SPIRICOR OF ST. LUCIA LTD v THE ATTORNEY GENERAL OF ST. LUCIA et al

\~. r,i , SAINT LUCIA l_ • IN THE HIGH COURT OF JUSTICE (CIVIL) A. D. 1996 Suit No. 481 of 1991 Between: SPIRICOR OF ST. LUCIA LTD , \ - Plaintiff '3.nd " 1. THE ATTORNEY GENERAL OF ST. LUCIA Sued as representing the Crown under Section 13(2) of the Crown Proceedings Ordinance Chapter 13 2. Hess Oil St. Lucia Ltd Defendants Mr . D. Theodore f or Plaintiff Mr . P . Husbands Q. C. f or Def endant No . Mr . M. Go~don fo r Def endant No . 1993: 1995: December 6 March December 18, 19, & 20 April 1996: (j) JUDGMENT - { , r s::: r d ' Auvergne J H :15 On November 29th, 19 91 the Pl aintiff fil e d a writ of Summons indorsed with Statement o f Clai m asking for damages in excess o f eighty six million do ~ l a r s a qainst t he Defendants. " The Statement of Claim is quite lengthy and t he Plaintiff asks for \ s everal declarations and claims f or breach of warranty against both de fendants, general a nd exemp lary damages a nd cost s . The Sui t arises because the Plaint i ff al l e ges that the f irst f c Defendant sold and conveyed to the aintiff a at de Sac on the 20th JulYI 1987 for the OR of 1,13, 00. United States Currency the a iff d t sum of 250,000.00 Unit States on t execution of he balance being secured by a Vendor's pr lege to pa five years. The P~aintiff leged that it entered lnto possess of the land and continued in Dcssession until it was ct second Defendant on or about th, 199 DV an agreement executed on February 1st, 1990 tween t first second Defendants by which t first Defendant to sell for $3,375, 0 . same portion of land to t second Defendant Eastern Caribbean ct it is enti ed Plaintiff alleged by reason ce to t first to delay the payment of ance Defendant. The Plaintiff seeks a declaration among othe== th~~ it is the owner the land in question and s entitled to session. first Defendant entered appearance on December 2nd, 1991 and second defendant entered appearance on Dec 6, 1991. first Defendant filed its defence on 3rd, 1992. In ts defence the Defendant denied the Sale to the a iff, admitted to the particulars of CuI Sac stillery) on tone but states later in the defence all the terms of a leged sale were not contained in one document s by ies but there was a memorandum of underst ed ember 1 , 1986 whereby the Plaintiff to refurbish the de Sac stillery, manufacture and market alcohol and beverage alcohol products. I pause here to note t that memorandum of understanding was never put in evidence. The first Defendant admitted that on July 20th, 1987 it executed the Deed of Sale of t distillery for t project but it was an implied condition of the said Deed of Sale and conveyance t Plaintiff had an Alien's Landholding Licence to e d the distillery. first Defendant states that on 1st, 1987 it aintiff an Alien's Landholding cence and i~ WrlJ a t of the licence thac the PIa iff pays the st asses thereon. The first Defendant stated that on the above premises PI iff d not at any time have an AI's Landhol cence 0 and hold the land for purposes the ject on t d not sell t premises the first Defendant land to the Plaintiff. In the alternative the first Defendant alleges that t rebC the agreement for sale and of t Distill the project. Further that Defendant a iff ached the conditions contained of understanding by fai to perform its therein as it relates to the project. rest of the defence contains certain non admiss and s o the Plaintiff's statement of cIa a Counter Claim the first Def claims damages recis of the agreement by the aintiff and of a sum of $ 12,015.43 for money it paid to secure the stillery as t Plaintiff failed to supervise, maintain or utilize t d stillery. second Defendant filed its defence on January 14th, 1992. In defence it alleged that it had no knowledge of t first 10) ten paragraphs of the Plaintiff's Statement of Claim save paragraph (3) which it admitt Paragraph three s y stat hat the Cul de Sac Distillery was shown on Land ster map s parcel numbers 0645B 3, 645B 7, 645B 8 and 0645B second Defendant agreed that t st, 1990 it agreed to purchase the land from the first Def and jt d=Lied that t sale was wrongful that it any interest in t and the P iff or that Pl iff had any erest in the said lands. t denied that it wrongful evicted the Plaintiff t tt it was possession of land. I alleged t it d re on Section of stration Act 1984 at t tri In its reply to the defence of the f t Def filed on 2 rd, the P12i~~~:: ~ll that the memorandum of understa~ding does not constitute a between the ies as it was subject to the execut of a f Incent and a final sale between the ies. Plaintiff admitted that no f had executed by the parties but Deed of e is t f e agreement. The Plaintiff alleged t it paid the stamp on the Alien's Landholding Licence on t 26th July, 1987 tted a bank ft to the Accountant General's account for that purpose. The reply is also an extremely long document whi does not add anything further to the eadings. On March 24th, 1992 the pla iff joined issue with t second Defendant on its defence save in so far as the same consisted of ssions. the t 1 the Plaintiff called Lisle Chase, Secretary of t aintiff Company, and Norman Francis, Co- te Secret and Officer of National Commerci Bank as its tnesses. first Defendant called Richard Gomez, Secletary of Barclays Bank oni ana Act Assistant Accountant General Innocent as its witness=s. The second Defendant co. 1 Barbara Pierre, a solicitor to e registers. this case it seems as t t documents tendered ay an even more important role than t Viva Voce nature the evidence of Lisle se was to seve s rt Innocent, a j or Crown Counsel, was c~::_j to documents. I shall ew the oral dence and refer to t documentary evidence as find it necessary to dO so. Besides tendering documents sle Chase stated that he as Secretary the a iff Company sits tion of 1987. He sought to produce the Deed of ect was taken by Learned Counsel the Def s. s ensued and the Court ordered the Pl iff to pay stamp on the document not later t r 31st, 193 and t matter was ourned for that purpose. When the case resumed Chase continued ana puc 0 s exhibits. When he was Cross Examined by Mr. Husbands, Chase admitt that had recently filed a Suit against the Plaintiff Company services he rendered to them and that he obtained judgment in the sum of $5,000.00. He said that he honest did not know if had pay him since he had never seen t statements of t said that he had made requests for s 1987. He said that after some delay he id t"le wat the prope who came to s office or t was he g;)t the money from Mr. La Traverse I Chairman Managing r~ctor of the aintiff Company. He s t was aware that the Government made s he was now seeing documents to effect. en a He said that he was not aware that t by Spi cor (the Plaintiff Company) to Government. He erred to a letter by Mr. Vernon Q. C. to Mr. La Traverse, he subject matter of ch was that Mr. La Traverse t ~y ~i~honoured s St. Lucia the of Barcl=}c had come to him on that matter. was then Cross Examined by Mr. Gordon. He said that he not why stamp duty on t of Sale was not for seven years. He said that would fair to say wat came his office on more one occas was e to because he was not funds by the aintiff He agreed that the aintiff entered possession of stillery, but he had no idea whether PIa iff was still in possession as of February 1990. He said that s fees had not been paid by a iff Company. The National Commercial Bank was subpoenaed to attend Court to produce two Barclays Bank ts which were deposited at the National Commercial Bank. Norman Francis Cooperate Secretary and Officer, attended court on f of t bank. He stated that on June 29th, 1987 a cheque amount of 228,825.00 was deposited account the name Accountant General. He said that d not say whet that cheque was dishonoured or not. He further stated that a cheque for t States $250,00.00 was converted into Eastern Caribbean to an amount of $672,050.00. He sajd that s cate on lOth, 1987 that amount was deposited Account 10981121 t name of the Accountant and t was chard Gomez stated that on 21st, 1988 as Assistant of Barclays Bank he signed a letter re to an amount f $228,825.00. saic. when the -1 u ..... CA. ..... l.- ciS presented it was shono~red. Under Cross ion he sa that a for t amount to be refunded and it was so refunded. ana Henry identified a document ch called an account ch showed an amount outstand to the Government the aintiff the amount of $212,015.43. last witness for the irst defendant was Robert nnocent produced (19) nineteen documents and as stat earlier erre tendered the sters rtaining to the various parcels of on behalf of the second defendant. ARGUMENTS Mr. Gordon, Learned Counsel for the second Defendant, argued the Plaintiff's Claim against the second Defendant Is under heads, namely: declaration that the Agreement dated 1st February 1990 between first Defendant Defendant hereinafter referred to as The Agreement is null pursuant to Paragraphs 11(2) 12 2 of Statement of a (2) A declaration that the Plaintiff is owner de Sac stillery as stat entitled to 'T'he CuI paragraph eight (8) of its Statemen~ Clalm or alternatively restoration of the de Sac Disti lery and damages. (3) Damages conspiracy between the first and defendants to ure the aintiff by the first de committing a breach of contract which contract as I is contained in t Deed of e ed 20th (hereinafter referred to as the "Deed of Sale" as stated in paragraph 14(2 of the PIa iff's Statement Claim) . (4) Damages from the second Defendant for evict the Plaintiff from the CuI de Sac stillery (as st paragraph 12 (1) of the Plaintiff's Statement of CIa Learned Counsel argued Nos. 1, 2 and 4 of above mentioned together. He said that in essence the PIa iff's aim is by rtue of the Deed of Sale the Plaintiff became the owner of CuI de Sac Distillery. He contended that if as is alleged by the aintiff, t PIa iff and the first Defendant executed the Deed of s~ and that at the time of the execution of the Deed of Sale the aintiff paid the first Defendant the sum of US$250,OOO and took possession of t de Sac Distillery then it was clear that the PIa iff is relying on Article 1388 of the Civil Code which reads: "A promise of sale with delivery and possess is equivalent to Sale." Learned Counsel however po ed out that Article 1390 f t Code provides that: "The articles of this book, so far as fect the rights of third persons are subject to the spe 0 i ificat restrictioils contained the Book re t Registration of Real Rights and that t phrase "this Book" refers to Fifth which conta._ns Articles 1382 to 1503 of the Civil Code. It is to be noted that Article 1388 ls wit " s II He contended that if indeed there was a vali execut Deed Sale between the Plaintiff and the first fendant it is uncontroverted that the Plaintiff failed to register Deed of Sale at any time prior to 1st February, 1990 or even t February, 1990 the dates t execution The Agreement and the aci~; of a caution on the Cul de Sac stilJery respect ly. said caution is referred to by paragraph 17 ~f the a iff's Defence to Counterclaim. He quoted Book Eighteenth of the Civil Code which is entitl Registration of Real Rights which commences at Article 1967 reads as follows: "Registration gives effect to real rights and est ishes ir order of priority according to the provis conta s Book." Article 1970 states: "The notice received or knowledge acquired an unregistered right belonging to a third party and subj ect to registration, cannot prejudice the rights of a subsequent purchaser for valuable consideration whose title is duly registered, except, when such title is derived from bankrupt or person notoriously insolvent." Learned Counsel said that on Article 1967 it is Registration which gives effect to real rights as well as dictates their order of priority; that in 1984 the Land Registrat Act was passed in Saint Lucia the result of which is t e parcel f land has its own register. He quotE..d of the Land stration Act as Section 37 (1) follows: "No land, lease or hypothec stered under t s Act s capable of being disposed of except accordance th this Act, and every attempt to dispose of such land, lease or hypothec otherwise than in accordance with t s Act shall be ineffectual to create, extinguish, transfer, vary or af any right or interest the land, lease or If

2.Section 56 (1) ~~~ I~) of the Land Registration Act reads as follow r'1 : (1) A proprietor, by an instrument in notari form, may transfer his land lease or hypothec to any person th or without consideration. (2) The transfer shall be completed by registration of the transferee as proprietor of the land, lease or hypothec and by filing the instrument." He further quoted from Section 38 of the Land Registration Act which states in part: "No person dealing or proposing to deal for consideration with a proprietor shall be required or in any way concerned - to inquire or ascertain the circumstances or the consideration for which such proprietor or any previous proprietor was registered, " and he said that "Proprietor" is defined the Act at Section 2 as lows: "Proprietor" means the person stered under t s Act as the owner of land or a lease or a " He submitted that on the 1st day of February! 1990 t first Defendant was the \prop~iet~r' of the Cul de Sac still the meaning of the Land Registration Act Section 2 and on the 12th February, 1990 when the caution of tr.e second Defendant was lodged. He said that this submission was fortified by Coutume de Paris by w. Cenac Q.C., Pages 92 to 93 "Register as to Title." A caution was placed against the property question at the Registry on the 12th of February, 1990. Learned Counsel continued tis submission L t f Section 86 of the Land Registration Act which reads as lows: "Any person who (a) claims any unregistrable interest soever land or lease or a hypothec may lodge a caut wi t Registrar forbidding the registration of dispositions the land, lease or hypothec concerned and the making of entries affecting the same." Section 87 provides as lows: "(1) "The Registrar shall give notice writing of a caution to the proprietor whose land, lease or hypothec is affected by it. (2) So long as a caution remains registered, no disposition which is inconsistent with it shall be registered except with the consent of the cautioner or by order of the Court." He said that the Land stration Act 1925 of and is jurisprudentially comparable to the Land Registration Act No. 12 of 984 of saint Lucia and therefore it is help to consi earning expressed the various texts and judgments from and quoted Megarry and Wade 5th Edition Page 213 paragraph (2). He argued that if the Plaintiff did, as he a .le0~d two 2) of his St&tement of aim, execute Deed e oat 2 th 1937, this is before February 1990, t one must cons r what effec: it would have as against the second He referred to his earlier argument, which is noted, t it was registration which gives effect to real rights as well as ir priority. He then referred to Section 23 of the Land stration Act which states that "the registration of any person as etor th absolute title of a parcel of land shall vest in t person ~.'_:te ownership" in t land subject to c~rta ri s ch we are not concerned in smatter. He then quoted Section 38 of the said Act whi states: II (1) No person dealing or proposing to deal consi ion with a proprietor shall be red or any way concerned (a) to inquire or ascertain the circumstance in, or the consideration for ch such etor or any previous proprietor was stered; or (b) to see to the application of any cons ion or any part thereof; or (C) to search any register kept under the provisions of Book Eighteenth of the Civil Code. Where the proprietor of land, a lease or a hypot is a trustee he shall in dealing therewith be emed to be the proprietor thereof, and no disposition by such trustee to a faith and cons di it defeasible by reason of the fact that amounted to a breach of trust. (3 ) Nothing contained s Sect relieve a purchaser in good faith and for cons of his obligation to s the Registry." He quoted the House of Lords (lecision of Midland Bank Trust Co. Ltd vs Green and another 1981 1 A.E.R 153 and Court to mind the words of Lord Wilbe e i y at page 156 19 (1) . He contended that, even if there is in stence an as tween the Plaintiff and the first Def relat to CuI de Sac Distillery, is I st under the stration Act, as stat t Deed e t t on the pC3.rt of the Pl:lin+- i:+= to register serest as under the Civil Code and the Land Registration Act is al to t aintiff's Claim against the second Def as set out numbers I, 2 and 4 above. Learned Counsel argued that s the close of aintiff has paid stamp duty on the Deed of Sale and att to ster the same and quite the strar gave notice that fact to the second fendant as a cautioner, as red the Land Registration Act. He said that this new aspect raises the issue of priority of claims as between the Plaintiff and the second Defendant. He further stated that the Plaintiff pI second Defendanc nas cted chat the second Defendant is actual possession of the Cul-de-Sac Distillery and was possession at the time that t Plaintiff attempted to register the Deed of Sale. Therefore the second Defendant has an overriding erest under Section 28 of the Land Registration Act and the case of Bridges v Mees (1957) 2 A.E.R 577. H,= then asked the question whe it could aintiff was in enjoyment of an overriding interest execution of the Deed of Sale and its alleged ' f the CuI de Sac stillery. He Williams & Glyn's Bank Ltd v Boland 1980 2 A.E.R 408 and so Abbey National Building Society v Cann and Another 1990 1 A.E.R 1085 both state words 'actual occupat~.on' ~s a question of fact Court to decide. He argued that by paragraph 24 of the first defendan~'s Defence and Counterclaim the first defendant pleaded that t Plaintiff" fail o supervise, maintain or utilize the stillery." He sa s allegation of t was not travers it fore d regarded as an admission. White Book 1993 Vol. 1 at page 324 Note 18/13/3. Learned Counsel referred to paragraph 11 3) of the PIa iff's Statement of Claim in whish the a ~~~ 211e~cs t first Defendant wrongly purporting, to be the owner of CuI Sac Distillery, executed an agreement in writing on 1st February, 1990 to sell the CuI de Sac Distillery and other lands to the second Defendant and wrongfully conspired with each other to ure aintiff by the first Defendant committing a breach the contract between the aintiff and the first Defendant contained in the said Deed of Sale. He submitted that the essence the Tort of Conspiracy is t a third person with knowledge of a contract between two other persons has dealings with one of the parties in a manner inconsistent with existence of that contract. He stressed hat there must be knowledge of the existence of the contract and an ention to erfere with its performance. Merkur Island Shipping Corporation vs Laughton 1983 2 A.E.R 189. Secondly, that the action must be undertaken for the purpose of uring the Plaintiff Lonrho Ltd and others v Shell Petroleum Co. Ltd and others 1981 2 A.E.R 456. He said, based on the above, there must be a contract between t aintiff and the first Defendant which was stence on 1st February, 1990 and that the second Defendant had of knC'".vl were contract. He said that three particulars the Plaintiff. Firstly, t~at the Plaintiff was in open and cont possess f the CuI de Sac Distillery between 20th July, February, 1990 when the second Defendant ct aintiff. Secondly, that, by letter, exhibit (L.C. 21) dat 2nd 1990, reference is made to a meet "a few years ago I to t "time cor purchased the stillery and its the Government of Saint Lucia. You were k to send two ;2::tlE:men from your Sa Croix office to meet 1:-'rlme lVJlnl.SC8r Compton and myself to discuss the installation of stillery's two mooring buoys and raw material pipeline t Learned Counsel submitted that this in ef ct refers to t t of meeting, not the fact that there was knowl second Defendant that the aintiff had purchased t property. He said that a perusal of letter dated 14th August, 1986 t PIa iff refers to "with respect to an Agreement whi I have ust made wi Government of Saint Lucia." Yet paragraph 3(a) of its aintiff states that Memorandum of Understanding was dated 5/3 87 and Deed of Sale dated 20/7/87. The second Defendant It was aware of any other Agreement between Plaintiff and thp. Government of Saint Lucia. rdly, that the Plaintiff alleges that by Statutory Instrument No. 35 of 1987 of t Laws of Saint Lucia, the second Defendant should have gained knowledge of the Plaintiff's contract with the irst Defendant as far as it related to t Sac still He argued that, infact, the uncontrovert Court is that little, if any, construction took place and t lack of activity at the CuI Sac stille d lead one to conclude that the project was abandoned. He argued strenuously and persuas~ve t s e it was trite law that he who alleges must prove it was incumbent on t pIa iff to prove the conspiracy between t~e De s. He said that the contract which the Defendants are all to conspired to break is none ot than t Deed of Sale it is agreed was unregistered at t materi t (1st of 1990). He contended that Section 38 of t Land strat Act ed above applied to the situat He argued that the: e of Section 38 of t strat Act -.::ould not be clearer since what it was to create an irrebuttable presumption that where a registrable erest is ed by a proprietor to that other, wi 1 ster s erest and that failure to so will raise pre that no such interest exists. He further t even if presumption was rebuttable, there would to be very clear and controvertible evidence that the prime purpose of the transact as between t Defendants was for the purpose of defeat s of the plaintiff. Midland Bank Trust Co. Ltd v Green 1978 3 A.E.R 555. He concluded by sLressinq that Lhere had not been one iota of evidence to indicate that the intention of the Defendants was to ure the Plaintiff as pleaded by Paragraph 11 3) of the Statement of Claim. arguments by Mr. P. J. Husbands Q.C., on behalf of the first Defendant were very ef. He t a iff breached the contract and the was on laintiff to He sa t iff t seven to ster the SaJ.e Court to note t L.C. 5. pause here to state that t L.C. 5 is a t Crown tude or easement over a s o the Plaintiff f a s z ion of the's s, situate on de Sac Cast int Lucia, ed 13th f 1987 and stered :)n 2 th f July, 1987. Counsel d that t first Defendant es I t legations in the Statement of Claim 13 and 14 which s with ownership and s wi aims for damages. said that first Defendant es 2~1 ~ ~ I ions the Plaintiff s Stctement of CIa Memorandum of Underst dated 11th S ember, 1 86 of De ), aintiff did not re 0 t terms of memorandum to re sh the CuI Sac Disti lery and market alcohol beverage al fter referred to as project. further argued that it was an ied t f t e and conveyance that Plaintiff had an Alien's and hold the stillery. ence to purchase He said t t ien's Landholding cence was ed on t that it was used solely the project. He also argued that the Pia iff not st on Alien's Landholding cence and there no licence to purchase and hold the property for the ect. Paragraph nine Defendant's first fence the ternat the Defendant tates that resc agreement. said that based on Lisle Chase, Secret of Company, since its even had to sue t services rende who t the Court " ess tnev are documents by me I cannot say wnether are true or not, " 11 ev on If of t Plaintiff was useless. He contelded that f stamp on the ien's cence is mandatory Section 17 of Alien's Landholding Regulation} Act No. 10 of 1973 St. Lucia Laws. He said that it L.C. ) Pl iff's Alien's cence registe on the 2 1987 was a f s the cheque issued Plaintiff to Barclays Bank was later shonoured and stamp was obta as a re t =~iminality and is quoted many hypotheti situations to me are i evant. thrust of the first De's ss were that (1) The court will not sanct a cla a based on fraud; 2 ) Where no time is stated a contract the Court will infer reasonable t for performance; and (3 ) Forfeiture of a property held by an l ien. He quoted the case of Chase Manhattan Bank N.A. v Kaffke Berglund v Kaffke 1984 33 W1R Page 132 which deals with the an Alien's failure to ster 's Landhol cence. Learned Counsel for the Pla iff tted that the Plaintiff was incorporated as a Limited Company the Commercial Code Saint Lucia on 4th March, 1987 ( it L.C. 3); t on 26t of June, 1987 the a iff Barc ays PLC Draft 58360 in the sum of $228,825.00 to issued in favour the irst Defendant representing the stamp duty payable f an Alien's Landholding cence said draft was it to ~~count the Accountant Gene at t Nati Commerci Bank of Saint Lucia Ltd; that, that was honoured Barc as admitted by Ri Gomez under Cross the 1st July, 1987 an Alien's Landholding cence was to Plaintiff "to se and hold as owner the propertv." He asked that cognisance t f page 1 f the licence on ch is the stamp of $228,825. was paid. He argued that the licence was duly st on the 2 7 198 in . 140 as No. 158119 never en , its has never been canc~::~C ~nd that there has never of any Court claring a forfe ture of cence t as C.4) . said that on the lOth 0 July, 1987 $250 I a was paid bV a Barclays Bank cheque favour of the Accountant General is not sputed; that a servitude over a ion of en's Crown grant was conveyed to the Plaintiff on 13th f , 1987 ste on the 29/7/1989 Vol. 140a No. 158431. He hat this grant acknowl the s ration of t Alien's Licence and noted that the condition of the said licence was It was o be used for the purpose of a distillery." He cont s grant and its st at was notice to t whole d the presence of Plaintiff in the Cul-de-Sac t LC 5 He said that Exhibit LC 6 was the De of Sale Oth 1987 by Her Majesty Queen Eliz th, whom the first De represents, to the Plaintiff for the price of $1.13 llion of Is 0645B 3, 0645B 7, 0645B 8 4645B 9 t r ant equipment, machinery boilers; that of t ce was paid viz $250,000.0 at the execut t balance was secured by's ch the Pla iff covenanted to pay wit 5 years with eresti e was and clear from all encumbrances for the sa Vendor's lege. contended that that ate possession was to Plaintiff and there the De nt ~as aware of the aintiff's interest t land e, moreover said the 28th , 1986 the ster Leon Hess of second Defendant, t the Government was iat the sale the property e to Pierre La Traverse ( he Chairman Managing Director of ricor) the Plaintiff (LC and Leon Hess of their scuss a earlier of t and unloading of the raw and ref ts to from the stillery. on the 14th t, 1986, the rector of aintiff wrote to the said Leon Hess of the had just made th t Government f Sa Lucia whereby he "would acquire the assets stillery situated Cul de Sac Bay; that by a furt Letter of 28th ( nd exhibit under notice to admit documents t t irst fendant numbered RI 2; i Pr ster again Leon Hess of negotiat of Sale of Inter Cont al Distille es t a group headed by erre La Traverse and Hess to certain issues so that the sale may conc Counsel said that by Statutory Instrument No. 35 of 1987 laimed on 25th f July, 1987 and i ficial Gazette, the Plaintiff became an ent ise the purpose of manufacturing certain declared products its permanent factory at Cul de Sac. Counsel t t a iff's letter of 12 tober, 1988 to Leon Hess proposing a bus ss 1 and ref II our Saint Lucia ant II It our acent sites Sac, Hess was being t t iff was t owner of rty adjacent to Hess at de Sac it L. C. 33); posting of Security personnel on che site was notice to t world indeed to the next ne WeSS I, t fendant. Counsel argued that if t second De d not know of t aintiff's erest in land fore its for e on the 1st ! with the first Def known so upon rece f letters dated th t L.C. 22) 28th 1 9 t . C. 25 March, 1990 (Exhibit L.C. 26/. contended that a i f had entered 0 session of the dispute; t s fact d ascerta t

10.the first Defendant that paid Plaintif_'s rsonne to 31st March, 1 90. He the Court s e so said he paid wages to the s personne at least on one casion. He argued was proof t t a f entered into possession. Learned Counsel ed out the Court that the Memorandum Understanding the irst Defendant th was never put dence. He stressed that the Deed f e was unconditional and that the Alien's cence was on tion that a distillery est i Second Schedule to the said licence re "The property is to be used for the purpose establishing a distillery" contended that t letters to the first Def from he Plaintiff clearly showed that the Plaintiff was stment- broking and that the aintiff did not have t to ement the project hence the reason why the f t Defendant gave the aintiff five years to secure the ance of ceo , 1988 ( t L.C. the that the letter of 18th Prj~d Minister to the Plaintiff showed t first De ~ of approved of the Pla~ntiff's stment Counsel vehemently that there was no of f the Plaintiff or its Director as was t Counsel for the first Def He deni t for the the He went ien's Landhol cence was di through in chronol t order the etters rece Minister which cated t latter to t e the contract between the Plaintiff and the first fendant. first letter was 9th t, 1988. In tter the Mi""istc~ stated the Government was II terminating any Government had the sale of prope to your concluded s arguments on facts and sa that s no t se Defendant ever a an Alien's LJGtHullulding cence. Counsel's submission on the law were as lows: (1) Firstly, that the Plaintiff's unregist Deed of Sale operated as a contract binding on PIa iff and t first Defendant. Section 37 (2) Land Registration Act 1984. Demers, Traite de Droit Civil du Quebec pp 322 - 331. Act 1967 of the civil Code. "Registration gives effect to real ghts and establishes the order of ty ..... " He said that Demers at page 30 states: "But lack of stration does not trument 1 so far as the ies to e are . Who rema II bound to it and are noe released from their obl Registration ~oe8 not Constitute the title of owner.. ........ strat s a it notes it, it publishes it, the of istration s not render the title 1, it does not af t vali tv of title" further quoted Articles 1968 and 1980 of the Civil Code and related Demers' comments to them. argued t the of the Defendants never stered as the 1 a caution s not consti tute stration of a rand ed Civil No. 11 of 1991 (1) Peter In. Marie (2) Clotilda In. Marie and (1) Laurima Lowrie (2) J. C. Collymore Ltd. 3 paragraph 6 where Byron J. A. d: "Looking at the s f the 1 slation a caut s not confer any erest on the cautioner. t is s on an erest ch the caueioner cla to It s not provide any pr the caut . It des machinery whe any person who cla ertain interests will have an opporeuni to oDJect t ehe strat any disposition or the making of ent es affect same. " He quoted the Land straeion Act No. 12 f 1 84 Section 1 (1/. "The first registration of any parcel shall ef ed by the ion a register in th provision of Sect 9 and the s he strar of the particulars f the owne and i ars of s, if any, thereon. (2 ) Every scration effected an entry in the ster in as t strar may from time to t ,and the cancellation the entry, if ,which it aces." He submitted that the effect f Sections 3 and c the Alien's ( ation .I\ct is t second Def is an i a ien and e of ding the and in e even if its interest t of t ff, it not. He that the words 11 be forfei ed in ien's Landhol Act means liahle to l't-"" '- '-'-L \;,.;: • Attorney General v Parsang 1956 1 A.E.R page 65. further submitted that even if the Defendants could prove the ssion of an illegali t performance f the contract, ch is strenuous ed the Pla iff s s not render contract ill and e. Paragraphs 16010 Chitty on Contracts Vol. 1 27th Edition said that by virtue of Article 1397 of t 1 Code the Defendants of the 1st of , 1990 was is 1 on the ground that on the date thereof the still curtilage did not belong to t first De and auot Bridges v Mees 1957 2 A.E.R 577. Article 1397 of the civil Code "The sale of a thing whi does not belong to t seller is Learned Counsel contended t unt s that to Barclays Bank of $228,825.00 t first Detendant are not recoverable and quot Chitty on Contracts of Vol. 1 27th Edition paragraphs 29 - 088, 29 -093 and stressed hat lit es are not to forced upon people their He urgued that the a iff not e t Contract Sa '_e and quoted Halsbury's Laws 4th Edition Vol. 9 paragraphs 479 - 486 and 535 558. He sub;nitted t t f t was the first Defendant who breached he \ t ction ch he owed 0 the Plaintiff, he wrote 0 a iff stat';,..,~ Government of Sa Lucia as t e owner stil at Cui de Sac, Lucia and the 1 s the curti aoe of the said distillery so d said property t Hess i Sa Lucia) Ltd and has ac Hess o possess f the same as rom the 1st 1 9 t L.C. 36 " He further quote~ t~2 ~rticles of t Code , e.g. Articles 1416, 1417, 1418, 1421, 424, 1 45. contended that on the facts the second Def thout reasonable justification or excuse first fendant to break its contract th the a iff and Clerk and Lindsell on Tort 16th Edition 15-02, 15-03, 15-04, 15-08, 15-

12.He argued that by the agreement of t 1st tween the Defendants, it aga can cl y be seen t Def s wrongfully conspired with each other to i ure a iff first Defendant committ a of the Contract ween aintiff and the first Defendant contained in the Deed f e of th July, 1987. He quoted the paragraphs that dealt th the Tort of iracy Clerk and Lindsell on Torts 16th Edition. argued that the Pla iff was entitl to s ed Mc. Gregor on Damages 14th Edition pages 1101 c - e. so contended that the Pl iff was ion when cted by the second Def argued that OD chard Gomez's e the stamp autv on he Plaintiff's Alien's Landhol cence was duly paid. He concluded s submissions stat t the ,)1 iff was so entitled to interest on ts award of s from the od when the cause of action arose. CONCLUSIONS: I will deal first with the Plaintiff's case aga t the fendant. The Pla iff claims that the the rst Defendant and the second Def dated 1st f s null and void because on that s _~= ~~~3t Def was not owner of the land quest viz land situate at Sac, Castries, Sa Lucia and shown on the istry map as parcel numbers 0645B 3, 0645B 0645B 8 and 6 5B 9 because at that date belonged to the Plaintiff, he red it from the f Defendant on the 20th day of Julv, for the sum of 1,130,000.00. A perusal of the four sters ted the second Defendant through Barbara Pierre cl shows that these four parcels of land ment above are the name 0 t Crown who is represented he Attorney General of Saint Lucia, the first Defendant in s suit. In Book Eighteenth of the Civll Code of Saint Lucia entitl Registration of Real Rights" Article 1967 s "Registration gives effect to rights establishes their order of " I will now quote relevant sections of the Land Registration Act 984. Section 37 (1) states: "No land, lease or regist under s Act capable of being disposed of accordance wit this Act, every attempt to dispose uf such land, lease or herwise than in accordance with this ~ct uneffectual to create, extingui ,transfer, vary or affect any r or erest the land, lease or c." Section 56(1) reads as follows: " (1) A proprietor, an instrument in Notarial transfer s land, lease or c to any person or without consi ration. (2) The transfer shall be completed strat on of the transferee as proprietor of the 1 ,lease or and by filing the instrument. Section 2 reads: "Proprietor" means the rson registered this Act as owner of land or a lease or hypothec." As stated earlier, t parcels of land as Sac stillery, are regist in the name of the Crown. The Crown s noted in the Land Registry as proprietor. s being so, it is my ew after care consi of relevant law that on the 1st f , 1990 t first Defc.J'~cU was the reglstered owner of "Cul de Sac stillery" and as could contract with anyone and indeed the second Def for sa.Le of the said "Dist llery." The Plaintiff also claimed that while open cont possession of the said "Distillery" from t 20th of July, 1987 it was evicted same t Def As I see it, whether the Plaintiff was in possess is a quest f fact for the Court to decide. The evidence discloses that monies were paid for the lnsurance persons who acted as security at the still II t iTSC f2ndant who up to 1990 exhibited a document for amount c L 212,015.43 to that effect. This, my is natural consequence, a duty of an cwner of a distillery and lS February 1990 the first De was possess stillery. The Plaintiff however contends was the owner sess at that time in question though it agrees on or February, 1990 it was cted by the De is presently in actual possession. t is to be noted that by paragraph 16 of the Pl iff's Defence to Counter Claim of the first named Defendant the pl iff eaded that "the Plaintiff never requested or Defendant never such expenses or any of them as the Plaintiff's agent." t therefore follows that it was the first Def who was owner actual possess on the 1st of , 1990. Abbey National Building Society v Cann and another 1990 1 A.E.R 1085. It is unalsputed that following the agreement tween defendants, the second Defendant entered into possession. The evidence also discloses that on the 12th day of February, 1990 the second Defendant entered a caution against the property parcels of land which formed the Distillery) at the Land Registry. At that time the only entry on the registers was that of the first named Defendant as 'owner'. Section 38 of the Land Registration Act 1984 states: (1) No person dealing or proposing to deal for cons rat with d proprietor shall be required or in any concerned (a) to inquire or ascertain the circumstances or consideration for which such proprletor or proprietor was registered; or (b) to see to the application of any consideration or any part thereof, or (c) to search any register kept under the s of Book Eighteenth of the I Code. 2) Where the proprietor of land ? 2.e3.2e or a hec is a trustee he shalJ in dealing rewi th be be proprietor thereof, and no disposit to a r faith and for consideration shall feas reason the fact, that such disposition amounted to a of trust. 3) Nothing contained in this section shall relieve a r in good faith and for consideration of his obI to the Registry. " In Midland Bank Trust Co. Ltd v Green and another (198l) 1 A.E.R. 153 at page 156 Letter 9 Lord Wilberforce reiterates t the word Purchaser means any person ..... who for valuable consideration, takes any interest land .... " The land which forms the Cui de Sac stillery is land st under the Land Registration Act and the Plaintiff's erest was not registered on the 1st of February, 1990 and indeed on the 12th February 1990 when se De ent the caut my opinion; t question, is a This statement therefore; caution an interest? In Civil Appeal No. 11 of 1991 Peter In Marie, Clotilda In. Marie vs Laurima Lowrie and I.J.C. Coilymore Ltd. Byron J. A. s to say at Page 3 ..... "a caution does not c0n£er any erest on cautioner. It is based on an interest whi the cautioner cIa to It does not provide any ori for the cautioner. It provides machinery whereby any person who claims certa intereFts 11 have an opportunity to ect to the stration of disposition or the making of entries affect same." Therefore accordance with the above mentioned case t Defendant was entitl to ensure that its to eventual ownership was not negat t vendor, t first De until legal title was vested it strat as or in accordance with Section 23 of the Act. The Plaintiff quoted Bridges v Mees 1967 2 A.E.R. Page 577 as authority that the Plaintiff had an overriding interest aoa t the property. I do not agree with the submission. In Bridges v Mees full payment of the purchase ce had been made to the and hat the Plaintiff had been in possession of the twelve years (statute of tation could run s favour! strable title was Therefore the Defendant's subj ect to overriding interest of the Plaintiff . n my view, in this case, the second named Defendant is not subject to any overriding interest favour of Plaintiff. The Plaintiff pleaded at paragraph 11(3) of its Statement of Claim that the Defendants wrongfully conspired with each r to ure the Plaintiff by the first named Defendant committing a of the contract which contract is contained in the Deed of e dated Oth July, 1987. The tort of conspiracy though having a wide t i simple language means a t rd th or a contract between two ot r persons has deal th one of the parties in a manner inconsistent with t existence of rcntract. In Merkur Island Shipping Corporation v Laughton and others 1983 :2 A.E.R Page 189 at Page Lord Diplock sa must knowledge of the stence of the contract concerned ention to interfere with its " In Lonrho Ltd and others v Shell Petroleum Co. Ltd and others 1981) :2 A.E.R 456 it was that of t tort conspiracy was restricted to acts execution of an between two or more persons for he Plaintiff's !~terest not ext to acts persons merely for the purpose of protect ir own erests. on the relevant law in r to f the fendant conspired th the first De to ure laintiff, I must find t there was a valid contract aintiff and the first Def ch conc ion I 11 state ater) . reference to the contention t the se De the existence of that contract and intended to e performance of that contract, the letters were t by the Plaintiff (Exhibits LC 29 and 30) In exhibit L.C. 30 a letter dated 14th August, aintiff to the second Defendant, the r states in t first paragraph "I would like to meet you with re to an ch I have just made with the Government of Lucia." It is to be noted that the Plaintiff pleaded by paragraph 3(a) of its and Defence to Counter aim t Memorandum of Understanding and the leged Deed of Sale ace 1987. n my Judgment the pI iff has not the s Defendant knew of the stence any contract the aintiff dnd the f Defendant. will now consider t case of the PIa iff t first Defendant. The Plaintiff claims that there was a contract, a Sale the CuI de Sac Distillery between the first Def itself dated 20th July, 1987; that part of the e ce was paid balance secured by vendor's lege to be f years of the Deed of e and that upon execution it ate entered into possess of the said Distill The first Defendant admits the Deed of Sale of 20th 1987, states that thereNas a previous document, a Understanding which conta the the Deed e. Unfortunately, this was not tendered at t as tated earlier. The first Defendant's contention is that it was an condition of the Deed of Sale and conveyance that the PIa iff had an Alien's Landholding Licence and the aintiff t a registered Alien Landholding Licence. However, t sclosed that the cheque was dishonoured and t amount he said Alien's Landholding Licence was eventual re to Barclays Bank (Exhibit H.A.1) on the 15th of November 1989, having been made by Barclays Bank since 21st of January, 1988 Exhibi t RG1) . first Defendant furt r contends t s licence was obtained by fraud then it is a fraudulent misrepresentation. What is the effect of such a at t is trite law that a ent misrepresentat a contract voidable and that the party who has misled may avoid" the contract and all he has to s to notice, words or conduct that he refuses to be bound it. the first Defendant give any such notice to PIa iff? :.etter dated 9 August, it L.C.31 t f t aintiff. I now t letter Defendant wrote to the ts entirety. "9th t, 1988 . Pierre P. La Traverse 90 Bay Street te 1506 Toronto CANADA M5H 2Y2 lr CUL DE SAC DISTILLERY I am returning your NO. 021 for $25, 00. which is intended as consideration for the deferment of the interest on he capital sum for the CuI de Sac Distillery. You will recall that the agreement for the only after you had given firm assurances that satisfactory arrangements for financing the stillery and the marketing of the products, introduced representatives of two companies who associated with you in this venture. I have since rece a" leged and confident " correspondence from one of the companies which roduced as an associate in this project, stating that t company had t scussions with you and had no further erest t Because of your failure to meet numerous undertakinos prevlously given by you regarding the distillery, lncluding t non-payment of (1) interest, (2) the insurance on the prope 3) the workers' wages, (4) your attorney's sand (5) shonouring of one cheque presented to pay the Alien's cence fees, Government no longer has any confidence in your lity to meet your commitments to get the distill operat and consequently is terminating any agreement Government made for the sale of the propeto your company. Government intends to repossess the property on the 15th August 1988. Government however as an ex gratia gesture will refund you in full the deposit made on the purchase price and will to Barclays Bank the cence which has been dishonoured by ch is now the subject of Lucia. s as to resort to a venture anyone I regret that government has been tic measure, but i~ is important t s, Government should have full conf a valuable property is entrust Yours thfully, Pr Minister my judgment the above noted letter is not to" or terminate any contract there may have been between Pla iff the first Defendant. a further letter dated 13th ember 1988 L.C.32 the f Defendant reminded the Pl iff of its notice to sess. As I see it the contract entered into the Pla iff and first Defend~~~ o~ the 20th 1987, was Plaintiff and the first Def treated t contrac~ as scharged and thereupon informed the Pl iff of its ent to so (treat the contract as suchl . t is my view that the Plaintiff is actual non performance of the contract. on s conclusion I now state there was no contract tween the a iff the first Def on t 1st February, 1990 for the Defendants to conspire to ure the aintiff. f the first Defendant paid sal s, wages and to protect its property, it cannot claim t amount of $212.015.43 rom the Plaintiff. Therefore its Countercl must f

1.order is therefore as follows: 1) That the Plaintiff's case t first Defendants is 2) The first De's Counterc is so 3) That Pl tiff is to costs to s to agreed or se taxed.

SUZIE d'AUVERGNE

PUISNE JUDGE

Suit No. 481 of 1991 D’Auvergne, j Delivered: 30/04/96