the appellant’s application under Part 26.9 to put matters right notwithstanding their failure to serve the default judgment in 2003 and only serving same in 2015.

The Bank’s submissions

[21]Counsel for the Bank asserted that the master was wrong to consider herself bound by the decision of Mitchell JA [Ag.] in Rabess. In summary, she argued that the issues before the learned master were different from those before Mitchell JA [Ag.] and so the master erred by failing to distinguish Rabess on that basis. Counsel submitted that Mitchell JA [Ag.]’s statements at paragraphs 7 and 12 in Rabess were made based on an assumption of a proposition of law and thus, were of non-binding effect. She therefore concluded that Mitchell JA [Ag,]’s statement as to the necessity of service prior to enforcement of a default judgment was made per incuriam and the master was therefore not bound by it.

[22]Counsel for the Bank noted that the issues which confronted the master in the court below were: (i) whether the proceedings under Part V of the TRA, following judgment and leading to the sale of the encumbered property, were enforcement proceedings; and (ii) if they were enforcement proceedings, whether CPR 26.9 could have rectified all matters and consequently, the steps taken by the Bank under the TRA prior to service of the default judgment should not have been rendered null and void.

[23]The Bank argued that the master should have distinguished Rabess because the issue of whether the proceedings amounted to enforcement proceedings of a money judgment was neither before the court at first instance in Rabess nor before Mitchell JA [Ag.] on appeal. It follows that Mitchell JA [Ag.] did not need to, nor did he make a finding as to whether the proceedings amounted to enforcement proceedings. Consequently, his statement referring to the proceedings as “enforcement of the default judgment” is not binding and the learned master ought to have applied her own deliberate judgment to this issue based on the facts before her. She failed to do so. Counsel therefore submitted that the learned master therefore erred when she failed to distinguish the legal issues and legal arguments for consideration before Mitchell JA [Ag.] in Rabess from those before her for consideration.

[24]Counsel Ms. Harris contended that while an inferior court is generally bound to follow every part of the ratio decidendi of a decision of a superior court, where a superior court assumes a proposition of law to be correct simply because counsel in the case has agreed to it, or did not dispute it, that part of the court’s decision is not binding authority for the proposition. She cited the decision of Baker and another v The Queen4 which was applied in Barrs and others v Bethel and others.5 In Baker, Lord Diplock noted that a proposition of law assumed to be correct since it was not disputed by the parties, may be incorporated into the ratio decidendi of the particular case, but because it does not bear the authority of an opinion reached by the court itself, it does not create a precedent for use in the decision of other cases.

[25]Counsel further cited the case of Re Hetherington (deceased) Gibbs v McDonnell and another6 in support of this proposition. The Bank thus submitted that Mitchell JA [Ag.]’s description in Rabess of the steps taken by the National Bank of Dominica under the TRA as “enforcement of the default judgment” was not disputed by the parties and the Court never applied its mind to the issue of whether the steps amounted to enforcement proceedings under the CPR. She therefore submitted that the learned appellate judge’s statements were not of binding effect since they were based on an assumption of a proposition of law.

[26]Taking this point further, Counsel also submitted that although this Court is generally bound by its own decisions, under CPR 62.16A the Full Court may vary, discharge or revoke the decision of a single judge and in any event, this Court may refuse to follow a decision given per incuriam. Counsel Ms. Harris cited Baker where Lord Diplock referred to the per incuriam rule as set out in Young v Bristol Aeroplane Co Ltd,7 that a court may refuse to follow one of its previous decisions where the decision was made per incuriam.

[27]The Bank argued that the master erred by finding that Mitchell JA [Ag.]’s statement at paragraph 7; that it is a long-established principle of civil procedure that a final judgment or order may not be enforced unless it is served personally on the party against whom it is sought to be enforced; was binding authority since the decision was made per incuriam. She argued that as per CPR 6.1 and 42.6, the default obligation is on the court office and not the parties, to effect service of judgments. At the time of obtaining the default judgment, there was no order for the Bank to serve the default judgment on the respondents.

[28]Furthermore, under CPR 42.2, a party notified of the terms of a judgment, or who was represented when a judgment was given, is bound by the said judgment even if it had not been served on them. Consequently, counsel asserted that Mitchell JA [Ag.]’s statement that CPR 42.2 only has relevance to contempt and other similar proceedings and did not appear to be based on a proper consideration of the provisions of the CPR related to the service and enforcement of judgments and orders. Citing the decision of David Goldgar et al v Wycliffe H. Baird,8 counsel argued that an isolationist approach defies the ordinary canons of construction, and the court should interpret the rules in a manner that is coherent and consistent. As the CPR itself does not state that a party cannot enforce a judgment or order unless it is served on the party against whom the judgment had been obtained, it therefore could not be interpreted to have the effect of barring a successful party from enforcing a judgment before the obligation on the court office was discharged or the judgment served.

[29]Counsel for the Bank contended that even if the master was correct to state that service was necessary prior to the enforcement of a default judgment, the proceedings taken by them under the TRA were not enforcement proceedings. Counsel posited that the master erred by failing to find that the conversion of an equitable mortgage under section 66 of the TRA was not enforcement proceedings for the purposes of the CPR. Counsel contended that the steps taken pursuant to section 66 following judgment, and the provisions of sections 74-97 were not enforcement proceedings but proceedings for the conversion of the equitable mortgage and for the mortgagee to exercise his right of sale over the encumbered land specifically provided for by statute. There is no requirement for service of the judgment under section 66, nor is it a condition precedent to the conversion of the equitable mortgage that the judgment referred to in section 66 be served.

[30]Moreover, sections 74-97 of the TRA which deal with the sale of the encumbered land specifically set out the timelines and documents to be served therein. These sections are silent as to service of a judgment prior to engaging these provisions. The mortgagee therefore need only return to court when, under section 78, he wishes to settle the articles of sale. Consequently, the proceedings for the sale of the mortgaged property under Part V of the TRA do not amount to enforcement proceedings under Parts 35, 46 or 53 of CPR 2000. Counsel for the Bank also sought to adopt the analysis and submissions of the amicus curiae dated 5th May 2023 where at paragraphs 13, 14 and 15 of the submissions the point was reiterated that service of the judgment is not among the steps necessary for conversion of the equitable mortgage. As a result, a failure to serve the judgment does not invalidate conversion.

[31]The Bank further sought to illustrate its point by emphasizing that there was a difference between execution or enforcement of a judgment and bringing an action related to or based on a judgment. Counsel cited Halsbury’s Laws of England9 which defined the word ‘execution’ as enforcement of a judgment.10 Counsel also cited the case of Morrison Knudsen International Inc v The Consultant Limited et al11 where Byron CJ relied on the decision in Re a Debtor12 where the court stated that bankruptcy proceedings based on a statutory demand founded on a judgment debt, constituted an action in accordance with the Limitation Act 1980 and not execution or enforcement proceedings for the purpose of the rules of court.

[32]Ms. Harris posited that CPR Part 45 clearly sets out the various methods for enforcing a judgment and the proceedings under Part V of the TRA were not referred to in the CPR as a method of enforcement. Counsel also highlighted that the enforcement of judgments as against properties brought under the TRA is specifically dealt with in Part VI of the Act which is titled ‘judgments’. Consequently, Ms. Harris asserted that CPR 2.2(3)(e) may be invoked since the TRA regulates mortgage proceedings for the sale of encumbered land and the CPR 2000 therefore would be inapplicable to the conversion of the equitable mortgage and the subsequent mortgage proceedings towards the sale of the property. Thus, service of a judgment or order would not be a necessary first step before a mortgagee engaged the provisions under the TRA.

[33]Finally, the Bank argued that even if this Court were to disagree and hold that the proceedings under the TRA were enforcement proceedings and that service of the default judgment was a necessary first step, in any event, the respondents were notified of the terms of the default judgment since 2004 and were therefore bound by it since that time. Though not served until 2015, the Bank asserted that the respondents were aware of the terms of the default judgment by means of the first notice to pay off which had been served on them since 2004.

[34]Although Ms. Harris admitted in oral submissions that the judgment itself was not exhibited to the notice to pay off, she asserted that the notice made specific reference to the terms of the judgment and by operation of CPR 42.2, the respondents were bound by it notwithstanding that it had not been served on them. Moreover, the respondents were participants in the proceedings before the court after default judgment had been entered including those concerning settling the articles of sale. Therefore, the master ought to have found that CPR 42.2 bound the respondents to the terms of the default judgment, and she ought not to have considered herself bound by Mitchell JA [Ag.]’s decision in Rabess.

The amicus curiae’s submissions

[35]The amicus curiae largely agreed with the appellant’s submissions. Counsel contended that the issues before Mitchell JA [Ag.] in Rabess were: (i) whether the calculation of the debt as disclosed in the default judgment was inaccurate and excessive; (ii) whether the default judgment was served; and (iii) if not served, what was the effect of the failure to serve the default judgment. In considering these issues, they argued that Mitchell JA [Ag.] proceeded on the premise that the proceedings under the TRA were of the nature of enforcement proceedings, which premise was accepted by the parties. The appellate judge was never called on to consider and did not consider whether the provisions for the conversion of an equitable mortgage to a legal mortgage and the sale of encumbered property under the TRA were enforcement proceedings. Consequently, the decision of Mitchell JA [Ag.] to characterise the proceedings under sections 66 and 74-97 of the TRA as enforcement proceedings, was made per incuriam and the master erred in considering herself bound by it.

[36]The amicus curiae posited that the words of CPR 2.2(3)(e) and section 66 of the TRA ought to be given their natural and ordinary meanings. Section 66 does not provide for the commencement or initiation of any proceedings under it. Rather, in order to benefit from the section, a mortgagee must first obtain a judgment which, they contend, can only be obtained from the institution of proceedings by ordinary suit. Such a suit, not being instituted under any enactment, is therefore governed in all respects by the CPR.

[37]Counsel accepted that CPR Part 42.6 provides that judgments and orders must be served and that in the instant case, an action for recovery of the debt was instituted by the Bank and the default judgment was obtained pursuant to the CPR. However, she submitted that the process of conversion of the equitable mortgage under section 66 of the TRA is an administrative function performed by the Registrar and is separate from the suit under the CPR. The conversion is part of a statutory regime governed exclusively by the TRA and is not subject to the CPR. Thus, applying the ordinary meaning of the words in section 66, service of the judgment is not among the steps prescribed for conversion of the mortgage. Consequently, the failure to prove service of the judgment does not invalidate the conversion.

[38]The amicus further posited that sections 74-97 of the Act set out a comprehensive regime for the mortgagee’s exercise of powers and privileges by way of sale of encumbered property and the reason for these sections is not the direct enforcement of a judgment. These sections are not dependent on the existence of a judgment, but rather the existence of a legal mortgage. Thus, these sections constitute foreclosure proceedings and are not enforcement proceedings.

The respondents’ submissions

[39]Counsel for the respondents’ main contention was that the dicta of Justice Mitchell in Rabess has found support in subsequent decisions in this jurisdiction. Counsel cited the cases of Shefton Crosse v Victor Williams13 and Gotson Warrican v Ronnie Trotman et al14 to illustrate this point. Counsel argued that this Court ought to be guided by the statements pronounced in Rabess and find that the default judgment cannot be enforced until and unless it is served on the party against whom it is obtained.

[40]The respondents also argued that the TRA may be construed as depriving the respondents of their interest in the land through the conversion of an equitable mortgage to a legal mortgage following the obtaining of the default judgment. Counsel submitted that if the TRA was used to deprive the respondents of their property, it must be construed together with section 6 of the Constitution of the Commonwealth of Dominica15 (the “Constitution”) which specifically prohibits the compulsory acquisition of property save for certain circumstances and the Land Acquisition Act.16 He further contended that where the default judgment was not personally served on the respondents and therefore was not lawfully enforced, such judgment could not be categorized under section 6(6) (a) (iv) of the Constitution as an exception to the contravention of section 6(1). Also, where the Bank sought to utilize the TRA to deprive the respondents of their property interest, such deprivation would be inconsistent with section 6 of the Constitution.

[41]Counsel argued that before the respondents’ property could have been subject to the said provisions of the TRA, all necessary and formal requirements must be followed and adhered to pursuant to said act of seizure which is tantamount to enforcement of the judgment. Therefore, the fact that the Bank failed to serve the default judgment meant that it failed to ensure that all necessary formal lawful requirements were followed and adhered to. This requirement for personal service is underscored by Justice Mitchell in Rabess at paragraph 7. Counsel submitted that the necessity of personal service was highlighted further in the decisions of Shefton Crosse and Gotson Warrican which both cited Rabess. Moreover, the court in Gotson Warrican, at paragraph 30, found that a default judgment that had not been served is liable to be set aside and cannot be enforced. The Bank’s reply to the respondents’ submissions

[42]Counsel for the Bank countered that in so far as the respondents suggested that section 66 of the TRA was unconstitutional; (i) the conversion of an equitable and legal mortgage did not deprive the respondents of their interest in the property; (ii) any deprivation of an interest in property pursuant to a law that related to a mortgage is expressly stated by section 6(6)(iii) of the Constitution to not be in contravention of section 6(1); and (iii) the respondents’ reliance on Rabess without actually responding to the appellant’s argument that Mitchell JA [Ag.]’s decision was wrong.

[43]As to the respondents’ reliance on the decision in Gotson Warrican, the appellant asserted that in that case, an application was made to the master to set aside a default judgment and there was no application to prevent enforcement of a default judgment for lack of service. The statement at paragraph 30 of the judgment was not ratio decidendi and the master did not rely on the decision in Rabess to arrive at her decision as to whether or not the defendants had satisfied the criteria set out under CPR 13 for setting aside a default judgment. The statement therefore appeared to be obiter dicta.

[44]During oral submissions, Ms. Harris further articulated that the constitutional argument was never raised before the learned master for her consideration and consequently, she never made any ruling or finding on it. To therefore allow the respondents to raise wholly new issues on the appeal, which were never raised at first instance, would be wholly erroneous and this Court ought not to consider them at all.

Analysis and Conclusion

[45]It is apparent that on 31st August 2001, the respondents obtained a loan facility from the Bank and in accordance with section 62 of the TRA granted to the Bank an equitable mortgage over their interest in property registered in the Land Titles register Book T11 folio 47. In accordance with section 65 of the TRA and as would be the normal practice, a caveat was presented by the Bank to prevent any dealings with the mortgaged property. It appears to be common ground that the respondents defaulted on their repayments and so the Bank felt entitled to enforce their rights as mortgagee. Before attempting to unravel the issues which arise in this appeal, it is critical that there be a clear understanding of the legal process and procedure engaged by the Bank in the court below.

What is an equitable mortgage and how is it enforced?

[46]An equitable mortgage arises out of a transaction that has the intent but not a form of a formal mortgage that the courts nevertheless will treat as a mortgage. An equitable mortgage is unregistered and does not form a secured interest against a property. It merely represents a promise by the borrower to reserve the relevant equity in the property for the lender when the property is sold. This arrangement should be evidenced via a written agreement between the borrower and the lender outlining certain contractual obligations binding both parties.

[47]An equitable mortgage does not confer legal estate or title in the subject property to the mortgagee (the creditor), but demonstrates a binding intention to create a security in favour of the mortgagee. There is an intention for the property to be charged and disposed of to settle the debt in the event of default or non-payment. There is no protection afforded to an equitable mortgagee that is equivalent to a registered legal mortgagee. Having said that, the next best form of protection for an equitable mortgagee is to lodge a caveat on the property17 to which the mortgagee claims an interest. However, a caveat merely gives notice to the world of the existence of the equitable right claimed and will only entitle the equitable mortgagee to notification of any dealings with the title;18 it does not confer a right to possession of land or power of sale of land.

[48]However, at any time the equitable mortgagee may take steps to convert the equitable mortgage to a legal mortgage by following the procedure prescribed under section 66 of the TRA. It is important to note that it is open to an equitable mortgagee to take this step whether or not an event of default has occurred. However, it makes sense for an equitable mortgagee to take this step because in so doing the equitable mortgagee secures for himself all the powers and privileges of a mortgagee against the registered proprietor. This is important because the equitable mortgagee does not have a legal mortgage, he cannot just proceed to appraise and auction the property if there is a default on the agreement as a legal mortgagee with a power of sale would.

[49]Where (as is contended in this appeal) there is default on the agreement the remedies available to a creditor/mortgagee are prescribed under the TRA which ultimately allows the creditor to obtain a court declaration to sell the land where the mortgagor is in default of the terms of the equitable mortgage. Section 66 of the TRA sets out the steps to be taken by a mortgagee wishing to realise the mortgagor’s property in order to discharge the debt. It provides that: “66. An equitable mortgage may be converted into a mortgage, with all the powers and privileges of a mortgagee against the registered proprietor by way of sale of the land and otherwise, by the equitable mortgagee obtaining the judgment of the Court fixing the amount due to him by the registered proprietor, or obtaining from the debtor a writing accepting a specific sum therein stated as being due by him to the creditor under the equitable mortgage. Whereupon the equitable mortgagee may present the judgment or the writing to the Registrar of Titles, and request him to note upon the certificate of title a mortgage in his favour for the amount of the judgment or accepted balance due, the date to draw back to the date of the caveat, which shall be removed and the noting of the mortgage put on the certificate of title in place thereof. The judgment or writing shall be filed as the authority to the Registrar of Titles for so acting. Where no caveat has been entered, the date of the mortgage shall be the date of presenting the judgment or writing to the Registrar of Titles.” (Emphasis mine)

[50]It follows that the first step for the equitable mortgagee is to obtain a judgment from the high court which fixes the amount due to him by the registered proprietor. Alternatively, the equitable mortgagee could obtain from the debtor/mortgagor written confirmation of the specific sum which is said to be due by him to the creditor under the equitable mortgage. Where however the creditor mortgagee elects to approach the high court for a judgment, the Civil Procedure Rules (Revised Edition) 2023 (“CPR 2023”) now makes it clear that this constitutes a mortgage claim under part 66.1(1)(h)19 and that the appropriate originating procedure prescribed under Part 66.2 is by fixed date claim form.

[51]This procedure is not at all surprising because ultimately there should be very little room for any real factual disputes and these matters should be resolved in fairly short order on the basis of the parties’ sworn evidence.

[52]Unfortunately, the recent amendment to Part 66.1(1)(h) of the CPR 2023 only came into force in 2023. Bearing in mind the relevant chronology here, it is perhaps not surprising that the Bank in this appeal would have filed and served an ordinary claim and statement of claim in the amount of the outstanding sums due. The respondents have not filed an acknowledgement or defence to this claim, the Bank obtained a default judgment which adjudged that the respondents do pay the Bank the sum of $346,012.42 together with interests and costs. In my view, the wording of the default judgment is somewhat unfortunate. Rather than simply reflecting a fixing of the amount due by the respondents, the wording follows the format of a typical money judgment which generally mandates one person to pay a specific amount of money to another person.

[53]The section 66 judgment under the TRA is not and is not intended to operate as a money judgment. Unlike other judgments, a money judgment can be immediately enforced without any additional steps and CPR Part 45 makes clear the means by which a judgment or order for payment of a sum of money (other than an order for payment of money into court) may be enforced.20

[54]The TRA however contemplates an entirely separate regime. Under that Act, the section 66 judgment on the other hand is a precursor, very necessary first step which must be taken by the mortgagee before it can attempt to enforce its rights. The purpose of this judgment is clear. It must be presented to the Registrar of Titles, along with a request to note upon the certificate of title a mortgage in favour of the equitable mortgagee for the amount of the judgment with the date to draw back to the date of the caveat, which shall be removed from the certificate of title and replaced with the now legal mortgage. That judgment serves as the authority to the Registrar of Titles to so act.

[55]As in the case of all registered mortgages, so soon as the Registrar of Titles has noted the mortgage upon the certificate of title, the land contained in the certificate shall be held by the mortgagee in pledge, from the date of the mortgage, for the repayment to him of the principal sum actually advanced and the interest set forth therein.21 In accordance with section 46 of the TRA, the money secured by the pledge of the land is payable at any time or times which may be fixed on the happening of any event or events which may be specified in the memorandum of mortgage, and, if not so paid, the mortgagee may, at any time thereafter, take steps for the sale of the land.

[56]The procedure for the sale of the mortgaged land is prescribed under the TRA at sections 74 - 97. There are several stages commencing with a demand for repayment of the sum lent on the mortgage, or the amount or provision secured by the encumbrance. It requires the mortgagee to serve or cause to be served upon the registered proprietor a formal notice to pay off in Form 14 requiring him to perform the acts therein within sixty days from the date of service. If the registered proprietor does not comply, with the notice to pay off, then the mortgagee may seize the land contained in the certificate of title on which the mortgage or encumbrance is noted. The mortgagee shall also forthwith present to the Registrar of Titles a caveat of seizure, in Form 16 which the Registrar of Titles shall note upon the certificate of title in the same manner as is provided for other caveats to prohibit all dealings with the land seized until the caveat be removed or withdrawn.

[57]If the debt is not paid off or discharged, or the acts required in the notice to pay are not performed, and no new arrangements are made within thirty days from the date of seizure, the mortgagee or seizure shall lodge in the registry of the High Court articles of sale in Form 17 of the said land, and the things accessory to the said land over which the mortgage or encumbrance extends, either in one lot or more lots, as may be thought most likely to bring the highest price, and shall by summons, call upon the registered proprietor, and all other mortgagees and encumbrances, to appear before the court on a day to be specified in the summons, to settle the said articles of sale, to estimate an upset price, to fix the day of sale and to adjust the announcements of sale and the mode of publication thereto. Thereafter, the TRA prescribes the procedure whereby the high court appoints and advertises the date and conditions of sale and provides for how such sale is to be conducted.22

[58]In Rabess, Mitchell JA [Ag.] observed that “[i]t is a long established principle of civil procedure that a final judgment or order may not be enforced unless it is served personally on the party against whom it is sought to be enforced.” However, the learned judge did not identify any authority in support of this conclusion. Instead, he noted that this principle finds modern reflection in CPR 42.6 which provides that unless the court otherwise directs, the court office is to serve every judgment or order on the parties to the claim. In this context, “unless the court otherwise directs” only gives the court a discretion, which is frequently exercised, of ordering one of the legal practitioners instead of the court office to serve the judgment or order.

[59]CPR Part 42.6 clearly contemplates that every judgment or order of the court should be served on any person on whom the court orders it to be served; and every party to the claim in which the judgment or order is made. However, the purpose of such service is not to give validity to enforcement proceedings but rather to bring the fact of and terms of the judgment to the attention of the person served who may wish to appeal or file an application to set aside, vary, discharge or amend the ruling.

[60]The amicus curiae has posited that the procedures set out in sections 74-97 of the TRA set out a comprehensive regime for the mortgagee’s exercise of powers and privileges by way of sale of the encumbered property and affords to the registered proprietor whose property is liable to such sale and she submitted that the raison d’etre of these provisions is clearly not the direct enforcement of a judgment. The objective is not to compel the proprietor to observe the terms of the judgment but to empower the mortgagee to exercise the power of sale.

[61]I am in complete agreement. I also adopt the following reasoning of Farara JA [Ag.] in SAG Motors Ltd et al v National Bank of Dominica,23 in which he commented on the provision at sections 75-97 under the TRA as follows: “[43] Sections 75 to 97 of the Title by Registration Act outline the process by which a mortgagee can seize and sell incumbered property, where a mortgagor has failed to perform the conditions of the mortgage or incumbrance. Accordingly, a mortgagee’s power to sell a mortgagor’s property does not necessarily flow from a judgment but is derived from statute. This means that the mortgagee’s power to enforce its security is not contingent on the mortgagee obtaining a judgment against the mortgagor. In point of fact, in the instant matter, the respondent bank, having obtained the default judgment, proceeded to exercise its statutory power of sale by seizure and sale of the mortgaged property, rather than seeking to enforce the judgment by way of an order for sale.” (Emphasis mine)

[62]In my view, it is significant that relevant provisions (sections 74 – 97 of the TRA) apply generally in the case of all legal mortgages registered on a certificate of title. They are not dependent on a mortgagee having first obtained a judgment from the high court and therefore cannot be described as enforcement proceedings by any definition of the term.

[63]Having said this, it is clear that the section 66 judgment is a judgment of the court (obtained pursuant to CPR Part 12) which on a strict reading of CPR Part 42.6 ought to have been served on the respondents. However, in my judgment, it does not, follow that under the provisions of the CPR or indeed the TRA, that the respondents would be entitled to have the consequential proceedings set aside as of right, ex debito justitiae, or indeed that, if there is such a discretion it can be exercised in only one way. In my judgment, such an approach would be wholly inconsistent with the overriding objective which requires a court to deal with cases justly and economically. A court must look at the individual facts of each case.

[64]In this appeal, it is clear that the proceedings which would have led to the default judgment were properly served on the respondents. It appears to be undisputed that the default judgment is intended to serve as a judgment under section 66 of the TRA fixing the amount owed by the respondents. It is not a money judgment and the proceedings under the TRA are not enforcement proceedings. It simply serves as the authority to the Registrar of Titles to act to convert the bank’s equitable mortgage to a legal one. Once that legal mortgage was noted on the certificate of title, the procedures prescribed under the TRA to realise the Bank’s security are not dependent on any judgment.

[65]Moreover, it is clear that at the time of the master’s judgment, the Bank would have served the default judgment on the counsel for respondents on 15th December 2015. This was the subject of an application by the Bank to have such service deemed proper service on the respondents. That application was eventually granted, and that order has not been appealed.

[66]In my judgment, a court considering this factual scenario would also have to consider whether there was any point in setting aside the TRA proceedings and requiring the Bank to reissue and serve new proceedings. Clearly, no question of limitation arises and given the master’s other findings, there is no other benefit to the respondents in requiring the Bank to start fresh proceedings. In my view, it would clearly be contrary to the overriding objective that the Bank should be required to no useful end. In that regard, I am guided by the judgment of the English Court of Appeal in Nelson v Clearsprings (Management) Limited.24 In that case, the claimants filed a County Court possession claim against the defendant company. The claim form gave notice of the date of the hearing but misstated the defendant’s address. The claim form and particulars of claim were approved for postal service by the court and deemed served. The defendant failed to appear at the hearing and a possession order was granted in its absence. Relying on CPR Rule 39.3(5), the defendant applied to set aside the judgment on the ground that it was unaware of the proceedings. The judge rejected the contention that the defendant was entitled to have the judgment set aside as of right. When the case reached the Court of Appeal, it was common ground that the judgment in question was not a default judgment under CPR Part 12 but one obtained following a hearing under CPR Part 55, so that the set aside provisions of CPR Part 13 did not apply. Sir Anthony Clarke MR gave the judgment of the court and at paragraph 42 of the judgment, he said that having held that 39.3(5) did not apply the appeal must be dismissed. However, he went on: “ 43. It does not, however, follow that under the CPR the defendant is entitled to have the judgment set aside as a right, ex debito justitiae, or indeed that, if there is a discretion it can be exercised in only one way. It was pressed upon us that such an extreme approach is inconsistent with the overriding objective of dealing with cases justly and that, on an application to set aside a judgment (albeit irregularly obtained), a claimant might be able to demonstrate that there will be no point in setting aside the judgment and requiring the claimant to issue and serve new proceedings… 44. The question is whether the CPR permits such an approach. In our judgment, there are procedural ways in which to achieve that result. It was suggested in argument that there are a number of provisions of the CPR which, in combination, could be deployed to achieve it. They are CPR rr 6.9, 3.1(2)(m), 3.1(7) and 3.10.”

[67]The proceedings under the TRA are an entirely fresh set of proceedings under a completely disparate statutory regime which has been properly served on the respondents. The respondents would have the opportunity to respond make representations and challenge any stage of the proceedings including the issuance of the notice to pay, the settling of the articles of sale, the estimate of the upset price and the fixing of the date for the sale. Farara JA [Ag.] in SAG Motors Ltd et al v National Bank of Dominica has described that process as transparent and I fully endorse that description. Certainly, the proceedings have been conducted with the full knowledge and participation of the respondents who would have been fully aware of the default judgment for some time.

[68]I cannot ignore that the foregoing analysis presents a departure from the ratio of Mitchell JA [Ag.] sitting as a single judge of this Court in Rabess. I am therefore obliged to consider whether this Court, consistent with the well-established principle of horizontal stare decisis, is obliged to follow the judgment in Rabess. The rationale for this legal principle is well founded. The doctrine of stare decisis is said to promote certainty in the development and application of the law. In the Privy Council decision in Attorney General of Saint Christopher, Nevis and Anguilla v John Joseph Reynolds,25 Lord Salmon explained the position in the following terms: “So long as there is an appeal from a Court of Appeal to Their Lordships’ Board or to the House of Lords, the Court of Appeal should follow its own decisions on a point of law and leave it to the final appellate tribunal to correct any error in law which may have crept into any previous decision of the Court of Appeal. Neither Their Lordships’ Board nor the House of Lords is now bound by its own decisions, and it is for them, in the very exceptional cases in which this Board or the House of Lords has plainly erred in the past, to correct those errors just as it is for them alone to correct the errors of the Court of Appeal.”

[69]The rules of precedent for the Court of Appeal were laid down in the 1940s in Young v Bristol Aeroplane Co., 26 which prescribed that the Court of Appeal is bound by its own past decision with three exceptions: (i) Where the decision of the Court of Appeal conflicts with a later decision of the House of Lords (or the relevant apex court: CCJ or Privy Council) the Court of Appeal must follow the apex court. (ii) Where there are two earlier conflicting decisions of the Court of Appeal then the later Court of Appeal in a third case must choose between them. (iii) Where an earlier decision of the Court of Appeal was made per incuriam i.e. the earlier Court of Appeal overlooked something that was binding on it such as a statute the later Court of Appeal are not bound to follow their earlier decision.

[70]In this appeal, counsel for the Bank has submitted that Mitchell JA [Ag.]’s holdings at paragraphs 7 and 12 in Rabess (as to the necessity of service prior to enforcement of a default judgment) were made based on an assumption of a proposition of law and thus were made per incuriam and that the master was therefore not bound by these statements. This submission, however, is not consistent with the established legal principle.

[71]In John Shrimpton and Another v Dominic Scriven et al27 this Court was confronted with a similar argument. At paragraph 6 of the judgment, Gonsalves JA [Ag.] writing for the Court summarily disposed of the argument in the following clear terms: “ …the insurmountable obstacle faced by the appellants here is that the per incuriam principle is relevant only to the right of an appellate court to decline to follow one of its own previous decisions, or a decision of a court of coordinate jurisdiction. It does not relate to its right to disregard a decision of a higher appellate court or (more relevant to this case) the right of a judge of the High Court to disregard a decision of the Court of Appeal. No such right exists.”

[72]I can only endorse and apply this reasoning in this appeal.

[73]The facts of Rabess are largely on par with the facts before the learned master and even involve the same respondents. Like the National Bank of Dominica, the Bank entered into a loan with the respondents and the respondents defaulted on the loan. The Bank also initiated a suit regarding the debt owed and, whereas in Rabess the respondents failed to file a defence, the respondents here failed to file an acknowledgement of service. Like the National Bank of Dominica, the Bank sought and obtained default judgment against the respondents. The Bank then sought to settle the articles of sale and during this process, the respondents asserted that they were never served with the default judgment. Whereas the Bank in this case sought to serve the default judgment and applied for the court to deem service as proper, it would appear that this route was not adopted by the National Bank of Dominica.

[74]Looking solely at the facts of the two cases, the master would have been correct to have resorted to the decision in Rabess as the factual circumstances are on par with each other. It is also true that in both matters the issue arose as to the effect of a failure to serve a default judgment on proceedings taken subsequent to the entry of the default judgment, the master failed to go on to consider the other issues which arose on the applications before her. The Rabess decision was binding on the High Court and the learned master was therefore correct in holding that she was so bound.

[75]However, the Bank’s position does not end there. Although agreeing that this Court is generally bound by its own decisions, Counsel for the Bank argued that under CPR Part 62.16A, the Full Court may vary, discharge or revoke the decision of a single judge and she urged this Court to decline to follow the decision in Rabess on the basis that it is per incuriam.

[76]As indicated, the authoritative law on this issue prescribes that this court is bound to follow its own decisions – save in closely defined circumstances.28 The term per incuriam generally speaks to a decision given in ignorance of the terms of a statute or a rule having the force of statute. In Morelle Ltd v. Wakeling29 the principle “per incuriam” was stated as applying to decisions given in ignorance of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong.

[77]The decision in Rakhit v Carty30 provides a useful example. In that case, a previous decision was found to be within the normal categories of per incuriam, because the earlier decision was made in ignorance of a relevant statutory provision, which showed it to be wrong. The earlier decision was therefore not followed.

[78]In Young v Bristol Aeroplane, Lord Greene M.R. confirmed the rarity of a finding of per incuriam. At page 729 of the judgment he observed, that such cases “would obviously be of the rarest occurrence and must be dealt with in accordance with their special facts. In Miliangos v. George Frank Textiles Ltd.,31 after reviewing a number of cases Lord Denning at page 503 pointed out that; “So it has been held that a decision is not given per incuriam because the argument was not “fully or carefully formulated”; see Morelle Ltd. v Wakeling [1955] 2 Q.B. 379. 399, or was “only weakly or inexpertly put forward: Joscelyne v Nissen [1970] 2 Q.B.86, 99; nor that the reasoning was faulty: Barrington v Lee [1972] 1 Q.B. 326, 345 by Stephenson L.J. To these I would add that a case is not decided per incuriam because counsel have not cited all the relevant authorities or referred to this or that rule of court or statutory provision.”

[79]The court in Young v Bristol Aeroplane however did not close the door to the possibility that beyond the normal ambit of the per incuriam rule other examples of [1990] 2 QB 315. cases could exist where a court of co-ordinate jurisdiction could refuse to follow its earlier decision. As the court highlighted, such cases would turn on their own special facts32: “It remains to consider the quite recent case of Lancaster Motor Co. (London) v. Bremith, Ld. (6), in which a court consisting of the present Master of the Rolls, Clauson L.J. and Goddard L.J., declined to follow an earlier decision of a court consisting of Slesser L.J. and Romer L.J. (1). This was clearly a case where the earlier decision was given per incuriam. It depended on the true meaning (which in the later decision was regarded as clear beyond argument) of a rule of the Supreme Court to which the court was apparently not referred and which it obviously had not in mind. The Rules of the Supreme Court have statutory force and the court is bound to give effect to them as to a statute. Where the court has construed a statute or a rule having the force of a statute its decision stands on the same footing as any other decision on a question of law, but where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the position is very different. It cannot, in our opinion, be right to say that in such a case the court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples of decisions given per incuriam. We do not think that it would be right to say that there may not be other cases of decisions given per incuriam in which this court might properly consider itself entitled not to follow an earlier decision of its own. Such cases would obviously be of the rarest occurrence and must be dealt with in accordance with their special facts.” (Emphasis added)

[80]In Desnousse v Newham London Borough Council and others,33 the English Court of Appeal described these as an “exceptional residual category of cases” and referenced examples of such decisions including Williams v Fawcett34 where the court refused to follow previous decisions which it held were subject to a manifest slip or error as to the procedure to be followed as regards committal, and Rickards v Rickards35 where the court followed Williams v Fawcett in relying on the exceptional residual category of cases not defined in Young v Bristol Aeroplane Co Ltd. In Rickards v Rickards, the court refused to follow a previous decision of the court because, although the relevant House of Lords decision had been cited, 32 Young v Bristol Aeroplane at pages 728 - 729 the later court held that the earlier court had misread or misunderstood the House of Lords case. It was a significant feature of the latter case that there was no possibility of an appeal to the House of Lords if the previous decision were to be followed.

[81]Assuming that the full court would be bound by the decision of a single judge,36 in order to fit this case into the established principles about per incuriam, the Bank would have to demonstrate that the earlier court (Mitchell JA [Ag.] sitting as a single judge) overlooked some binding authority or relevant statutory provisions, or rules of statutory force. This Court could also decline to follow the decision of Mitchell JA [Ag.] in Rabess if this Court considered that based on its own special facts, the case fell within the exceptional residual category of cases which are not strictly per incuriam as highlighted in Young v Bristol, but where the Court might consider itself not entitled to follow an earlier decision of its own.

[82]It is clear that the present case does not have the feature of a previous apex court decision with which the earlier Court of Appeal decision could be said to be inconsistent. The Bank’s case is that the decision in Rabess, (insofar as it held that the failure to serve the default judgment invalidated all subsequent proceedings under the TRA), does not correctly interpret and apply the statutory provisions of the TRA or the CPR.

[83]I am compelled to agree. For the reasons already set out, I am satisfied that this Court should depart from the decision in Rabess. There is nothing in Rabess to show that the learned judge gave any consideration to the totality of legislative provisions set out in the TRA or to their effect. This is borne out when he equated the procedures under the TRA with enforcement proceedings of a judgment. This is clearly not the case. As it pertains to sections 74-97 of the TRA, these provisions detail the legal rights of a mortgagee to sell the encumbered land. At play therefore is the exercise of the mortgagee’s statutory and legal rights to realise his security when there has been a default under the provisions of the mortgage. These rights are not contingent on the existence of any judgment or order of the court or the service on the mortgagor/defendant of the default judgment. Sections 74-97 therefore are not enforcement proceedings within the CPR and it is difficult to escape the conclusion that the decision was reached without the attention of the court having been drawn to the significance of this distinction.

[84]The judgment obtained pursuant to section 66 of the TRA only becomes relevant where an equitable mortgagee elects to take steps to convert the equitable mortgage to a legal mortgage, a necessary precursor to exercising the rights of a legal mortgagee under the TRA. Service of that judgment fixing the sum owed may well have been prescribed by CPR Part 42.6, but where service would not have been effected, invalidating the TRA procedures which followed on the basis relied upon by the judge in Rabess was fallacious. In reaching the conclusion, the learned Judge appears to have also overlooked the overriding objective and the judicial authorities such as Nelson v Clearsprings (Management) Limited which would have mandated him to consider whether there was any point in setting aside the TRA proceedings and requiring the Bank to reissue and serve new proceedings. In my judgment, therefore, the reasoning in Rabess cannot be sustained and this Court should depart from it.

[85]In arriving at this conclusion, I have taken some comfort in the fact that the substantive interlocutory appeal in Rabess was not heard by the Full Court but rather a single judge of the Court who would have determined the appeal on papers. The vires of the exercise of such jurisdiction was put beyond doubt in the decision in KMG International NV v DP Holding SA (a company incorporated under the laws of Switzerland) 37 in which Pereira CJ, writing for the Court would have held that: “The power or jurisdiction given in relation to an appeal is that of the Court, and not that of a single judge, and which power may, in certain circumstances, in essence be delegated to a single judge of the Court, with the Court retaining the overarching power of reviewability in the circumstances. It is now well settled that a single judge of the Court has no power to hear and determine an appeal. A single judge’s jurisdiction can only arise in the context of a pending appeal, whether through the avenue of rule 27 of the Court of Appeal Rules, or through CPR 62.16. Although the Court may permit certain of its powers to be exercised by a single judge, that permission does not thereby operate to deprive the Full Court of the power vested in it by statute or its inherent jurisdiction to review the single judge’s exercise of that power.” Emphasis added

[86]This dictum reinforces my view that it is open to this Court to decline to follow Rabess. I regard this as one of those rare cases which falls within that “exceptional residuary category” described in Desnousse v Newham London Borough Council.

[87]Finally, and without making any definitive findings on the point, I am also inclined to the view that the Full Court would in any event be at liberty to depart from a previous decision of a single judge where it considers that that decision (although not strictly classified as per incuriam) was plainly wrong. In that regard, I have considered the English decision in Ronex Properties Ltd. v John Laing Construction Ltd. and others38 in which Donaldson LJ suggested that the Court of Appeal, sitting as a panel of three, is not ‘strictly bound’ by decisions of a panel of two. Also, in Welsh Development Agency v Redpath Dorman Long Ltd.,39 Glidewell LJ, also sitting as part of a panel of three, considered it permissible to relax the ordinarily strict rules of stare decisis in the Court of Appeal to depart from an earlier decision of a two- judge court. At pages 1422 – 1423 of the judgment, the Court observed: “In Howe v. David Brown Tractors (Retail) Ltd. [1991] 4 All E.R. 30 Nicholls and Stuart-Smith L.JJ. felt able to distinguish and thus not be bound by the decision in Kennett v. Brown [1988] 1 W.L.R. 582. In our view we cannot take that course. We believe that if we are not to follow that decision we are obliged to say boldly that the reasoning in Kennett v. Brown was wrong. We are able to do so because that was a decision of a court consisting of two Lords Justices in an interlocutory matter, in extempore judgments. We, though also sitting on an interlocutory appeal, are a court of three Lords Justices. That we have the power to disagree with, and overrule, a previous decision of a court of two Lords Justices in an interlocutory appeal is clear from the decision of this court in Boys v. Chaplin [1968] 2 Q.B. 1: see the judgments of Lord Denning M.R., at p. 23C–G, of Lord Upjohn, at p. 30B, and of Diplock L.J., at p. 36B–C.”

[88]While I fully appreciate that in England and Wales, more recent authorities40 have seemingly considered that the ordinary rules of stare decisis apply to the Court of Appeal, regardless of whether two or three judges happen to be sitting, this appears to be premised on legislative reforms which have specifically removed the distinction between the kind of cases determined by panels of two compared to panels of three (modern conditions)41 which have not been replicated here within the Eastern Caribbean.

[89]The provisions of the ECSC CPR 2000 and CPR 2023, have not removed the distinction between substantive and interlocutory appeals and in fact, maintain that any order, direction or decision made or given by a single judge may be varied, discharged or revoked by two judges where the order, direction or decision relates to an appeal of a class which may be heard and determined by two judges and by the Full Court in any case.42 At paragraph 8 of KMG International NV v DP Holding SA (a company incorporated under the laws of Switzerland) the learned Chief Justice would have highlighted this distinction when she observed: “….As discussed above, a single judge of the Court may not by rules of court exercise any powers of the Court involving the determination of an appeal. This is a limitation placed by statute. Accordingly, a single judge may only exercise the power of the Court in relation to an application made in a cause or matter pending before the Court and which is not determinative of that cause or matter. In short, although the Court may permit certain of its powers to be exercised by a single judge, that permission does not thereby operate to deprive the Full Court of the power vested in it by statute or its inherent jurisdiction to review the single judge’s exercise of that power. On the basis that the single judge could exercise the Court’s power to strike out the counter notice, it was clearly within the power of the Full Court to review the single judge’s decision thereon.” Emphasis added

[90]For the reasons set out herein, I am satisfied that the learned master would have been led into error by Rabess. The conclusions reached herein are sufficient to dispose of the appeal in its entirety and it is therefore not necessary for me to go on to consider in detail the third issue raised on the appeal. It follows that the appeal must be allowed, and the orders made by the learned master set aside.

Disposal and Order

[91]Based on the foregoing, I hereby make the following orders: (i) The appeal is allowed. (ii) The master’s decision made on 29th June 2016 which rendered all proceedings taken by the Bank consequent to the entering of the judgment on 24th September 2003 null and void and of no effect, is hereby set aside. (iii) The respondents shall pay the appellant’s costs on the appeal to be assessed by a judge of the high court, if not agreed, within 21 days of the date of this judgment.

[92]I wish to thank all parties for their very helpful submissions. I concur. Eddy Ventose Justice of Appeal I concur.

Gerard St. C. Farara

Justice of Appeal [Ag.]

By the Court

Chief Registrar

THE EASTERN CARIBBEAN SUPREME COURT IN THE COURT OF APPEAL COMMONWEALTH OF DOMINICA DOMHCVAP2016/0010 BETWEEN: THE BANK OF NOVA SCOTIA Appellant and

[1]JOYCE ERIN RABESS

[2]ANISON RABESS Respondents Before: The Hon. Mde. Vicki Ann Ellis Justice of Appeal The Hon. Mr. Gerard St. C Farara Justice of Appeal [Ag.] The Hon. Mr. Eddy Ventose Justice of Appeal [Ag.] Appearances: Ms. Joelle Harris and Ms. Noelize Knight-Didier for the appellant Mr. David Bruney for the respondents Ms. Hazel Johnson and Ms. Lisa de Freitas appearing amicus curiae ____________________________ 2023: Dec 8; 2024: July 22. ____________________________ Civil appeal – Default judgment – Service of default judgment – The doctrine of stare decisis – Whether the learned master erred by finding that she was bound to follow the decision of Mitchell JA [Ag.] in Anison Rabess et al v National Bank of Dominica – Title by Registration Act – Exercise of mortgagee’s rights under the TRA – Section 66 of the TRA – Conversion of equitable mortgage to legal mortgage – Appellant’s failure to serve default judgment prior to taking steps under the TRA for conversion of the equitable mortgage to legal mortgage – Whether service of a default judgment is a condition precedent to mortgagee taking steps under section 66 of the TRA – Enforcement of judgments under the CPR – Whether proceedings under the TRA are enforcement proceedings governed by the CPR – Whether the master erred by ruling that the Bank’s failure to serve the default judgment rendered all steps taken by the Bank pursuant to the TRA null and void and of no effect On 31st August 2001, the respondents obtained a loan facility from the Bank of Nova Scotia (“the Bank” or “the appellant”) and in accordance with section 62 of the Title by Registration Act (the “TRA”), an equitable mortgage was granted to the Bank over the respondents’ interest in property registered in the Land Titles Register Book. As per section 65 of the TRA, a caveat was presented by the Bank to prevent any dealings with the mortgaged property and this caveat was noted on the certificate of title for the property. The respondents defaulted on their loan obligations and the Bank commenced a claim against them on 26th August 2002 to recover the sum of $346,012.42 which the Bank claimed was due and owing on the loan. The respondents failed to file an acknowledgement of service and on 22nd October 2002, the Bank filed a request for entry of judgment in default of acknowledgement of service. The Bank requested that judgment be entered for the sum of $354,341.66. On the same date, 22nd October 2002, the Bank filed a draft judgment in default. Judgment in default was subsequently granted to the Bank and the default judgment, was filed on 29th September 2003, although dated 24th September 2002. After the entry of judgment in default, the judgment was presented to the Registrar of Titles on 16th July 2004 and a legal mortgage dating back to the date of the caveat was noted on the certificate of title and the caveat was removed, in accordance with section 66 of the TRA. On 3rd December 2015, the respondents filed an application to set aside the default judgment entered on 24th September 2002 and they also sought an order that all enforcement proceedings predicated on the purported default judgment be set aside and declared null and void. On 7th December 2015 the Bank filed an ex-parte application for an order that the default judgment be corrected to 24th September 2003 rather than 24th September 2002. The Bank -contended that by accidental slip, the incorrect year was inserted in the default judgment. This ex-parte application was granted by Thomas J, who ordered that the date of the default judgment be corrected to 24th September 2003 under Part 42.10 of the Civil Procedure Rules 2000 (the “CPR” or “CPR 2000”). On 15th October 2015, the Bank served the default judgment on counsel for the respondents and on the same date, filed an application pursuant to CPR Part 26.9 for the court to deem service of the default judgment on counsel for the respondents as proper service, and to have all matters put right without invalidating any steps taken in the proceedings after judgment. The respondents’ filed an amended application on 31st December 2015 seeking an order that: (i) the default judgment entered on 24th September 2003 be set aside; (ii) the amended judgment obtained by order of Thomas J be set aside; (iii) all enforcement proceedings predicated on the purported default judgment be set aside and declared null and void; and (iv) the Bank pay to the respondents all sums obtained or realised in enforcing the purported default judgment from 2003 to date together with interest at the prevailing banker’s rate. Applying Part 11.16(1) of the CPR 2000, the learned master set aside Thomas J’s order and reheard the Bank’s application to correct the date of the default judgment. The master found that there was indeed an accidental slip since the Bank’s application for entry of judgment in default was filed in October 2002 and default judgment could not have been granted before the request had been made. Consequently, under the slip rule (rule 42.10 of the CPR 2000), the Bank’s application was granted, and the date of the default judgment changed to 2003. The master also found that there was no basis for setting aside the default judgment since, contrary to the respondents’ argument, judgment had not been entered for an excessive amount. The respondents also sought to set aside all enforcement proceedings predicated on the default judgment on the basis that the default judgment had not been personally served on them. It was submitted that even with the corrected date of September 2003, the default judgment was only served on the respondents on 15th October 2015. The respondents relied strongly on the appellate judgment in Anison Rabess et al v National Bank of Dominica (“Rabess”). The Bank countered that the application for an order for the sale of the land was brought under the TRA and did not constitute enforcement of the judgment since: (i) CPR Part 45 sets out the various methods for enforcing a judgment; (ii) money judgments may be enforced, inter alia, by an order for seizure and sale of goods under CPR Part 46; (iii) CPR Part 46 defines writ of execution as including an order for sale of land; and (iv) proceedings under Part V of the TRA are not referred to in the TRA or the CPR as a method of enforcement. The Bank further submitted that the master would not be bound by the decision in Rabess because the statements by Mitchell JA [Ag.] were obiter and would not be binding. The master ultimately found that the facts of Rabess were almost identical to the facts before her. She was unable to agree with the Bank’s argument that Mitchell JA’s [Ag.] statements were obiter and she determined that she was bound to follow Mitchell JA’s [Ag.] appellate decision. Having found that service of the default judgment was only deemed to have been effected on the respondents on 15th October 2015, the learned master consequently ordered that all proceedings taken consequent to the entering of the default judgment on 24th September 2003, were null and void and of no effect. Having found that the respondents had succeeded only on some portions of their application, the master made no order as to costs. Being dissatisfied with the learned master’s ruling, the Bank appealed. The Bank initially lodged 9 grounds of appeal however, during the oral hearing, counsel for the Bank, indicated that they would not be proceeding with grounds 3 and 4 of their notice of appeal, effectively conceding that Mitchell JA’s [Ag.] statements in Rabess at paragraphs 7 and 12 were not obiter dicta and formed part of the ratio decidendi in that case. Three main issues therefore arose for determination by the Court from the seven remaining grounds of appeal: (i) Whether the learned master erred by finding that she was bound to follow the decision of Mitchell JA [Ag.] in Rabess; (ii) Whether the master erred by ruling that the Bank’s failure to serve the default judgment rendered all steps taken by the Bank pursuant to the TRA null and void and of no effect; and (iii) Whether the master erred by failing to determine the appellant’s application under CPR Part 26.9 to put matters right notwithstanding their failure to serve the default judgment in 2003 and only serving same in 2015. Held: allowing the appeal, setting aside the decision made by the learned master on 29th June 2016 which rendered all proceedings taken by the Bank consequent to the entering of the default judgment on 24th September 2003 null and void and of no effect, and ordering that the respondents pay the appellant’s costs on the appeal, such costs to be assessed by a judge of the high court, if not agreed, within 21 days of the date of this judgment, that:

[3]The respondents defaulted on their loan obligations and the Bank commenced a claim against them on 26th August 2002 to recover the sum of $346,012.42 which the Bank claimed was due and owing on the loan. The respondents failed to file an acknowledgement of service and on 22nd October 2002, the Bank filed a request for entry of judgment in default of acknowledgement of service. The Bank requested that judgment be entered for the sum of $354,341.66. On the same date, 22nd October 2002, the Bank filed a draft judgment in default.

[4]Judgment in default was granted to the Bank and the default judgment, which was dated 24th September 2002, was filed on 29th September 2003.

[5]After the entry of judgment in default, the following notable events took place: (i) In accordance with section 66 of the TRA, the judgment was presented to the Registrar of Titles on 16th July 2004 and a legal mortgage dating back to the date of the caveat was noted on the certificate of title and the caveat was removed. (ii) On 17th November 2004, pursuant to section 74 of the TRA, a notice to pay off, which referenced the terms of the judgment against the respondents, was served on the respondents. (iii) In November 2004, on the instructions of the respondents, the Bank presented the certificate of title at the Land Registry for the recording of a sale to one Devertson John of 10,860 sq. ft of the mortgaged property. The purchase monies were forwarded directly to the appellant. (iv) In accordance with section 88 of the TRA, a new notice to pay off was served on the respondents on 11th January 2006, which also referenced the default judgment and its terms. (v) On 29th March 2006, the property was duly seized under section 75 of the TRA. A caveat of seizure in favour of the Bank was placed on the certificate of title in accordance with section 77. (vi) In February 2007, the Bank withdrew the caveat of seizure to allow for a sale by the respondents of 15,000 sq. ft of the mortgaged property. The purchase monies were paid to the Bank. (vii) In February 2008, a further sale was noted on the certificate of title with the purchase monies forwarded to the Bank and the caveat of seizure was duly re-noted on the certificate. (viii) On 6th June 2014, the respondents were summoned to court in accordance with section 78 of the TRA, to settle articles of sale. (ix) In August 2014, a further sale of .75 acres of the mortgaged property was noted on the certificate, with the purchase monies forwarded to the Bank. (x) On 23rd July 2015, the application to settle the articles of sale was served on the respondents. (xi) On 29th September 2015, the respondents indicated, for the first time, that they had not been served with the default judgment.

[6]On 3rd December 2015, the respondents filed an application to set aside the default judgment entered on 24th September 2002 and they also sought an order that all enforcement proceedings predicated on the purported default judgment be set aside and declared null and void.

[7]On 7th December 2015 the Bank filed an ex-parte application for an order that the default judgment be corrected to 24th September 2003 rather than 24th September 2002. The application was based on the fact that by accidental slip, the incorrect year was inserted in the default judgment. This ex-parte application was granted by Thomas J, who ordered that the date of the default judgment be corrected to 24th September 2003 under rule 42.10 (the slip rule) of the Civil Procedure Rules 2000 (the “CPR” or “CPR 2000”).

[8]On 15th October 2015, the Bank purported to serve the default judgment on counsel for the respondents and on the same date, filed an application pursuant to rule 26.9 of the CPR 2000, for the court to deem service of the default judgment on counsel for the respondents as proper service, and to have all matters put right without invalidating any steps taken in the proceedings after judgment. It was reflected in the learned master’s judgment that this application was granted by the court. Decision in the Court Below

[9]Before the master in the court below was the respondents’ amended application filed on 31st December 2015 in which the respondents sought orders that: (i) the default judgment entered on 24th September 2003 be set aside; (ii) the amended judgment obtained by order of Thomas J be set aside; (iii) all enforcement proceedings predicated on the purported default judgment be set aside and declared null and void; and (iv) the Bank pay to the respondents all sums obtained or realised in enforcing the purported default judgment from 2003 to date together with interest at the prevailing banker’s rate.

[10]Applying Part 11.16(1) of the CPR 2000, the learned master set aside Thomas J’s order and reheard the Bank’s application to correct the date of the default judgment. The master found that there was indeed an accidental slip since the Bank’s application for entry of judgment in default was filed in October 2002 and default judgment could not have been granted before the request had been made. Consequently, under the slip rule (rule 42.10 of the CPR 2000), the Bank’s application was granted, and the date of the default judgment changed to 2003.

[11]The master also found that there was no basis for setting aside the default judgment since, contrary to the respondents’ argument, judgment had not been entered for an excessive amount.

[12]In their application, the respondents also sought to set aside all enforcement proceedings predicated on the default judgment on the basis that the default judgment had not been personally served on them. Even with the corrected date of September 2003, the default judgment was only served on the respondents on 15th October 2015. The respondents relied strongly on the appellate judgment in Anison Rabess et al v National Bank of Dominica where Mitchell JA [Ag.] stated that “if a default judgment is to be capable of being enforced it must be personally served on the defendants: CPR 42.6 applies.” Having found that there was no evidence that the default judgment in that case had been served on the defendants. Mitchell JA therefore held that the default judgment was not capable of being enforced by an order for the sale of property and at paragraph 12 concluded: “The Bank has not denied that the default judgment was never served on Mr. and Mrs. Rabess, far less has it provided the court with proof of service. In the circumstances, I would consider that omission to be an admission that the judgment was not in fact served. All proceedings consequent to the entering of the judgment would then be defective, null and void and of no effect. If the Bank is satisfied that the judgment is correct, it must serve it on Mr. and Mrs. Rabess, file the appropriate proof of service, and proceed from there.”

[13]The Bank countered that the application for an order for the sale of the land was brought under the TRA and did not constitute enforcement of the judgment since: (i) CPR 45 sets out the various methods for enforcing a judgment; (ii) money judgments may be enforced, inter alia, by an order for seizure and sale of goods under CPR 46; (iii) CPR 46 defines writ of execution as including an order for sale of land; and (iv) proceedings under Part V of the TRA are not referred to in the TRA or the CPR as a method of enforcement.

[14]The Bank also submitted that the enforcement of judgments, as against properties brought under the TRA are specifically dealt with in Part V of the TRA which sets out the procedure for a judgment creditor to apply for an order for the sale of land. Consequently, pursuant to CPR 2.2(3), CPR 46 had no application since the procedure set out in Part V of the TRA applied.

[15]The Bank further submitted that the master would not be bound by the decision in Rabess because the statements by Mitchell JA [Ag.] were obiter and would not be binding.

[16]The master ultimately found that the facts of Rabess were almost identical to the facts before her. She was unable to agree with the Bank’s argument that Mitchell JA’s [Ag.] statements were obiter and she determined that she was bound to follow Mitchell JA’s appellate decision. The National Bank of Dominica, like the appellant, filed an application for an order for the sale of land following the entry of judgment in default. There was no evidence in that case that the default judgment was personally served on the appellants in that case. The Court ruled that in the absence of service, all proceedings taken upon the default judgment were null and void.

[17]Having found that service of the default judgment was only deemed to have been effected on the respondents on 15th October 2015 by an order of the court dated 22nd February 2016, the learned master consequently ordered that all proceedings taken consequent to the entering of the default judgment on 24th September 2003, are null and void and of no effect. Having found that the respondents had succeeded only on some portions of their application, the master made no order as to costs.

[18]Being dissatisfied with the learned master’s ruling, the Bank appealed. The Appeal

[19]The Bank initially lodged 9 grounds of appeal in its notice of appeal filed on 20th December 2016. However, during the oral hearing, counsel for the Bank, Ms. Harris, indicated that they would not be proceeding with grounds 3 and 4 of their notice of appeal (stated as grounds C and D in the notice of appeal), effectively conceding that Mitchell JA [Ag.]’s statements in Rabess at paragraphs 7 and 12 were not obiter dicta and formed part of the ratio decidendi in that case. That left the remaining 7 grounds of appeal as follows: (i) The learned master erred when she failed to distinguish the legal issues and legal arguments for consideration before Mitchell JA [Ag.] in Rabess from those before her for consideration. (ii) The master erred when she failed to consider/find that the conversion of an equitable mortgage to a legal mortgage under section 66 of the TRA did not amount to enforcement proceedings. (iii) The master erred in finding that the statements of Mitchell JA [Ag.] created binding precedent on the question of whether all proceedings taken under the TRA after a judgment is obtained are enforcement proceedings for the purposes of CPR 2000. (iv) Having found, following the statements of Mitchell JA [Ag.] in Rabess, that the proceedings taken under Part V of the TRA amounted to enforcement proceedings governed by the CPR 2000, the master further erred by failing to find that CPR 42.2 applied to bind the respondents to the terms of the default judgment since they had been notified of the terms of the said judgment via the notice to pay off served on them on 17th November 2004. (v) Having found that CPR 2000 applied to the proceedings taken under Part V of the TRA, the master erred in law by failing to exercise her discretion and invoke CPR 1.1(1) and CPR 1.2 in determining the meaning and effect of CPR 42.6 and CPR 6.1. (vi) The master erred in relying on the statements of Mitchell JA [Ag.] that enforcement proceedings may not be taken before a default judgment is served and that any such proceedings taken before the said judgment is served are defective, null and void and of no effect. (vii) Having found that CPR 2000 applied to the proceedings taken under Part V of the TRA, and in light of the fact that no sanction or consequence for non-service of a judgment is specified in the CPR 2000, the master further erred in law and in principle by failing to consider the Bank’s application requesting that the court exercise its discretion under CPR 26.9 and grant an order that: (1) Service of the default judgment on 15th October 2015 on counsel for the respondents be deemed proper service; (2) Such service rectified the procedural error of the said default judgment having not previously been served on the respondents and pursuant to CPR 26.9(2) this did not invalidate the steps taken in the proceedings following obtaining judgment and (3) All matters are thereby put right in accordance with CPR 26.9(3). The issues on appeal

[20]This Court is tasked with determining whether the learned master erred in setting aside all proceedings taken by the Bank consequent upon the entering of the default judgment on 24th September 2003 due to the Bank’s failure to serve the respondents in 2003 and only effecting service on the respondents on 15th October 2015. In order to determine this, the following issues arise: (i) Whether the learned master erred by finding that she was bound to follow the decision of Mitchell JA [Ag.] in Rabess; (ii) Whether the master erred by ruling that the Bank’s failure to serve the default judgment rendered all steps taken by the Bank pursuant to the TRA null and void and of no effect; (iii) Whether the master erred by failing to determine the appellant’s application under Part 26.9 to put matters right notwithstanding their failure to serve the default judgment in 2003 and only serving same in 2015. The Bank’s submissions

[21]Counsel for the Bank asserted that the master was wrong to consider herself bound by the decision of Mitchell JA [Ag.] in Rabess. In summary, she argued that the issues before the learned master were different from those before Mitchell JA [Ag.] and so the master erred by failing to distinguish Rabess on that basis. Counsel submitted that Mitchell JA [Ag.]’s statements at paragraphs 7 and 12 in Rabess were made based on an assumption of a proposition of law and thus, were of non-binding effect. She therefore concluded that Mitchell JA [Ag,]’s statement as to the necessity of service prior to enforcement of a default judgment was made per incuriam and the master was therefore not bound by it.

[22]Counsel for the Bank noted that the issues which confronted the master in the court below were: (i) whether the proceedings under Part V of the TRA, following judgment and leading to the sale of the encumbered property, were enforcement proceedings; and (ii) if they were enforcement proceedings, whether CPR 26.9 could have rectified all matters and consequently, the steps taken by the Bank under the TRA prior to service of the default judgment should not have been rendered null and void.

[23]The Bank argued that the master should have distinguished Rabess because the issue of whether the proceedings amounted to enforcement proceedings of a money judgment was neither before the court at first instance in Rabess nor before Mitchell JA [Ag.] on appeal. It follows that Mitchell JA [Ag.] did not need to, nor did he make a finding as to whether the proceedings amounted to enforcement proceedings. Consequently, his statement referring to the proceedings as “enforcement of the default judgment” is not binding and the learned master ought to have applied her own deliberate judgment to this issue based on the facts before her. She failed to do so. Counsel therefore submitted that the learned master therefore erred when she failed to distinguish the legal issues and legal arguments for consideration before Mitchell JA [Ag.] in Rabess from those before her for consideration.

[24]Counsel Ms. Harris contended that while an inferior court is generally bound to follow every part of the ratio decidendi of a decision of a superior court, where a superior court assumes a proposition of law to be correct simply because counsel in the case has agreed to it, or did not dispute it, that part of the court’s decision is not binding authority for the proposition. She cited the decision of Baker and another v The Queen which was applied in Barrs and others v Bethel and others. In Baker, Lord Diplock noted that a proposition of law assumed to be correct since it was not disputed by the parties, may be incorporated into the ratio decidendi of the particular case, but because it does not bear the authority of an opinion reached by the court itself, it does not create a precedent for use in the decision of other cases.

[25]Counsel further cited the case of Re Hetherington (deceased) Gibbs v McDonnell and another in support of this proposition. The Bank thus submitted that Mitchell JA [Ag.]’s description in Rabess of the steps taken by the National Bank of Dominica under the TRA as “enforcement of the default judgment” was not disputed by the parties and the Court never applied its mind to the issue of whether the steps amounted to enforcement proceedings under the CPR. She therefore submitted that the learned appellate judge’s statements were not of binding effect since they were based on an assumption of a proposition of law.

[26]Taking this point further, Counsel also submitted that although this Court is generally bound by its own decisions, under CPR 62.16A the Full Court may vary, discharge or revoke the decision of a single judge and in any event, this Court may refuse to follow a decision given per incuriam. Counsel Ms. Harris cited Baker where Lord Diplock referred to the per incuriam rule as set out in Young v Bristol Aeroplane Co Ltd, that a court may refuse to follow one of its previous decisions where the decision was made per incuriam.

[27]The Bank argued that the master erred by finding that Mitchell JA [Ag.]’s statement at paragraph 7; that it is a long-established principle of civil procedure that a final judgment or order may not be enforced unless it is served personally on the party against whom it is sought to be enforced; was binding authority since the decision was made per incuriam. She argued that as per CPR 6.1 and 42.6, the default obligation is on the court office and not the parties, to effect service of judgments. At the time of obtaining the default judgment, there was no order for the Bank to serve the default judgment on the respondents.

[28]Furthermore, under CPR 42.2, a party notified of the terms of a judgment, or who was represented when a judgment was given, is bound by the said judgment even if it had not been served on them. Consequently, counsel asserted that Mitchell JA [Ag.]’s statement that CPR 42.2 only has relevance to contempt and other similar proceedings and did not appear to be based on a proper consideration of the provisions of the CPR related to the service and enforcement of judgments and orders. Citing the decision of David Goldgar et al v Wycliffe H. Baird, counsel argued that an isolationist approach defies the ordinary canons of construction, and the court should interpret the rules in a manner that is coherent and consistent. As the CPR itself does not state that a party cannot enforce a judgment or order unless it is served on the party against whom the judgment had been obtained, it therefore could not be interpreted to have the effect of barring a successful party from enforcing a judgment before the obligation on the court office was discharged or the judgment served.

[29]Counsel for the Bank contended that even if the master was correct to state that service was necessary prior to the enforcement of a default judgment, the proceedings taken by them under the TRA were not enforcement proceedings. Counsel posited that the master erred by failing to find that the conversion of an equitable mortgage under section 66 of the TRA was not enforcement proceedings for the purposes of the CPR. Counsel contended that the steps taken pursuant to section 66 following judgment, and the provisions of sections 74-97 were not enforcement proceedings but proceedings for the conversion of the equitable mortgage and for the mortgagee to exercise his right of sale over the encumbered land specifically provided for by statute. There is no requirement for service of the judgment under section 66, nor is it a condition precedent to the conversion of the equitable mortgage that the judgment referred to in section 66 be served.

[30]Moreover, sections 74-97 of the TRA which deal with the sale of the encumbered land specifically set out the timelines and documents to be served therein. These sections are silent as to service of a judgment prior to engaging these provisions. The mortgagee therefore need only return to court when, under section 78, he wishes to settle the articles of sale. Consequently, the proceedings for the sale of the mortgaged property under Part V of the TRA do not amount to enforcement proceedings under Parts 35, 46 or 53 of CPR 2000. Counsel for the Bank also sought to adopt the analysis and submissions of the amicus curiae dated 5th May 2023 where at paragraphs 13, 14 and 15 of the submissions the point was reiterated that service of the judgment is not among the steps necessary for conversion of the equitable mortgage. As a result, a failure to serve the judgment does not invalidate conversion.

[31]The Bank further sought to illustrate its point by emphasizing that there was a difference between execution or enforcement of a judgment and bringing an action related to or based on a judgment. Counsel cited Halsbury’s Laws of England which defined the word ‘execution’ as enforcement of a judgment. Counsel also cited the case of Morrison Knudsen International Inc v The Consultant Limited et al where Byron CJ relied on the decision in Re a Debtor where the court stated that bankruptcy proceedings based on a statutory demand founded on a judgment debt, constituted an action in accordance with the Limitation Act 1980 and not execution or enforcement proceedings for the purpose of the rules of court.

[32]Ms. Harris posited that CPR Part 45 clearly sets out the various methods for enforcing a judgment and the proceedings under Part V of the TRA were not referred to in the CPR as a method of enforcement. Counsel also highlighted that the enforcement of judgments as against properties brought under the TRA is specifically dealt with in Part VI of the Act which is titled ‘judgments’. Consequently, Ms. Harris asserted that CPR 2.2(3)(e) may be invoked since the TRA regulates mortgage proceedings for the sale of encumbered land and the CPR 2000 therefore would be inapplicable to the conversion of the equitable mortgage and the subsequent mortgage proceedings towards the sale of the property. Thus, service of a judgment or order would not be a necessary first step before a mortgagee engaged the provisions under the TRA.

[33]Finally, the Bank argued that even if this Court were to disagree and hold that the proceedings under the TRA were enforcement proceedings and that service of the default judgment was a necessary first step, in any event, the respondents were notified of the terms of the default judgment since 2004 and were therefore bound by it since that time. Though not served until 2015, the Bank asserted that the respondents were aware of the terms of the default judgment by means of the first notice to pay off which had been served on them since 2004.

[34]Although Ms. Harris admitted in oral submissions that the judgment itself was not exhibited to the notice to pay off, she asserted that the notice made specific reference to the terms of the judgment and by operation of CPR 42.2, the respondents were bound by it notwithstanding that it had not been served on them. Moreover, the respondents were participants in the proceedings before the court after default judgment had been entered including those concerning settling the articles of sale. Therefore, the master ought to have found that CPR 42.2 bound the respondents to the terms of the default judgment, and she ought not to have considered herself bound by Mitchell JA [Ag.]’s decision in Rabess. The amicus curiae’s submissions

[35]The amicus curiae largely agreed with the appellant’s submissions Counsel contended that the issues before Mitchell JA [Ag.] in Rabess were: (i) whether the calculation of the debt as disclosed in the default judgment was inaccurate and excessive; (ii) whether the default judgment was served; and (iii) if not served, what was the effect of the failure to serve the default judgment. In considering these issues, they argued that Mitchell JA [Ag.] proceeded on the premise that the proceedings under the TRA were of the nature of enforcement proceedings, which premise was accepted by the parties. The appellate judge was never called on to consider and did not consider whether the provisions for the conversion of an equitable mortgage to a legal mortgage and the sale of encumbered property under the TRA were enforcement proceedings. Consequently, the decision of Mitchell JA [Ag.] to characterise the proceedings under sections 66 and 74-97 of the TRA as enforcement proceedings, was made per incuriam and the master erred in considering herself bound by it.

[36]The amicus curiae posited that the words of CPR 2.2(3)(e) and section 66 of the TRA ought to be given their natural and ordinary meanings. Section 66 does not provide for the commencement or initiation of any proceedings under it. Rather, in order to benefit from the section, a mortgagee must first obtain a judgment which, they contend, can only be obtained from the institution of proceedings by ordinary suit. Such a suit, not being instituted under any enactment, is therefore governed in all respects by the CPR.

[37]Counsel accepted that CPR Part 42.6 provides that judgments and orders must be served and that in the instant case, an action for recovery of the debt was instituted by the Bank and the default judgment was obtained pursuant to the CPR. However, she submitted that the process of conversion of the equitable mortgage under section 66 of the TRA is an administrative function performed by the Registrar and is separate from the suit under the CPR. The conversion is part of a statutory regime governed exclusively by the TRA and is not subject to the CPR. Thus, applying the ordinary meaning of the words in section 66, service of the judgment is not among the steps prescribed for conversion of the mortgage. Consequently, the failure to prove service of the judgment does not invalidate the conversion.

[38]The amicus further posited that sections 74-97 of the Act set out a comprehensive regime for the mortgagee’s exercise of powers and privileges by way of sale of encumbered property and the reason for these sections is not the direct enforcement of a judgment. These sections are not dependent on the existence of a judgment, but rather the existence of a legal mortgage. Thus, these sections constitute foreclosure proceedings and are not enforcement proceedings. The respondents’ submissions

[40]The respondents’ also argued that the TRA may be construed as depriving the respondents of their interest in the land through the conversion of an equitable mortgage to a legal mortgage following the obtaining of the default judgment. Counsel submitted that if the TRA was used to deprive the respondents of their property, it must be construed together with section 6 of the Constitution of the Commonwealth of Dominica (the “Constitution”) which specifically prohibits the compulsory acquisition of property save for certain circumstances and the Land Acquisition Act. He further contended that where the default judgment was not personally served on the respondents and therefore was not lawfully enforced, such judgment could not be categorized under section 6(6) (a) (iv) of the Constitution as an exception to the contravention of section 6(1). Also, where the Bank sought to utilize the TRA to deprive the respondents of their property interest, such deprivation would be inconsistent with section 6 of the Constitution.

[39]Counsel for the respondents’ main contention was that the dicta of Justice Mitchell in Rabess has found support in subsequent decisions in this jurisdiction. Counsel cited the cases of Shefton Crosse v Victor Williams and Gotson Warrican v Ronnie Trotman et al to illustrate this point. Counsel argued that this Court ought to be guided by the statements pronounced in Rabess and find that the default judgment cannot be enforced until and unless it is served on the party against whom it is obtained.

[41]Counsel argued that before the respondents’ property could have been subject to the said provisions of the TRA, all necessary and formal requirements must be followed and adhered to pursuant to said act of seizure which is tantamount to enforcement of the judgment. Therefore, the fact that the Bank failed to serve the default judgment meant that it failed to ensure that all necessary formal lawful requirements were followed and adhered to. This requirement for personal service is underscored by Justice Mitchell in Rabess at paragraph 7. Counsel submitted that the necessity of personal service was highlighted further in the decisions of Shefton Crosse and Gotson Warrican which both cited Rabess. Moreover, the court in Gotson Warrican, at paragraph 30, found that a default judgment that had not been served is liable to be set aside and cannot be enforced. The Bank’s reply to the respondents’ submissions

[42]Counsel for the Bank countered that in so far as the respondents suggested that section 66 of the TRA was unconstitutional; (i) the conversion of an equitable and legal mortgage did not deprive the respondents of their interest in the property; (ii) any deprivation of an interest in property pursuant to a law that related to a mortgage is expressly stated by section 6(6)(iii) of the Constitution to not be in contravention of section 6(1); and (iii) the respondents’ reliance on Rabess without actually responding to the appellant’s argument that Mitchell JA [Ag.]’s decision was wrong.

[43]As to the respondents’ reliance on the decision in Gotson Warrican, the appellant asserted that in that case, an application was made to the master to set aside a default judgment and there was no application to prevent enforcement of a default judgment for lack of service. The statement at paragraph 30 of the judgment was not ratio decidendi and the master did not rely on the decision in Rabess to arrive at her decision as to whether or not the defendants had satisfied the criteria set out under CPR 13 for setting aside a default judgment. The statement therefore appeared to be obiter dicta.

[44]During oral submissions, Ms. Harris further articulated that the constitutional argument was never raised before the learned master for her consideration and consequently, she never made any ruling or finding on it. To therefore allow the respondents to raise wholly new issues on the appeal, which were never raised at first instance, would be wholly erroneous and this Court ought not to consider them at all. Analysis and Conclusion

[47]An equitable mortgage does not confer legal estate or title in the subject property to the mortgagee (the creditor), but demonstrates a binding intention to create a security in favour of the mortgagee. There is an intention for the property to be charged and disposed of to settle the debt in the event of default or non-payment. There is no protection afforded to an equitable mortgagee that is equivalent to a registered legal mortgagee. Having said that, the next best form of protection for an equitable mortgagee is to lodge a caveat on the property to which the mortgagee claims an interest. However, a caveat merely gives notice to the world of the existence of the equitable right claimed and will only entitle the equitable mortgagee to notification of any dealings with the title; it does not confer a right to possession of land or power of sale of land.

[45]It is apparent that on 31st August 2001, the respondents obtained a loan facility from the Bank and in accordance with section 62 of the TRA granted to the Bank an equitable mortgage over their interest in property registered in the Land Titles register Book T11 folio 47. In accordance with section 65 of the TRA and as would be the normal practice, a caveat was presented by the Bank to prevent any dealings with the mortgaged property. It appears to be common ground that the respondents defaulted on their repayments and so the Bank felt entitled to enforce their rights as mortgagee. Before attempting to unravel the issues which arise in this appeal, it is critical that there be a clear understanding of the legal process and procedure engaged by the Bank in the court below. What is an equitable mortgage and how is it enforced?

[49]Where (as is contended in this appeal) there is default on the agreement the remedies available to a creditor/mortgagee are prescribed under the TRA which ultimately allows the creditor to obtain a court declaration to sell the land where the mortgagor is in default of the terms of the equitable mortgage. Section 66 of the TRA sets out the steps to be taken by a mortgagee wishing to realise the mortgagor’s property in order to discharge the debt. It provides that: “66. an equitable mortgage may be converted into a mortgage, with all the powers and privileges of a mortgagee against the registered proprietor by way of sale of the land and otherwise, by the equitable mortgagee obtaining the judgment of the Court fixing the amount due to him by the registered proprietor, or obtaining from the debtor a writing accepting a specific sum therein stated as being due by him to the creditor under the equitable mortgage. Whereupon the equitable mortgagee may present the judgment or the writing to the Registrar of Titles, and request him to note upon the certificate of title a mortgage in his favour for the amount of the judgment or accepted balance due, the date to draw back to the date of the caveat, which shall be removed and the noting of the mortgage put on the certificate of title in place thereof. The judgment or writing shall be filed as the authority to the Registrar of Titles for so acting. Where no caveat has been entered, the date of the mortgage shall be the date of presenting the judgment or writing to the Registrar of Titles.” (Emphasis mine)

[46]An equitable mortgage arises out of a transaction that has the intent but not a form of a formal mortgage that the courts nevertheless will treat as a mortgage. An equitable mortgage is unregistered and does not form a secured interest against a property. It merely represents a promise by the borrower to reserve the relevant equity in the property for the lender when the property is sold. This arrangement should be evidenced via a written agreement between the borrower and the lender outlining certain contractual obligations binding both parties.

[48]However, at any time the equitable mortgagee may take steps to convert the equitable mortgage to a legal mortgage by following the procedure prescribed under section 66 of the TRA. It is important to note that it is open to an equitable mortgagee to take this step whether or not an event of default has occurred. However, it makes sense for an equitable mortgagee to take this step because in so doing the equitable mortgagee secures for himself all the powers and privileges of a mortgagee against the registered proprietor. This is important because the equitable mortgagee does not have a legal mortgage, he cannot just proceed to appraise and auction the property if there is a default on the agreement as a legal mortgagee with a power of sale would.

[50]It follows that the first step for the equitable mortgagee is to obtain a judgment from the high court which fixes the amount due to him by the registered proprietor. Alternatively, the equitable mortgagee could obtain from the debtor/mortgagor written confirmation of the specific sum which is said to be due by him to the creditor under the equitable mortgage. Where however the creditor mortgagee elects to approach the high court for a judgment, the Civil Procedure Rules (Revised Edition) 2023 (“CPR 2023”) now makes it clear that this constitutes a mortgage claim under part 66.1(1)(h) and that the appropriate originating procedure prescribed under Part 66.2 is by fixed date claim form.

[51]This procedure is not at all surprising because ultimately there should be very little room for any real factual disputes and these matters should be resolved in fairly short order on the basis of the parties’ sworn evidence.

[52]Unfortunately, the recent amendment to Part 66.1(1)(h) of the CPR 2023 only came into force in 2023. Bearing in mind the relevant chronology here, it is perhaps not surprising that the Bank in this appeal would have filed and served an ordinary claim and statement of claim in the amount of the outstanding sums due. The respondents have not filed an acknowledgement or defence to this claim, the Bank obtained a default judgment which adjudged that the respondents do pay the Bank the sum of $346,012.42 together with interests and costs. In my view, the wording of the default judgment is somewhat unfortunate. Rather than simply reflecting a fixing of the amount due by the respondents, the wording follows the format of a typical money judgment which generally mandates one person to pay a specific amount of money to another person.

[53]The section 66 judgment under the TRA is not and is not intended to operate as a money judgment. Unlike other judgments, a money judgment can be immediately enforced without any additional steps and CPR Part 45 makes clear the means by which a judgment or order for payment of a sum of money (other than an order for payment of money into court) may be enforced.

[54]The TRA however contemplates an entirely separate regime. Under that Act, the section 66 judgment on the other hand is a precursor, very necessary first step which must be taken by the mortgagee before it can attempt to enforce its rights. The purpose of this judgment is clear. It must be presented to the Registrar of Titles, along with a request to note upon the certificate of title a mortgage in favour of the equitable mortgagee for the amount of the judgment with the date to draw back to the date of the caveat, which shall be removed from the certificate of title and replaced with the now legal mortgage. That judgment serves as the authority to the Registrar of Titles to so act.

[55]As in the case of all registered mortgages, so soon as the Registrar of Titles has noted the mortgage upon the certificate of title, the land contained in the certificate shall be held by the mortgagee in pledge, from the date of the mortgage, for the repayment to him of the principal sum actually advanced and the interest set forth therein. In accordance with section 46 of the TRA, the money secured by the pledge of the land is payable at any time or times which may be fixed on the happening of any event or events which may be specified in the memorandum of mortgage, and, if not so paid, the mortgagee may, at any time thereafter, take steps for the sale of the land.

[56]The procedure for the sale of the mortgaged land is prescribed under the TRA at sections 74 – 97. There are several stages commencing with a demand for repayment of the sum lent on the mortgage, or the amount or provision secured by the encumbrance. It requires the mortgagee to serve or cause to be served upon the registered proprietor a formal notice to pay off in Form 14 requiring him to perform the acts therein within sixty days from the date of service. If the registered proprietor does not comply, with the notice to pay off, then the mortgagee may seize the land contained in the certificate of title on which the mortgage or encumbrance is noted. The mortgagee shall also forthwith present to the Registrar of Titles a caveat of seizure, in Form 16 which the Registrar of Titles shall note upon the certificate of title in the same manner as is provided for other caveats to prohibit all dealings with the land seized until the caveat be removed or withdrawn.

[57]If the debt is not paid off or discharged, or the acts required in the notice to pay are not performed, and no new arrangements are made within thirty days from the date of seizure, the mortgagee or seizure shall lodge in the registry of the High Court articles of sale in Form 17 of the said land, and the things accessory to the said land over which the mortgage or encumbrance extends, either in one lot or more lots, as may be thought most likely to bring the highest price, and shall by summons, call upon the registered proprietor, and all other mortgagees and encumbrances, to appear before the court on a day to be specified in the summons, to settle the said articles of sale, to estimate an upset price, to fix the day of sale and to adjust the announcements of sale and the mode of publication thereto. Thereafter, the TRA prescribes the procedure whereby the high court appoints and advertises the date and conditions of sale and provides for how such sale is to be conducted.

[58]In Rabess, Mitchell JA [Ag.] observed that “[i]t is a long established principle of civil procedure that a final judgment or order may not be enforced unless it is served personally on the party against whom it is sought to be enforced.” However, the learned judge did not identify any authority in support of this conclusion. Instead, he noted that this principle finds modern reflection in CPR 42.6 which provides that unless the court otherwise directs, the court office is to serve every judgment or order on the parties to the claim. In this context, “unless the court otherwise directs” only gives the court a discretion, which is frequently exercised, of ordering one of the legal practitioners instead of the court office to serve the judgment or order.

[59]CPR Part 42.6 clearly contemplates that every judgment or order of the court should be served on any person on whom the court orders it to be served; and every party to the claim in which the judgment or order is made. However, the purpose of such service is not to give validity to enforcement proceedings but rather to bring the fact of and terms of the judgment to the attention of the person served who may wish to appeal or file an application to set aside, vary, discharge or amend the ruling.

[60]The amicus curiae has posited that the procedures set out in sections 74-97 of the TRA set out a comprehensive regime for the mortgagee’s exercise of powers and privileges by way of sale of the encumbered property and affords to the registered proprietor whose property is liable to such sale and she submitted that the raison d’etre of these provisions is clearly not the direct enforcement of a judgment. The objective is not to compel the proprietor to observe the terms of the judgment but to empower the mortgagee to exercise the power of sale.

[61]I am in complete agreement. I also adopt the following reasoning of Farara JA [Ag.] in SAG Motors Ltd et al v National Bank of Dominica, in which he commented on the provision at sections 75-97 under the TRA as follows: “[43] Sections 75 to 97 of the Title by Registration Act outline the process by which a mortgagee can seize and sell incumbered property, where a mortgagor has failed to perform the conditions of the mortgage or incumbrance. Accordingly, a mortgagee’s power to sell a mortgagor’s property does not necessarily flow from a judgment but is derived from statute. This means that the mortgagee’s power to enforce its security is not contingent on the mortgagee obtaining a judgment against the mortgagor. In point of fact, in the instant matter, the respondent bank, having obtained the default judgment, proceeded to exercise its statutory power of sale by seizure and sale of the mortgaged property, rather than seeking to enforce the judgment by way of an order for sale.” (Emphasis mine)

[62]In my view, it is significant that relevant provisions (sections 74 – 97 of the TRA) apply generally in the case of all legal mortgages registered on a certificate of title. They are not dependent on a mortgagee having first obtained a judgment from the high court and therefore cannot be described as enforcement proceedings by any definition of the term.

[63]Having said this, it is clear that the section 66 judgment is a judgment of the court (obtained pursuant to CPR Part 12) which on a strict reading of CPR Part 42.6 ought to have been served on the respondents. However, in my judgment, it does not, follow that under the provisions of the CPR or indeed the TRA, that the respondents would be entitled to have the consequential proceedings set aside as of right, ex debito justitiae, or indeed that, if there is such a discretion it can be exercised in only one way. In my judgment, such an approach would be wholly inconsistent with the overriding objective which requires a court to deal with cases justly and economically. A court must look at the individual facts of each case.

[64]In this appeal, it is clear that the proceedings which would have led to the default judgment were properly served on the respondents. It appears to be undisputed that the default judgment is intended to serve as a judgment under section 66 of the TRA fixing the amount owed by the respondents. It is not a money judgment and the proceedings under the TRA are not enforcement proceedings. It simply serves as the authority to the Registrar of Titles to act to convert the bank’s equitable mortgage to a legal one. Once that legal mortgage was noted on the certificate of title, the procedures prescribed under the TRA to realise the Bank’s security are not dependent on any judgment.

[65]Moreover, it is clear that at the time of the master’s judgment, the Bank would have served the default judgment on the counsel for respondents on 15th December 2015. This was the subject of an application by the Bank to have such service deemed proper service on the respondents. That application was eventually granted, and that order has not been appealed.

[66]In my judgment, a court considering this factual scenario would also have to consider whether there was any point in setting aside the TRA proceedings and requiring the Bank to reissue and serve new proceedings. Clearly, no question of limitation arises and given the master’s other findings, there is no other benefit to the respondents in requiring the Bank to start fresh proceedings. In my view, it would clearly be contrary to the overriding objective that the Bank should be required to no useful end. In that regard, I am guided by the judgment of the English Court of Appeal in Nelson v Clearsprings (Management) Limited. In that case, the claimants filed a County Court possession claim against the defendant company. The claim form gave notice of the date of the hearing but misstated the defendant’s address. The claim form and particulars of claim were approved for postal service by the court and deemed served. The defendant failed to appear at the hearing and a possession order was granted in its absence. Relying on CPR Rule 39.3(5), the defendant applied to set aside the judgment on the ground that it was unaware of the proceedings. The judge rejected the contention that the defendant was entitled to have the judgment set aside as of right. When the case reached the Court of Appeal, it was common ground that the judgment in question was not a default judgment under CPR Part 12 but one obtained following a hearing under CPR Part 55, so that the set aside provisions of CPR Part 13 did not apply. Sir Anthony Clarke MR gave the judgment of the court and at paragraph 42 of the judgment, he said that having held that 39.3(5) did not apply the appeal must be dismissed. However, he went on: “ 43. It does not, however, follow that under the CPR the defendant is entitled to have the judgment set aside as a right, ex debito justitiae, or indeed that, if there is a discretion it can be exercised in only one way. It was pressed upon us that such an extreme approach is inconsistent with the overriding objective of dealing with cases justly and that, on an application to set aside a judgment (albeit irregularly obtained), a claimant might be able to demonstrate that there will be no point in setting aside the judgment and requiring the claimant to issue and serve new proceedings…

[67]The proceedings under the TRA are an entirely fresh set of proceedings under a completely disparate statutory regime which has been properly served on the respondents. The respondents would have the opportunity to respond make representations and challenge any stage of the proceedings including the issuance of the notice to pay, the settling of the articles of sale, the estimate of the upset price and the fixing of the date for the sale. Farara JA [Ag.] in SAG Motors Ltd et al v National Bank of Dominica has described that process as transparent and I fully endorse that description. Certainly, the proceedings have been conducted with the full knowledge and participation of the respondents who would have been fully aware of the default judgment for some time.

[68]I cannot ignore that the foregoing analysis presents a departure from the ratio of Mitchell JA [Ag.] sitting as a single judge of this Court in Rabess. I am therefore obliged to consider whether this Court, consistent with the well-established principle of horizontal stare decisis, is obliged to follow the judgment in Rabess. The rationale for this legal principle is well founded. The doctrine of stare decisis is said to promote certainty in the development and application of the law. In the Privy Council decision in Attorney General of Saint Christopher, Nevis and Anguilla v John Joseph Reynolds, Lord Salmon explained the position in the following terms: “So long as there is an appeal from a Court of Appeal to Their Lordships’ Board or to the House of Lords, the Court of Appeal should follow its own decisions on a point of law and leave it to the final appellate tribunal to correct any error in law which may have crept into any previous decision of the Court of Appeal. Neither Their Lordships’ Board nor the House of Lords is now bound by its own decisions, and it is for them, in the very exceptional cases in which this Board or the House of Lords has plainly erred in the past, to correct those errors just as it is for them alone to correct the errors of the Court of Appeal.”

[69]The rules of precedent for the Court of Appeal were laid down in the 1940s in Young v Bristol Aeroplane Co., which prescribed that the Court of Appeal is bound by its own past decision with three exceptions: (i) Where the decision of the Court of Appeal conflicts with a later decision of the House of Lords (or the relevant apex court: CCJ or Privy Council) the Court of Appeal must follow the apex court. (ii) Where there are two earlier conflicting decisions of the Court of Appeal then the later Court of Appeal in a third case must choose between them. (iii) Where an earlier decision of the Court of Appeal was made per incuriam i.e. the earlier Court of Appeal overlooked something that was binding on it such as a statute the later Court of Appeal are not bound to follow their earlier decision.

[70]In this appeal, counsel for the Bank has submitted that Mitchell JA [Ag.]’s holdings at paragraphs 7 and 12 in Rabess (as to the necessity of service prior to enforcement of a default judgment) were made based on an assumption of a proposition of law and thus were made per incuriam and that the master was therefore not bound by these statements. This submission, however, is not consistent with the established legal principle.

[71]In John Shrimpton and Another v Dominic Scriven et al this Court was confronted with a similar argument. At paragraph 6 of the judgment, Gonsalves JA [Ag.] writing for the Court summarily disposed of the argument in the following clear terms: “ …the insurmountable obstacle faced by the appellants here is that the per incuriam principle is relevant only to the right of an appellate court to decline to follow one of its own previous decisions, or a decision of a court of coordinate jurisdiction. It does not relate to its right to disregard a decision of a higher appellate court or (more relevant to this case) the right of a judge of the High Court to disregard a decision of the Court of Appeal. No such right exists.”

[72]I can only endorse and apply this reasoning in this appeal.

[73]The facts of Rabess are largely on par with the facts before the learned master and even involve the same respondents. Like the National Bank of Dominica, the Bank entered into a loan with the respondents and the respondents defaulted on the loan. The Bank also initiated a suit regarding the debt owed and, whereas in Rabess the respondents failed to file a defence, the respondents here failed to file an acknowledgement of service. Like the National Bank of Dominica, the Bank sought and obtained default judgment against the respondents. The Bank then sought to settle the articles of sale and during this process, the respondents asserted that they were never served with the default judgment. Whereas the Bank in this case sought to serve the default judgment and applied for the court to deem service as proper, it would appear that this route was not adopted by the National Bank of Dominica.

[74]Looking solely at the facts of the two cases, the master would have been correct to have resorted to the decision in Rabess as the factual circumstances are on par with each other. It is also true that in both matters the issue arose as to the effect of a failure to serve a default judgment on proceedings taken subsequent to the entry of the default judgment, the master failed to go on to consider the other issues which arose on the applications before her. The Rabess decision was binding on the High Court and the learned master was therefore correct in holding that she was so bound.

[75]However, the Bank’s position does not end there. Although agreeing that this Court is generally bound by its own decisions, Counsel for the Bank argued that under CPR Part 62.16A, the Full Court may vary, discharge or revoke the decision of a single judge and she urged this Court to decline to follow the decision in Rabess on the basis that it is per incuriam.

[76]As indicated, the authoritative law on this issue prescribes that this court is bound to follow its own decisions – save in closely defined circumstances. The term per incuriam generally speaks to a decision given in ignorance of the terms of a statute or a rule having the force of statute. In Morelle Ltd v. Wakeling the principle “per incuriam” was stated as applying to decisions given in ignorance of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong.

[77]The decision in Rakhit v Carty provides a useful example. In that case, a previous decision was found to be within the normal categories of per incuriam, because the earlier decision was made in ignorance of a relevant statutory provision, which showed it to be wrong. The earlier decision was therefore not followed.

[78]In Young v Bristol Aeroplane, Lord Greene M.R. confirmed the rarity of a finding of per incuriam. At page 729 of the judgment he observed, that such cases “would obviously be of the rarest occurrence and must be dealt with in accordance with their special facts. In Miliangos v. George Frank Textiles Ltd., after reviewing a number of cases Lord Denning at page 503 pointed out that; “So it has been held that a decision is not given per incuriam because the argument was not “fully or carefully formulated”; see Morelle Ltd. v Wakeling [1955] 2 Q.B. 379. 399, or was “only weakly or inexpertly put forward: Joscelyne v Nissen [1970] 2 Q.B.86, 99; nor that the reasoning was faulty: Barrington v Lee [1972] 1 Q.B. 326, 345 by Stephenson L.J. To these I would add that a case is not decided per incuriam because counsel have not cited all the relevant authorities or referred to this or that rule of court or statutory provision.”

[79]The court in Young v Bristol Aeroplane however did not close the door to the possibility that beyond the normal ambit of the per incuriam rule other examples of cases could exist where a court of co-ordinate jurisdiction could refuse to follow its earlier decision. As the court highlighted, such cases would turn on their own special facts : “It remains to consider the quite recent case of Lancaster Motor Co. (London) v. Bremith, Ld. (6), in which a court consisting of the present Master of the Rolls, Clauson L.J. and Goddard L.J., declined to follow an earlier decision of a court consisting of Slesser L.J. and Romer L.J. (1). This was clearly a case where the earlier decision was given per incuriam. It depended on the true meaning (which in the later decision was regarded as clear beyond argument) of a rule of the Supreme Court to which the court was apparently not referred and which it obviously had not in mind. The Rules of the Supreme Court have statutory force and the court is bound to give effect to them as to a statute. Where the court has construed a statute or a rule having the force of a statute its decision stands on the same footing as any other decision on a question of law, but where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the position is very different. It cannot, in our opinion, be right to say that in such a case the court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples of decisions given per incuriam. We do not think that it would be right to say that there may not be other cases of decisions given per incuriam in which this court might properly consider itself entitled not to follow an earlier decision of its own. Such cases would obviously be of the rarest occurrence and must be dealt with in accordance with their special facts.” (Emphasis added)

[80]In Desnousse v Newham London Borough Council and others, the English Court of Appeal described these as an “exceptional residual category of cases” and referenced examples of such decisions including Williams v Fawcett where the court refused to follow previous decisions which it held were subject to a manifest slip or error as to the procedure to be followed as regards committal, and Rickards v Rickards where the court followed Williams v Fawcett in relying on the exceptional residual category of cases not defined in Young v Bristol Aeroplane Co Ltd. In Rickards v Rickards, the court refused to follow a previous decision of the court because, although the relevant House of Lords decision had been cited, the later court held that the earlier court had misread or misunderstood the House of Lords case. It was a significant feature of the latter case that there was no possibility of an appeal to the House of Lords if the previous decision were to be followed.

[81]Assuming that the full court would be bound by the decision of a single judge, in order to fit this case into the established principles about per incuriam, the Bank would have to demonstrate that the earlier court (Mitchell JA [Ag.] sitting as a single judge) overlooked some binding authority or relevant statutory provisions, or rules of statutory force. This Court could also decline to follow the decision of Mitchell JA [Ag.] in Rabess if this Court considered that based on its own special facts, the case fell within the exceptional residual category of cases which are not strictly per incuriam as highlighted in Young v Bristol, but where the Court might consider itself not entitled to follow an earlier decision of its own.

[82]It is clear that the present case does not have the feature of a previous apex court decision with which the earlier Court of Appeal decision could be said to be inconsistent. The Bank’s case is that the decision in Rabess, (insofar as it held that the failure to serve the default judgment invalidated all subsequent proceedings under the TRA), does not correctly interpret and apply the statutory provisions of the TRA or the CPR.

[83]I am compelled to agree. For the reasons already set out, I am satisfied that this Court should depart from the decision in Rabess. There is nothing in Rabess to show that the learned judge gave any consideration to the totality of legislative provisions set out in the TRA or to their effect. This is borne out when he equated the procedures under the TRA with enforcement proceedings of a judgment. This is clearly not the case. As it pertains to sections 74-97 of the TRA, these provisions detail the legal rights of a mortgagee to sell the encumbered land. At play therefore is the exercise of the mortgagee’s statutory and legal rights to realise his security when there has been a default under the provisions of the mortgage. These rights are not contingent on the existence of any judgment or order of the court or the service on the mortgagor/defendant of the default judgment. Sections 74-97 therefore are not enforcement proceedings within the CPR and it is difficult to escape the conclusion that the decision was reached without the attention of the court having been drawn to the significance of this distinction.

[84]The judgment obtained pursuant to section 66 of the TRA only becomes relevant where an equitable mortgagee elects to take steps to convert the equitable mortgage to a legal mortgage, a necessary precursor to exercising the rights of a legal mortgagee under the TRA. Service of that judgment fixing the sum owed may well have been prescribed by CPR Part 42.6, but where service would not have been effected, invalidating the TRA procedures which followed on the basis relied upon by the judge in Rabess was fallacious. In reaching the conclusion, the learned Judge appears to have also overlooked the overriding objective and the judicial authorities such as Nelson v Clearsprings (Management) Limited which would have mandated him to consider whether there was any point in setting aside the TRA proceedings and requiring the Bank to reissue and serve new proceedings. In my judgment, therefore, the reasoning in Rabess cannot be sustained and this Court should depart from it.

[85]In arriving at this conclusion, I have taken some comfort in the fact that the substantive interlocutory appeal in Rabess was not heard by the Full Court but rather a single judge of the Court who would have determined the appeal on papers. The vires of the exercise of such jurisdiction was put beyond doubt in the decision in KMG International NV v DP Holding SA (a company incorporated under the laws of Switzerland) in which Pereira CJ, writing for the Court would have held that: “The power or jurisdiction given in relation to an appeal is that of the Court, and not that of a single judge, and which power may, in certain circumstances, in essence be delegated to a single judge of the Court, with the Court retaining the overarching power of reviewability in the circumstances. It is now well settled that a single judge of the Court has no power to hear and determine an appeal. A single judge’s jurisdiction can only arise in the context of a pending appeal, whether through the avenue of rule 27 of the Court of Appeal Rules, or through CPR 62.16. Although the Court may permit certain of its powers to be exercised by a single judge, that permission does not thereby operate to deprive the Full Court of the power vested in it by statute or its inherent jurisdiction to review the single judge’s exercise of that power.” Emphasis added

[86]This dictum reinforces my view that it is open to this Court to decline to follow Rabess. I regard this as one of those rare cases which falls within that “exceptional residuary category” described in Desnousse v Newham London Borough Council.

[87]Finally, and without making any definitive findings on the point, I am also inclined to the view that the Full Court would in any event be at liberty to depart from a previous decision of a single judge where it considers that that decision (although not strictly classified as per incuriam) was plainly wrong. In that regard, I have considered the English decision in Ronex Properties Ltd. v John Laing Construction Ltd. and others in which Donaldson LJ suggested that the Court of Appeal, sitting as a panel of three, is not ‘strictly bound’ by decisions of a panel of two. Also, in Welsh Development Agency v Redpath Dorman Long Ltd., Glidewell LJ, also sitting as part of a panel of three, considered it permissible to relax the ordinarily strict rules of stare decisis in the Court of Appeal to depart from an earlier decision of a two-judge court. At pages 1422 – 1423 of the judgment, the Court observed: “In Howe v. David Brown Tractors (Retail) Ltd. [1991] 4 All E.R. 30 Nicholls and Stuart-Smith L.JJ. felt able to distinguish and thus not be bound by the decision in Kennett v. Brown [1988] 1 W.L.R. 582. In our view we cannot take that course. We believe that if we are not to follow that decision we are obliged to say boldly that the reasoning in Kennett v. Brown was wrong. We are able to do so because that was a decision of a court consisting of two Lords Justices in an interlocutory matter, in extempore judgments. We, though also sitting on an interlocutory appeal, are a court of three Lords Justices. That we have the power to disagree with, and overrule, a previous decision of a court of two Lords Justices in an interlocutory appeal is clear from the decision of this court in Boys v. Chaplin [1968] 2 Q.B. 1: see the judgments of Lord Denning M.R., at p. 23C–G, of Lord Upjohn, at p. 30B, and of Diplock L.J., at p. 36B–C.”

[88]While I fully appreciate that in England and Wales, more recent authorities have seemingly considered that the ordinary rules of stare decisis apply to the Court of Appeal, regardless of whether two or three judges happen to be sitting, this appears to be premised on legislative reforms which have specifically removed the distinction between the kind of cases determined by panels of two compared to panels of three (modern conditions) which have not been replicated here within the Eastern Caribbean.

[89]The provisions of the ECSC CPR 2000 and CPR 2023, have not removed the distinction between substantive and interlocutory appeals and in fact, maintain that any order, direction or decision made or given by a single judge may be varied, discharged or revoked by two judges where the order, direction or decision relates to an appeal of a class which may be heard and determined by two judges and by the Full Court in any case. At paragraph 8 of KMG International NV v DP Holding SA (a company incorporated under the laws of Switzerland) the learned Chief Justice would have highlighted this distinction when she observed: “….As discussed above, a single judge of the Court may not by rules of court exercise any powers of the Court involving the determination of an appeal. This is a limitation placed by statute. Accordingly, a single judge may only exercise the power of the Court in relation to an application made in a cause or matter pending before the Court and which is not determinative of that cause or matter. In short, although the Court may permit certain of its powers to be exercised by a single judge, that permission does not thereby operate to deprive the Full Court of the power vested in it by statute or its inherent jurisdiction to review the single judge’s exercise of that power. On the basis that the single judge could exercise the Court’s power to strike out the counter notice, it was clearly within the power of the Full Court to review the single judge’s decision thereon.” Emphasis added

[90]For the reasons set out herein, I am satisfied that the learned master would have been led into error by Rabess. The conclusions reached herein are sufficient to dispose of the appeal in its entirety and it is therefore not necessary for me to go on to consider in detail the third issue raised on the appeal. It follows that the appeal must be allowed, and the orders made by the learned master set aside. Disposal and Order

[91]Based on the foregoing, I hereby make the following orders: (i) The appeal is allowed. (ii) The master’s decision made on 29th June 2016 which rendered all proceedings taken by the Bank consequent to the entering of the judgment on 24th September 2003 null and void and of no effect, is hereby set aside. (iii) The respondents shall pay the appellant’s costs on the appeal to be assessed by a judge of the high court, if not agreed, within 21 days of the date of this judgment.

[92]I wish to thank all parties for their very helpful submissions. I concur. Eddy Ventose Justice of Appeal I concur. Gerard St. C. Farara Justice of Appeal [Ag.] By the Court Chief Registrar

1.A judgment under section 66 of the TRA is a judgment (obtained pursuant to CPR Part 12) which on a strict reading of CPR Part 42.6 ought to have been served on the respondents. However, it does not follow that under the provisions of the CPR or indeed the TRA, that the respondents would be entitled to have the consequential proceedings set aside as of right, ex debito justitiae, or indeed that, if there is such a discretion it can be exercised in only one way. The court must look at the individual facts of each case. In this appeal, the proceedings which would have led to the default judgment were properly served on the respondents. The default judgment serves as a judgment under section 66 of the TRA fixing the amount owed by the respondents. It is not a money judgment and the proceedings under the TRA are not enforcement proceedings. It simply serves as the authority to the Registrar of Titles to act to convert the bank’s equitable mortgage to a legal one. Once that legal mortgage was noted on the certificate of title, the procedures prescribed under the TRA to realise the Bank’s security are not dependent on any judgment. The proceedings under the TRA are an entirely fresh set of proceedings under a completely disparate statutory regime which had been properly served on the respondents. Section 66 of the Title by Registration Act Chap 56.50 of the Laws of Dominica applied; Part 42.6 of the Civil Procedure Rules 2000 applied; SAG Motors Ltd et al v National Bank of Dominica DOMHCVAP2022/0001 (delivered 28th July 2023, unreported) followed.

2.As it pertains to sections 74-97 of the TRA, these provisions detail the legal rights of a mortgagee to sell the encumbered land. The exercise of the mortgagee’s statutory and legal rights to realise his security when there has been a default under the provisions of the mortgage are not contingent on the existence of any money judgment or order of the court or the service on the mortgagor/defendant of the default judgment. Sections 74-97 therefore are not enforcement proceedings within the CPR and therefore the decision in Rabess was reached without the attention of the court having been drawn to the significance of this distinction. Sections 74-79 of the Title by Registration Act Chap 56.50 of the Laws of Dominica applied; SAG Motors Ltd et al v National Bank of Dominica DOMHCVAP2022/0001 (delivered 28th July 2023, unreported) followed.

3.The Court of Appeal is generally bound by its own decisions save in closely defined circumstances. This Court can decline to follow an earlier Court of Appeal decision if some binding authority or relevant statutory provisions, or rules of statutory force are overlooked. This Court can also decline to follow an earlier decision if based on its own special facts, the case fell within the exceptional residual category of cases which are not strictly per incuriam as highlighted in Young v Bristol Aeroplane Co. Ltd, but where the Court might consider itself not entitled to follow an earlier decision of its own. There is nothing in Mitchell JA’s [Ag.] decision in Rabess to show that the learned judge gave any consideration to the totality of the legislative provisions set out in the TRA or to their effect. This is borne out when he equated the procedures under the TRA with enforcement proceedings of a judgment. This is clearly not the case. The decision in Rabess, (insofar as it held that the failure to serve the default judgment invalidated all subsequent proceedings under the TRA), does not correctly interpret and apply the statutory provisions of the TRA or the CPR. Consequently, the reasoning in Rabess cannot be sustained and this Court is not obliged to follow the judgment. The instant case is one of those rare cases which falls within that “exceptional residuary category” and consequently this Court declines to follow Rabess. Nelson v Clearsprings (Management) Limited [2007] 1 WLR 962 considered; Desnousse v Newham London Borough Council [2006] 3 WLR 349 applied; Young v Bristol Aeroplane Co Ltd [1944] 2 All ER 293 applied. JUDGMENT

[1]ELLIS JA: This an appeal against the learned master’s decision to render null and void and of no effect, all proceedings taken by the appellant bank consequent to the entering of a default judgment in the bank’s favour on 24th September 2003, owing to the bank’s failure to serve the said default judgment on the respondents before 15th October 2015. Background

[2]On 31st August 2001, the respondents obtained a loan facility from the Bank of Nova Scotia (“the Bank” or “the appellant”) and in accordance with section 62 of the Title by Registration Act (the “TRA”), an equitable mortgage was granted to the Bank over the respondents’ interest in property registered in the Land Titles Register Book T11 folio 47. As per section 65 of the TRA, a caveat was presented by the Bank to prevent any dealing with the mortgaged property and this caveat was noted on the certificate of title for the property.

44.The question is whether the CPR permits such an approach. In our judgment, there are procedural ways in which to achieve that result. It was suggested in argument that there are a number of provisions of the CPR which, in combination, could be deployed to achieve it. They are CPR rr 6.9, 3.1(2)(m), 3.1(7) and 3.10.”