THE BANK OF NOVA SCOTIA v D. J. EMMANUEL & ASSOCIATES LTD et al

SAINT LUCIA IN THE HIGH COURT OF (CIVIL) Suit No. 865 of 1997 Between: THE Bl~K OF NOVA SCOTIA alr1t <t-=+ vs JOSEPH EMMANUEL (1) (2) D. J. DAVID EMMANUEL & ASSOCIATES LTD. ;Jeferldarlcs Mrs. K. Roheman for the Plairltiff Mr. R. :rlnocerlC for Defendancs ::-< 1999: April 30th May 7th JUDGMENT ':'he to this case :.s -hat -~e :~::·st: :::amed "-'efer..dar:t execuced cwo hypothecary obligac::"orls ::"rl :avoc;r f c!":e ?la::"rlc::..f_ and they are scered as InstrumerlC ~o. :7211 arld ~nscrument 3629/96. The second named Defendant, on che ocher !":and, execuced a guarancee :.n :a'v·oL:r ::::'e Plaint:"ff guarantee:.~g pa~,fITter..:::: +- ''"'' .. e ?2.a:.:-::::" .;:: .;: all debts r the firsc named ;Jeferldanc. The hVDothpcs were rlO~ servlcpd and chere ore the ?la::..nc::..:: an accion aga::..nsc che Defendants cla::..m::..ng ::..ncly and severally che tol The 1 sum of $:3 ,433. 0 Interest in che sum of $14, 60.27 arlO :ncerest on the Pr::"rlc::..pal c the te ~~ per annum (The Interest and were calculated up co che th day of August, 997) and the costs of the action. An appearance was entered on behalf of the Defendants and :our monehs later the Plainti f en~ered Judgment in default 0: de:ence nst -hem. The said reads as follows: It s this day adjudged that the Defe~dan~s ointl and severally pay to the Plaintiff: (1) The Principal sum of $13 ,433.30 as at 6th August, (2) Interest in the sum of $14! 0.27 as at th .z,ugust! (3 ) Interest on $137,433.3 at the rate of per annum from th August! 1997 to date of payment. (4) The costs thereof. Subsequently, a Writ of Execution was filed one of the propertle of the second named Defendant. Th~s property is situated at Rodney Bay, Gras Islet, measures 15,110. 0 square feet and is stered as Block No. 1255B Parcel 61. On the 3rd of June 1998 an Upset Price was set at $300,000. A perusal f the court file will indicate that there 's a Summons to extend the period for the exeCutlon of the Wrle of Execut_on filed on he 24th day of March, 1998 but that no Order has yee been ~.!'~ it t h.f'~ On the rd day of March, 1999 a v Su~mons supported ov an ~ . ,--oae, Affidavit was filed under Section 2135 of the CiVi~ an examination of the second named Defendant as to hiS means in order to satisfy the above noted debt to the Plaine'::. On the Oth day of March, 1999 the second named Defendant : led an Affidavit in reply which I have reproduced. 4, I, David Errunanuel of Gras Islet '::'n the Stat:e of Saint '::'ucia make th and say as follows:

1.I have seen and read the Affidavi t of Brian Willet in this tter.

2.That I am indebted to the Plaintiff as all in the said .4ffidavi t:.

3.Tha t the Plain tiff on 24 th March '::'led a ;v'ri t: of Execution against my irrunovable property, S,2 . 55S Parcel 61 situate at Say, Gras Islet.

4.Tha on April 14, 1998 the Plaintiff s3ued a Summons to ?ix upset Price w,;, th Affidavi t and an exhibi t:ed uation of the said property.

5.That by a Court Order dated May 15t:h, and filed June 3, an Upset Price of $300,000 was set for the said property.

6.That notwithstanding t:he Default Judgment: the Wri t of Execution and the Court Order for Upset Price of $3 ,000 the Pl intiff has failed without reason exercise its power of seizure and sale of the property and sa t eJ:e said debt! to the prejudioe of t:he Defendant:.

7.That I have done nothing to impede che Defendanc' s exercise of ts power of se_zure and sale of _he said propercy. I have since the date of the said make a oontribution to the PlainClff towards che debt, but my offer was not aocepted .

9.Tha the said Mr. Willet has di me from accep an offer to the said property at a ce below t:1e Uoset Pri but more than sufficient to di the said debt.

10.In the ses J. humbly pray thi s Honourabl e Court to dism~ss, ;vi th co,~t to the Defendant, r::he Plaintiff' s ication in r::hjs mitter. ARGUMENTS: Learned Counsel for the Plaintiff stated that the second named Defendant effecced the sale of a of land stered as Block 1256D Parcel 118 and despite a Caution by the Plaintlff disbursed the balance of the proceeds of sale (thought to be over $170,0 wi thout satis r:.g c[',e said debt and submi t ted chat the saId Defendant should be crdered to pay the of sale to he Plaintiff Learned Counsel ::or the Defendants commenced his argument likening he PlaIntiff to Sherlock, the merchant in "Merchant cf Venice, pound ~ flesh with blood. He lferous chat the Plainc:ff had standing In Its favour a Default a :t of Execut:on and a Court Order for the Upset PrIce of 53 0,00 on the property Block '255B No. 61 and was an Order for che balance of the of sale from another piece of land v:z 1256D 118 Learned Oounsel repeaced paragraph nine (9) of second named Defendant's Affidavit ~here he scates that he permiSSIon from the of ;::::-:e Affidavit supporting the review) rian Willec the Account f che Plalnt:ff ~or perm:sslon to sell the property (noted earlier) at a price below the ~pset Price bue suffic:ene co d: the saId debt but the offer was refused. " Learned Counsel for ~he Defendants beseeched the Cour~ ~o no~e that • a Caution was aced on the property stered as land 12560 11 after t was sold aDd the Summons under review was filed. Learned Counse] for Plaintiff ied the Court that "those who came to 2quity must come wl~h clea.1 hands" and that Judicial Hypothec attached to all lands f the w debtor. She quoted a Salnt Lucian case SUlt 727/94 wh ch Just"ce Ian Donald Mitchel affirmed that a bank has a to pursue whatever means necessary to satisfy a debt. CONCLUSION: Under examination the second named Defendant informed the Court that the property Registered as 12560 118 was sold for $35 ,000.00, that he paid off Burclays Bank in the sum of $170, 00.00 and all his other debts; that he offered the Account Manager of the Plaintiff $50,000.00 on the amount owed and that the loan be rescheduled; that he also informed the said Manager that he was offered the sum of $250.00 for the land held as security V1Z Block 1255B Parcel 61 but the said Manager refused the of_er. Article 1908 of the Civil Code thee is a real right and is a charge upon in-movables ally pledged by it for the fulfillment of an obligation, in virtue of whieh the creditor may cause the i.~ovables to be sold in the hands of whomsoever they may be, and has a uoon the as fixed by this code." Arti 1909: IIHypothec is i:1divisible and binds '"1 enurety all the immovables ect to it and ecl~.iJ and every portien of them. II Artle e 1912: thec may be either ~udicial or ~onventional. Article 1913: Hypothec is that which results from the law alone. Judicial Hypotr.ec is tr.ac whieh results frem Judicial acts and Conventional Hypothec results from agreements. In my Judgment the ease under reVlew concerns a ~udlclal Article 1923 of the Civil Code "Judicial Hypothec affects general the immovables owned the debtor at the time of stration ef such thec and those subsequently ewned him unless the same are exempt frem seizure or are e of al enation otherwise. While agree that Judicial affects the immovables owned by the debtor 'r 's tr'te law that every case must be declded on lts merits. un the th of March, 1998 the Creditor that 's the obtained ',., default ~~ defer:.ce agal:1s: ::-:.e second :-lameci Defendant: and on t:he 24th of :.1arch, 1998 :lled a Execution against his property seered as 12558 Parcel 61 which means that a spec::'::.c lmmovable was chosen a:-:d - here fore e:1at '4 Judicial Hypothec attaches to it and no other, to allow otherwise would be oppressive. The Summons is dismissed. There 11 be no Order as to Costs. ~~~~~ SUZIE d'AUVERGNE HIGH COURT JUDGE

Suit No. 865 of 1997 D’Auvergne, J. Delivered: 07/05/99