Court of Appeal Sitting – 3rd to 5th June 2019

EASTERN CARIBBEAN SUPREME COURT COURT OF APPEAL SITTING ANGUILLA 3rd to 5th June 2019 JUDGMENTS Case Name: Attorney General v Cecil Toussaint [SLUHCVAP 2018/0029] (ST. LUCIA) Date: Wednesday, 5th June 2019 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.] Appearances: Appellant: Ms. Erica Edwards, Senior Crown Counsel, Attorney General’s Chambers, Anguilla holding for the Attorney General of St. Lucia Respondent: Ms. Eustella Fontaine holding for Mr. David Francis Issues: Civil appeal — Seizure and detention of cash under Proceeds of Crime Act of Saint Lucia (as amended) — Whether amendment to Proceeds of Crime Act unconstitutional — Whether learned judge erred in holding that search of appellant’s premises was unlawful — Whether learned judge erred in ordering return of cash seized from appellant’s premises Result and Reason: Held: allowing the appeal; setting aside the declarations made by the learned judge; making the declarations set out at paragraph 66 of the judgment; and ordering that each party shall bear their own costs; that: 1. The amendments to the Proceeds of Crime Act, in particular section 49A, do not infringe or breach any provision of the Constitution, neither do they infringe Mr. Toussaint’s constitutional rights. It is clear that before the relevant amendments were enacted, only criminal asset forfeiture existed in relation to money laundering. A person’s assets could have been subject to forfeiture only after a conviction. The amendments introduced civil asset forfeiture, a new regime that is separate and distinct from criminal asset forfeiture which originally existed. Insofar as civil asset forfeiture is concerned, the Magistrate’s Court or District Court is clothed with the jurisdiction to forfeit the assets of a person who has not been convicted. This is an entirely new legislative framework that is also aimed at combating money-laundering. Section 49A of the Proceeds of Crime Act Cap. 3.04, Revised Laws of Saint Lucia 2015 amended by Acts No. 4 of 2010 and No. 15 of 2011 applied; Ahmed Williams v The Supervisory Authority ANUHCVAP2015/0035 (delivered 13th July 2017, unreported) followed. 2. There is nothing in the Constitution which prohibits Parliament from creating a civil asset forfeiture regime through section 49A of the Proceeds of Crime Act and clothing magistrates as distinct from the judges of the High Court with the jurisdiction to hear these claims. It is settled law that Parliament has the authority to introduce legislation which vests a new jurisdiction in the Magistracy. However, it is the law that Parliament cannot vest a jurisdiction which was previously exercised by judges of the High Court in the Magistracy. Judges of the High Court never had any jurisdiction for civil asset forfeiture in relation to money laundering. The question of taking away the jurisdiction of judges and giving it to magistrates in civil asset forfeiture does not arise. The learned judge therefore erred in concluding that the amendments made to the Proceeds of Crime Act were inconsistent with the Constitution. Hinds v R

[1976]1 ALL ER 353 distinguished. 3. The Proceeds of Crime Act (as amended) postdated the Constitution. There could be no question of seeking to modify the amendments to the Proceeds of Crime Act to bring them into conformity with the Constitution by utilising the savings law clause. The savings law clause is utilised only in circumstances where a law which predated the Constitution is inconsistent with it. As such, the savings law clause contained in section 2 of schedule 2 of the Constitution is not engaged. Therefore, the learned judge erred in relying on section 2 of schedule 2 of the Constitution which is the savings law clause to modify the amendment to the Proceeds of Crime Act.

Jabari Sensimania Nervais v The Queen

[2018]CCJ 19 (AJ) distinguished. 4. There is no basis on which the search warrant could be held to be defective. There is nothing in law which states that a warrant should indicate the person’s correct name. In fact, it would have been perfectly lawful for the warrant to have simply authorised the search of the premises situate at Fond Assau, Babonneau. The fact that Mr. Toussaint was not called “One Ras” is of no significance. The clear evidence that was placed before the judge indicates that the police intended to search his premises for drugs irrespective of his name and read the warrant to him at his premises at Fond Assau, Babonneau. There was nothing before the judge on which it could have been correctly concluded that the search warrant was not regularly and properly obtained from the magistrate. Accordingly, the search of Mr. Toussaint’s premises was lawful. Further, pursuant to section 49A of the Proceeds of Crime Act, the seizure and detention of the cash were permissible. Attorney General of Jamaica v Williams (Danhai) et al

[1997]UKPC 22 applied. 5. Insofar as the search of Mr. Toussaint’s premises [Oral Delivery] was lawful and the seizure and detention of the cash were appropriate, the learned judge erred in ordering restitution of the cash seized from Mr. Toussaint. APPLICATIONS AND APPEALS Case Name: Dion Friedland v Charles Hickox [AXAHCVAP2017/0003] Date: Monday, 3rd June 2019 Before: The Hon. Mde. Louise Blenman, Justice of Appeal The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Clyde Williams with him, Mr. J. Alex Richardson Respondent: Mrs. Tana’ania Small Davis with her, Mrs. Latoya Hobbs- Nurse Issues: Application for Final Leave to Appeal to Her Majesty in Council Type of Order: Oral Decision. Result / Order: It is hereby ordered that: 1. Final Leave to appeal to Her Majesty in Council is granted. 2. The costs of this application are costs in the appeal to Her Majesty in Council. Reason: Case Name: Dion Friedland v Charles Hickox [AXAHCVAP 2017/0003] Date: Monday, 3rd June 2019 Before: The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.] Appearances: Appellant/Respondent: Mr. Clyde Williams with him, Mr. J. Alex Richardson Respondent/Applicant: Mrs. Tana’ania Small Davis with her, Mrs. Latoya Hobbs- Nurse Issues: Application for Security for Costs pursuant to Rule 24.2 of the Civil Procedure Rules 2000 – Quantum Type of Order: Oral Decision Result / Order: [Oral Delivery] It is hereby ordered that: 1. The application for security for costs is dismissed with costs to the respondent to the application, Mr. Dion Friedland, agreed at US$2,500.00. Reason: The Applicant Mr. Charles Hickox, was the defendant in the High Court, the respondent in the Court of Appeal and is also the respondent in the pending appeal to the Privy Council. The respondent to this application is Mr. Dion Friedland, who was the claimant in the High Court, the appellant in the Court of Appeal and is also the appellant in the pending appeal to the Privy Council. Mr. Hickox applied to this Court for an order that Mr. Friedland be required to provide security for the defendant’s costs in the sum of $200,000.00 within twenty-one days of the date of the order and that in the meantime, all further proceedings are stayed. In his notice of application, Mr. Hickox sets out 11 grounds, which are essentially recitals of the background facts. The relevant facts though are that Mr. Friedland made a claim against Mr. Hickox in the High Court, which was unsuccessful, and the High Court ordered him to pay costs to Mr. Hickox. Mr. Friedland then appealed to the Court of Appeal, where he was again unsuccessful, and was ordered to pay costs to Mr. Hickox. Mr. Friedland sought and obtained leave to appeal to the Privy Council, but was denied a stay of execution which he had also sought from the Court of Appeal. Mr. Friedland is ordinarily resident out of the jurisdiction and does not, to Mr. Hickox’s knowledge, have any assets in the jurisdiction. Mr. Hickox is therefore concerned that: “It would be very difficult and or quite costly to enforce any costs order against the appellant given that the appellant has given multiple addresses in different countries including England, South Africa and the United States and it is not known where he has primary residence or where his assets are located.” The person referred to as the appellant is Mr. Friedland. Although the application for security for costs was set down to be heard together with Mr. Friedland’s application for final leave to appeal to the Privy Council, counsel for Mr. Hickox, Mrs. Tana’ania Small-Davis, has asserted that this was a mere coincidence and that the application for security for costs was not made pursuant to, by virtue of, or in accordance with the Privy Council Rules; and she concedes that, having regard to the case of Electrotec Services Limited v Issa Nicholas (Grenada) Limited

[1998]UKPC 7, her application would have been dead in the water if she had sought to go that way. Mrs. Small-Davis also stayed away from any reliance on rule 62.17 of the Civil Procedure Rules 2000 (“CPR”), because here too the application may have been dead in the water, as it could only be granted under rule 62.17 as security for the costs of the appeal to the Privy Council, and security for costs of the appeal to the Privy Council had already been granted in the order granting conditional leave to appeal to the Privy Council. Mrs. Small-Davis’ position is that her application for security for costs was made under the inherent jurisdiction of the Court. She cited the cases of Bell Electric Limited v Aweco Appliance Systems GmbH & Co KG -

[2003]1 All ER 344 (which is a decision of the English Court of Appeal) and Norgulf Holding Limited v Michael Wilson & Partners Limited (BVIHCVAP2007/0008, delivered 29th October 2007, unreported) (which is a decision of our Court of Appeal) in support of her submission that the court had an inherent jurisdiction to make an order for security for costs when it was just to do so. The Court does not see, however, how Bell Electric can assist the applicant, because although there is language used in the judgment in that case about the court’s exercise of discretion and its ability to deploy its powers to make an order requiring the appellant, as the price of prosecuting the appeal, to pay into court or otherwise provide satisfactory security for the judgment debt and costs ordered to be paid, the application for security for costs in Bell Electric was sought and made pursuant to rules 25.15 and 52.9 of the English Civil Procedure Rules and in fact related to security for costs of an appeal. Reliance on Bell Electric, therefore, still brings the applicant back to the CPR dealing with applications for security for costs on appeal, which rules Mrs. Small- Davis avoided. The judgment of the English Court of Appeal in Bell Electric does not therefore take the applicant out of the water. We are also unable to see how the applicant can be assisted by Norgulf Holdings, which is relied upon principally for the dictum of Barrow JA (as he then was) that: “I am satisfied that the Supreme Court has both a statutory and an inherent jurisdiction to make an order for interim costs”. And so it does. But this cannot ipso facto be extended to mean that if jurisdiction to make an order cannot be found under applicable rules - in this case, rule 62. 17 of the CPR or rule 5 of the Anguilla (Appeals to the Privy Council) Order - that the court will simply exercise an inherent jurisdiction to make any order as to costs, including orders for security for costs specifically provided for in the earlier-mentioned rules. Moving outside of the rules and going into the inherent jurisdiction of the court must be based on some exceptional circumstances; otherwise, there would be no reason for the existence of the rules. The circumstances of this case are unexceptional. A party has brought a claim on which he does not succeed in the High Court or the Court of Appeal. Costs orders are made against him in both courts. He resides out of the jurisdiction and may have no assets in the jurisdiction. If you leave out the appeal to the Privy Council, which Mrs. Small-Davis says is not relevant to her application, then it would be for the party in whose favour the costs orders were made to seek enforcement of the judgments of the court awarding costs to him either under the enforcement procedures contained in the CPR or under other applicable legislation. If you put into the mix that the party against whom the costs orders were made has gotten leave to appeal to the Privy Council, then the judgment creditor gets his security for costs under the Privy Council Rules, which has already been granted. Either way, there is no exceptionality and no reason therefore for this Court to go outside of the rules and to make an order for security for costs based on the inherent jurisdiction of the court before which an application coincidentally lands. In any event, the Court of Appeal deals with appeals from orders of inferior courts and there is no appeal before this Court of a judgment or order of any inferior court. In the circumstances, the application for security for costs is dismissed, with costs to the respondent to the application, Mr. Dion Friedland, agreed at US$2,500.00. Case Name: Henry Owens III [Oral Delivery] v Anguilla Partnership Enterprises Limited [AXAHCVAP 2017/0008] Date: Monday, 3rd June 2019 Before: The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.] Appearances: Appellant: Ms. Tara Carter Respondent: Mr. John Carrington, Q.C. with him Mrs. Latoya Hobbs- Nurse Issues: Civil Appeal - Whether learned master erred in treating A.P.E. Inc and APEL as two separate legal entities then as one and the same – Whether learned master erred in finding that the appellant contracted APEL to construct a villa – Measure of Damages - Whether learned master erred in finding that the respondent had adequately proven the cost of completing the construction – Whether learned master erred in finding that there was sufficient nexus between the expenses borne by APEL and the appellant’s actions. Type of Order: N/A Result / Order: It is hereby ordered that: 1. Both sides are to file and serve, within four (4) weeks, any authorities on the similar factual circumstances in which, as in the present matter, it is the purchaser who is in breach of the agreement; the vendor has expended monies and is left with an incomplete property; and how the courts have treated with the question of the measure of damages in those circumstances. Within four (4) weeks, both sides are to file and exchange authorities. 2. The parties shall put forward suggestions on the assumption that if the Court were to make an order for sale, if the Court were to get to that stage, what possible proposals or orders or directions the court should make in those circumstances. This should be submitted within four (4) weeks of today’s date. Mr. Kendrickson Kentish, with him Mr. Kerith Kentish 3. The decision on this matter is reserved.

Case Name:

[1]Estate of Dame Bernice Lake, QC (Deceased)

[2]Conch Bay Development Limited v The Attorney General of Anguilla [AXAHCVAP2016/0003] Date: Tuesday, 4th June 2019 Before: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise Blenman, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.] Appearances: Appellants/Responden ts: Respondent/Applicant: Mr. Ivor Greene, Senior Crown Counsel of the Attorney General’s Chambers Issues: Application for Conditional Leave to appeal to Her Majesty in Council Type of Order: Oral Decision [Oral Delivery] Result / Order: It is hereby ordered that: 1. Conditional leave is hereby granted to the respondent/applicant, the Attorney General of Anguilla, to appeal to Her Majesty in Council from the decision of the Court of Appeal of the Eastern Caribbean Supreme Court delivered on 11th December, 2018 on condition that: a. The applicant, within 90 days of the date hereof, enters into good and sufficient security in the sum of £500 for the due prosecution of the appeal, such security to consist of a deposit of the said amount at the court office. b. Within 90 days of the date hereof, the applicant do take the necessary steps for the purposes of procuring the preparation of the records, the settling of such records with the solicitors for the respondent to this application and the certification of the record by the Registrar of the Court of Appeal. c. The record shall be prepared in accordance with Rules 18 to 20 of the Judicial Committee (Appellate Jurisdiction) Rules Order 2009 and its Practice Directions 4.2.1 to 4.3.2 and Practice Direction and shall be transmitted to the Registrar of the Judicial Committee of the Privy Council without delay where final permission to appeal has been granted. d. The applicant shall make an application to the court for final permission to appeal to Her Majesty in Council supported by the certificate of the Registrar that the security for costs ordered herein has been given within the time prescribed by this Order to the satisfaction of the Registrar. e. The costs of the application for conditional leave to appeal shall be costs in the appeal to Her Majesty in Council. Case Name: [1] Estate of Dame Bernice Lake, QC (Deceased) [2] Conch Bay Development Limited v The Attorney General of Anguilla [AXAHCVAP 2016/0003] Date: Tuesday, 4th June 2019 Before: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.] Appearances: Appellants/ Applicants: Mr. Kendrickson Kentish, with him Mr. Kerith Kentish Respondent/Responde nt: [Oral Delivery] Mr. Ivor Greene, Senior Crown Counsel of the Attorney General’s Chambers Issues: Application for Conditional Leave to appeal to Her Majesty in Council Type of Order: Oral Decision Result / Order: It is hereby ordered that: Conditional leave is hereby granted to the appellants/applicants, Estate of Dame Bernice Lake, QC, (deceased) and Conch Bay Development Limited, to appeal to Her Majesty in Council from the decision of the Court of Appeal of the Eastern Caribbean Supreme Court, delivered on 11th December, 2018 on condition that: 1) The applicants, within 90 days of the date hereof, do enter into good and sufficient security in the sum of £500 for the due prosecution of the appeal, such security to consist of a deposit of the said amount at the court office. 2) Within 90 days of the date hereof, the applicants do take the necessary steps for the purposes of procuring the preparation of the records, the settling of such records with the solicitors for the respondent to this application and the certification of the record by the Registrar of the Court of Appeal. 3) The record shall be prepared in accordance with Rules 18 to 20 of the Judicial Committee (Appellate Jurisdiction) Rules Order 2009 and its Practice Directions 4.2.1 to 4.3.2 and Practice Direction 5 and shall be transmitted to the Registrar of the Judicial Committee of the Privy Council without delay where final permission to appeal has been granted. 4) The applicants shall make an application to the court for final permission to appeal to Her Majesty in Council supported by the certificate of the Registrar that the security for costs ordered herein has been given within the time prescribed by this Order to the satisfaction of the Registrar. 5) The costs of the application for conditional leave to appeal shall be costs in the appeal to Her Majesty in Council. Case Name: Carl Webster [Oral Delivery] v Historic Beacon Point Anguilla Ltd. et al [AXAHCVAP2019/0001] Date: Tuesday, 4th June 2019 Before: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Devin Hodge Respondent: Ms. Paulette Harrigan Issues: Application for Leave to Appeal - Whether the appellant has a realistic prospect of success - Whether there are other compelling reasons why the appeal should be heard – Application for stay of proceedings Type of Order: Oral Decision Result / Order: It is hereby ordered that: 1. With the leave of the Court, the application for leave to appeal is hereby withdrawn. 2. The application having been withdrawn, there is no need to stay the proceedings and accordingly that application is hereby dismissed with costs agreed in the sum of US$500.00 to the respondent as agreed to be paid within fourteen (14) days of today’s date. Reason: The application was withdrawn. [Oral Delivery] Case Name: Mr. Rocklyn Maynard v [1] Attorney General of Anguilla [2] Jason Hodge [AXAHCVAP2018/0009] Date: Tuesday, 4th June 2019 Before: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Devin Hodge Respondents: Mr. Ivor Greene, Senior Crown Counsel of the Attorney General’s Chambers for the first respondent Issues: Civil Appeal – Vicarious Liability - Whether Crown can be held vicariously liable for actions of its employee – “Close connection” test - Whether learned trial judge failed to apply the correct legal test for the determination of issue of vicarious liability – Whether learned trial judge failed to make an evaluative judgment having regard to the circumstances - Whether judge failed to properly consider interactions between parties as a continuous chain of events Type of Order: Oral decision. Result / Order: It is hereby ordered that: 1. The appeal is allowed and the judgment of the learned trial judge is set aside and the matter is remitted to the court below for a trial on the issue of vicarious liability and to determine the quantum of damages to be paid to the appellant by whichever party found to be liable on the basis of vicarious liability or otherwise. 2. There shall be no order as to costs. Reason: The Court has considered the issues raised in this appeal and noted that the issue of vicarious liability is a fact sensitive exercise. Accordingly, the determination of this issue ought to have proceeded to trial and this is so unless the parties had agreed all facts in respect of which the learned trial judge would have regard only in determining whether the first respondent was vicariously liable. As the matter turned out, there were factual issues in contention which were not resolved by a testing of evidence and indeed the learned judge based certain findings on an earlier statement of the claimant/appellant which was not part of the claimant's witness statement. All these compounded the irregularities which occurred in the procedure adopted for the determination of the issue without a trial. This Court is in no better position to decide on the question as to the correctness or otherwise of the learned judge's determination on the issue of vicarious liability based on the procedure adopted. Accordingly, the Court is constrained to allow the appeal and to order that the judgment of the learned trial judge be set aside and the matter be remitted to the court below for a trial on the issue of vicarious liability, and to determine the question of damages to be paid to the appellant by whichever party found to be liable on the basis of vicarious liability or otherwise. In the circumstances, there shall be no order as to costs. Case Name: National Commercial Bank of Anguilla Limited v Satay Limited et al [AXAHCVAP2017/0006] Date: Wednesday, 5th June 2019 [Oral Delivery] Before: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.] Appearances: Appellant: Mr. William Hare, with him Mr. J. Alex Richardson Respondent: Ms. Tara Carter holding for Mr. Harry Wiggin for the 1st respondent Issues: Interlocutory Appeal – Joinder of parties - Rule 19.2(3) of the Civil Procedure Rules 2000 - Whether learned judge erred in granting leave to intervene – Norwich Pharmacal Order - Right of appellant to participate in any proceeding which seeks to extend the ambit of disclosure of Agreement beyond what is permitted by disclosure order Type of Order: Oral Judgment Result / Order: It is hereby ordered that: 1. The appeal is allowed. The order of the learned judge made on 2nd June 2017 is hereby set aside. 2. The appellant is hereby joined to the proceedings below being in the nature of Norwich Pharmacal proceedings and is joined pursuant to CPR 19.2 (3). 3. All documents filed in the said proceedings be served on the appellant by the respondents within 14 days, by Friday, 21st June 2019. 4. The costs of this appeal shall be costs in the court below to abide the determination of the application. Case Name: Ruiz Phillip-Thomas v The Commissioner of Police [AXAMCRAP2017/0002] Date: Wednesday, 5th June 2019 Before: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Ruiz Phillip-Thomas in person Respondent: Mrs. Nakishma Rogers-Hull, Crown Counsel of the Attorney General’s Chambers Issues: Criminal Appeal – Appeal against conviction - Apparent bias – Whether learned magistrate should have recused himself in the absence of recusal application - Whether learned magistrate erred in law and was unreasonable in the assessment of the evidence – Whether learned magistrate wrongly adopted evidence of witnesses whose testimonies were also discounted when other related charges were dismissed Type of Order: Oral Judgment Result / Order: It is hereby ordered that: The appeal is dismissed. Reason: The appellant herein relies on this appeal on the ground of bias only, having abandoned his other grounds of appeal. The court notes that the allegations of bias were not matters which were addressed in the court below as no evidence of an application of recusal of the learned magistrate on the ground of bias appears on the record, neither has any evidence that the issue of bias was canvassed at the commencement of the proceedings or during the proceedings below being put before this Court. This is not an issue therefore or ground which the Court can entertain at this level for the first time and without any evidentiary foundation whatsoever. Accordingly, the appeal herein is dismissed. Case Name: Glory Trading Holding Ltd. v [1] Global Skynet International Ltd. [2] Alexander Bloch [AXAHCVAP2018/0012] Date: Wednesday, 5th June 2019 Before: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise Blenman, Justice of Appeal The Hon. Mr. Paul Webster, Q.C. Justice of Appeal (Ag) Appearances: Appellant: Ms. Tara Carter, with her Ms. Kristy Richardson Respondents: Ms. Jean Dyer Issues: Civil Appeal – Share Purchase Agreement – Interpretation of Share Purchase Agreement – Ratifications of actions of director – Whether Share Purchase Agreement intended to transfer all legal and beneficial ownership in Skynet - Whether Share Purchase Agreement was an agreement to sell legal and beneficial ownership of Skynet Type of Order: N/A Result/ Order: [Oral Delivery] It is hereby ordered that: The decision is reserved.

EASTERN CARIBBEAN SUPREME COURT COURT OF APPEAL SITTING ANGUILLA rd to 5 th June 2019 JUDGMENTS Case Name: Attorney General v Cecil Toussaint [SLUHCVAP 2018/0029] (ST. LUCIA) Date: Wednesday, 5 th June 2019 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.] Appearances: Appellant: Ms. Erica Edwards, Senior Crown Counsel, Attorney General’s Chambers, Anguilla holding for the Attorney General of St. Lucia Respondent: Ms. Eustella Fontaine holding for Mr. David Francis Issues: Civil appeal – Seizure and detention of cash under Proceeds of Crime Act of Saint Lucia (as amended) – Whether amendment to Proceeds of Crime Act unconstitutional – Whether learned judge erred in holding that search of appellant’s premises was unlawful – Whether learned judge erred in ordering return of cash seized from appellant’s premises Result and Reason: Held: allowing the appeal; setting aside the declarations made by the learned judge; making the declarations set out at paragraph 66 of the judgment; and ordering that each party shall bear their own costs; that: The amendments to the Proceeds of Crime Act, in particular section 49A, do not infringe or breach any provision of the Constitution, neither do they infringe Mr. Toussaint’s constitutional rights. It is clear that before the relevant amendments were enacted, only criminal asset forfeiture existed in relation to money laundering. A person’s assets could have been subject to forfeiture only after a conviction. The amendments introduced civil asset forfeiture, a new regime that is separate and distinct from criminal asset forfeiture which originally existed. Insofar as civil asset forfeiture is concerned, the Magistrate’s Court or District Court is clothed with the jurisdiction to forfeit the assets of a person who has not been convicted. This is an entirely new legislative framework that is also aimed at combating money-laundering. Section 49A of the Proceeds of Crime Act Cap. 3.04, Revised Laws of Saint Lucia 2015 amended by Acts No. 4 of 2010 and No. 15 of 2011 applied; Ahmed Williams v The Supervisory Authority ANUHCVAP2015/0035 (delivered th July 2017, unreported) followed. There is nothing in the Constitution which prohibits Parliament from creating a civil asset forfeiture regime through section 49A of the Proceeds of Crime Act and clothing magistrates as distinct from the judges of the High Court with the jurisdiction to hear these claims. It is settled law that Parliament has the authority to introduce legislation which vests a new jurisdiction in the Magistracy. However, it is the law that Parliament cannot vest a jurisdiction which was previously exercised by judges of the High Court in the Magistracy. Judges of the High Court never had any jurisdiction for civil asset forfeiture in relation to money laundering. The question of taking away the jurisdiction of judges and giving it to magistrates in civil asset forfeiture does not arise. The learned judge therefore erred in concluding that the amendments made to the Proceeds of Crime Act were inconsistent with the Constitution. Hinds v R [1976] 1 ALL ER 353 distinguished. The Proceeds of Crime Act (as amended) postdated the Constitution. There could be no question of seeking to modify the amendments to the Proceeds of Crime Act to bring them into conformity with the Constitution by utilising the savings law clause. The savings law clause is utilised only in circumstances where a law which predated the Constitution is inconsistent with it. As such, the savings law clause contained in section 2 of schedule 2 of the Constitution is not engaged. Therefore, the learned judge erred in relying on section 2 of schedule 2 of the Constitution which is the savings law clause to modify the amendment to the Proceeds of Crime Act. Jabari Sensimania Nervais v The Queen [2018] CCJ 19 (AJ) distinguished. There is no basis on which the search warrant could be held to be defective. There is nothing in law which states that a warrant should indicate the person’s correct name. In fact, it would have been perfectly lawful for the warrant to have simply authorised the search of the premises situate at Fond Assau, Babonneau. The fact that Mr. Toussaint was not called “One Ras” is of no significance. The clear evidence that was placed before the judge indicates that the police intended to search his premises for drugs irrespective of his name and read the warrant to him at his premises at Fond Assau, Babonneau. There was nothing before the judge on which it could have been correctly concluded that the search warrant was not regularly and properly obtained from the magistrate. Accordingly, the search of Mr. Toussaint’s premises was lawful. Further, pursuant to section 49A of the Proceeds of Crime Act, the seizure and detention of the cash were permissible. Attorney General of Jamaica v Williams (Danhai) et al [1997] UKPC 22 applied. Insofar as the search of Mr. Toussaint’s premises was lawful and the seizure and detention of the cash were appropriate, the learned judge erred in ordering restitution of the cash seized from Mr. Toussaint. APPLICATIONS AND APPEALS Case Name: Dion Friedland v Charles Hickox [AXAHCVAP2017/0003] Date: Monday, 3 rd June 2019 Before: The Hon. Mde. Louise Blenman, Justice of Appeal The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Clyde Williams with him, Mr. J. Alex Richardson Respondent: Mrs. Tana’ania Small Davis with her, Mrs. Latoya Hobbs-Nurse Issues: Application for Final Leave to Appeal to Her Majesty in Council Type of Order: Oral Decision. Result / Order: [Oral Delivery] It is hereby ordered that:

1.Final Leave to appeal to Her Majesty in Council is granted.

2.The costs of this application are costs in the appeal to Her Majesty in Council. Reason: Case Name: Dion Friedland v Charles Hickox [AXAHCVAP 2017/0003] Date: Monday, 3 rd June 2019 Before: The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.] Appearances: Appellant/Respondent: Mr. Clyde Williams with him, Mr. J. Alex Richardson Respondent/Applicant: Mrs. Tana’ania Small Davis with her, Mrs. Latoya Hobbs-Nurse Issues: Application for Security for Costs pursuant to Rule

24.2 of The Civil Procedure Rules 2000 – Quantum Type of Order: Oral Decision Result / Order: [Oral Delivery] it is hereby ordered that

1.The application for security for costs is dismissed with costs to the respondent to the application, Mr. Dion Friedland, agreed at US$2,500.00. Reason: The Applicant Mr. Charles Hickox, was the defendant in the High Court, the respondent in the Court of Appeal and is also the respondent in the pending appeal to the Privy Council. The respondent to this application is Mr. Dion Friedland, who was the claimant in the High Court, the appellant in the Court of Appeal and is also the appellant in the pending appeal to the Privy Council. Mr. Hickox applied to this Court for an order that Mr. Friedland be required to provide security for the defendant’s costs in the sum of $200,000.00 within twenty-one days of the date of the order and that in the meantime, all further proceedings are stayed. In his notice of application, Mr. Hickox sets out 11 grounds, which are essentially recitals of the background facts. The relevant facts though are that Mr. Friedland made a claim against Mr. Hickox in the High Court, which was unsuccessful, and the High Court ordered him to pay costs to Mr. Hickox. Mr. Friedland then appealed to the Court of Appeal, where he was again unsuccessful, and was ordered to pay costs to Mr. Hickox. Mr. Friedland sought and obtained leave to appeal to the Privy Council, but was denied a stay of execution which he had also sought from the Court of Appeal. Mr. Friedland is ordinarily resident out of the jurisdiction and does not, to Mr. Hickox’s knowledge, have any assets in the jurisdiction. Mr. Hickox is therefore concerned that: “It would be very difficult and or quite costly to enforce any costs order against the appellant given that the appellant has given multiple addresses in different countries including England, South Africa and the United States and it is not known where he has primary residence or where his assets are located.” The person referred to as the appellant is Mr. Friedland. Although the application for security for costs was set down to be heard together with Mr. Friedland’s application for final leave to appeal to the Privy Council, counsel for Mr. Hickox, Mrs. Tana’ania Small-Davis, has asserted that this was a mere coincidence and that the application for security for costs was not made pursuant to, by virtue of, or in accordance with the Privy Council Rules; and she concedes that, having regard to the case of Electrotec Services Limited v Issa Nicholas (Grenada) Limited [1998] UKPC 7 , her application would have been dead in the water if she had sought to go that way. Mrs. Small-Davis also stayed away from any reliance on rule 62.17 of the Civil Procedure Rules 2000 (“CPR”), because here too the application may have been dead in the water, as it could only be granted under rule 62.17 as security for the costs of the appeal to the Privy Council, and security for costs of the appeal to the Privy Council had already been granted in the order granting conditional leave to appeal to the Privy Council. Mrs. Small-Davis’ position is that her application for security for costs was made under the inherent jurisdiction of the Court. She cited the cases of Bell Electric Limited v Aweco Appliance Systems GmbH & Co KG – [2003] 1 All ER 344 (which is a decision of the English Court of Appeal) and Norgulf Holding Limited v Michael Wilson & Partners Limited (BVIHCVAP2007/0008, delivered 29 th October 2007, unreported) (which is a decision of our Court of Appeal) in support of her submission that the court had an inherent jurisdiction to make an order for security for costs when it was just to do so. The Court does not see, however, how Bell Electric can assist the applicant, because although there is language used in the judgment in that case about the court’s exercise of discretion and its ability to deploy its powers to make an order requiring the appellant, as the price of prosecuting the appeal, to pay into court or otherwise provide satisfactory security for the judgment debt and costs ordered to be paid, the application for security for costs in Bell Electric was sought and made pursuant to rules 25.15 and 52.9 of the English Civil Procedure Rules and in fact related to security for costs of an appeal. Reliance on Bell Electric , therefore, still brings the applicant back to the CPR dealing with applications for security for costs on appeal, which rules Mrs. Small-Davis avoided. The judgment of the English Court of Appeal in Bell Electric does not therefore take the applicant out of the water. We are also unable to see how the applicant can be assisted by Norgulf Holdings , which is relied upon principally for the dictum of Barrow JA (as he then was) that: “I am satisfied that the Supreme Court has both a statutory and an inherent jurisdiction to make an order for interim costs”. And so it does. But this cannot ipso facto be extended to mean that if jurisdiction to make an order cannot be found under applicable rules – in this case, rule 62. 17 of the CPR or rule 5 of the Anguilla (Appeals to the Privy Council) Order – that the court will simply exercise an inherent jurisdiction to make any order as to costs, including orders for security for costs specifically provided for in the earlier-mentioned rules. Moving outside of the rules and going into the inherent jurisdiction of the court must be based on some exceptional circumstances; otherwise, there would be no reason for the existence of the rules. The circumstances of this case are unexceptional. A party has brought a claim on which he does not succeed in the High Court or the Court of Appeal. Costs orders are made against him in both courts. He resides out of the jurisdiction and may have no assets in the jurisdiction. If you leave out the appeal to the Privy Council, which Mrs. Small-Davis says is not relevant to her application, then it would be for the party in whose favour the costs orders were made to seek enforcement of the judgments of the court awarding costs to him either under the enforcement procedures contained in the CPR or under other applicable legislation. If you put into the mix that the party against whom the costs orders were made has gotten leave to appeal to the Privy Council, then the judgment creditor gets his security for costs under the Privy Council Rules, which has already been granted. Either way, there is no exceptionality and no reason therefore for this Court to go outside of the rules and to make an order for security for costs based on the inherent jurisdiction of the court before which an application coincidentally lands. In any event, the Court of Appeal deals with appeals from orders of inferior courts and there is no appeal before this Court of a judgment or order of any inferior court. In the circumstances, the application for security for costs is dismissed, with costs to the respondent to the application, Mr. Dion Friedland, agreed at US$2,500.00. Case Name: Henry Owens III v Anguilla Partnership Enterprises Limited [AXAHCVAP 2017/0008] Date: Monday, 3 rd June 2019 Before: The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.] Appearances: Appellant: Ms. Tara Carter Respondent: Mr. John Carrington, Q.C. with him Mrs. Latoya Hobbs-Nurse Issues: Civil Appeal – Whether learned master erred in treating A.P.E. Inc and APEL as two separate legal entities then as one and the same – Whether learned master erred in finding that the appellant contracted APEL to construct a villa – Measure of Damages – Whether learned master erred in finding that the respondent had adequately proven the cost of completing the construction – Whether learned master erred in finding that there was sufficient nexus between the expenses borne by APEL and the appellant’s actions. Type of Order: N/A Result / Order: [Oral Delivery] It is hereby ordered that:

1.Both sides are to file and serve, within four (4) weeks, any authorities on the similar factual circumstances in which, as in the present matter, it is the purchaser who is in breach of the agreement; the vendor has expended monies and is left with an incomplete property; and how the courts have treated with the question of the measure of damages in those circumstances. Within four (4) weeks, both sides are to file and exchange authorities.

2.the parties shall put forward suggestions on the assumption that if the Court were to make an order for sale, if the Court were to get to that stage, what possible proposals or orders or directions the court should make in those circumstances. This should be submitted within four (4) weeks of today’s date.

3.The decision on this matter is reserved. Case Name:

[1]Estate of Dame Bernice Lake, QC (Deceased)

[2]Conch Bay Development Limited v The Attorney General of Anguilla [AXAHCVAP2016/0003] Date: Tuesday, 4 th June 2019 Before: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise Blenman, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.] Appearances: Appellants/Respondents: Mr. Kendrickson Kentish, with him Mr. Kerith Kentish Respondent/Applicant: Mr. Ivor Greene, Senior Crown Counsel of the Attorney General’s Chambers Issues: Application for Conditional Leave to appeal to Her Majesty in Council Type of Order: Oral Decision Result / Order: [Oral Delivery] It is hereby ordered that:

1.Conditional leave is hereby granted to the respondent/applicant, the Attorney General of Anguilla, to appeal to Her Majesty in Council from the decision of the Court of Appeal of the Eastern Caribbean Supreme Court delivered on 11 th December, 2018 on condition that: a. The applicant, within 90 days of the date hereof, enters into good and sufficient security in the sum of £500 for the due prosecution of the appeal, such security to consist of a deposit of the said amount at the court office. b. Within 90 days of the date hereof, the applicant do take the necessary steps for the purposes of procuring the preparation of the records, the settling of such records with the solicitors for the respondent to this application and the certification of the record by the Registrar of the Court of Appeal. c. The record shall be prepared in accordance with Rules 18 to 20 of the Judicial Committee (Appellate Jurisdiction) Rules Order 2009 and its Practice Directions 4.2.1 to 4.3.2 and Practice Direction 5 and shall be transmitted to the Registrar of the Judicial Committee of the Privy Council without delay where final permission to appeal has been granted. d. The applicant shall make an application to the court for final permission to appeal to Her Majesty in Council supported by the certificate of the Registrar that the security for costs ordered herein has been given within the time prescribed by this Order to the satisfaction of the Registrar. e. The costs of the application for conditional leave to appeal shall be costs in the appeal to Her Majesty in Council. Case Name:

[1]Estate of Dame Bernice Lake, QC (Deceased)

[2]Conch Bay Development Limited v The Attorney General of Anguilla [AXAHCVAP 2016/0003] Date: Tuesday, 4 th June 2019 Before: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.] Appearances: Appellants/ Applicants: Mr. Kendrickson Kentish, with him Mr. Kerith Kentish Respondent/Respondent: Mr. Ivor Greene, Senior Crown Counsel of the Attorney General’s Chambers Issues: Application for Conditional Leave to appeal to Her Majesty in Council Type of Order: Oral Decision Result / Order: [Oral Delivery] It is hereby ordered that: Conditional leave is hereby granted to the appellants/applicants, Estate of Dame Bernice Lake, QC, (deceased) and Conch Bay Development Limited, to appeal to Her Majesty in Council from the decision of the Court of Appeal of the Eastern Caribbean Supreme Court, delivered on 11 th December, 2018 on condition that: 1) The applicants, within 90 days of the date hereof, do enter into good and sufficient security in the sum of £500 for the due prosecution of the appeal, such security to consist of a deposit of the said amount at the court office. 2) Within 90 days of the date hereof, the applicants do take the necessary steps for the purposes of procuring the preparation of the records, the settling of such records with the solicitors for the respondent to this application and the certification of the record by the Registrar of the Court of Appeal. 3) The record shall be prepared in accordance with Rules 18 to 20 of the Judicial Committee (Appellate Jurisdiction) Rules Order 2009 and its Practice Directions 4.2.1 to 4.3.2 and Practice Direction 5 and shall be transmitted to the Registrar of the Judicial Committee of the Privy Council without delay where final permission to appeal has been granted. 4) The applicants shall make an application to the court for final permission to appeal to Her Majesty in Council supported by the certificate of the Registrar that the security for costs ordered herein has been given within the time prescribed by this Order to the satisfaction of the Registrar. 5) The costs of the application for conditional leave to appeal shall be costs in the appeal to Her Majesty in Council. Case Name: Carl Webster v Historic Beacon Point Anguilla Ltd. et al [AXAHCVAP2019/0001] Date: Tuesday, 4 th June 2019 Before: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Devin Hodge Respondent: Ms. Paulette Harrigan Issues: Application for Leave to Appeal – Whether the appellant has a realistic prospect of success – Whether there are other compelling reasons why the appeal should be heard – Application for stay of proceedings Type of Order: Oral Decision Result / Order: [Oral Delivery] It is hereby ordered that:

1.With the leave of the Court, the application for leave to appeal is hereby withdrawn.

2.The application having been withdrawn, there is no need to stay the proceedings and accordingly that application is hereby dismissed with costs agreed in the sum of US$500.00 to the respondent as agreed to be paid within fourteen (14) days of today’s date. Reason: The application was withdrawn. Case Name: Mr. Rocklyn Maynard v

[1]Attorney General of Anguilla

[2]Jason Hodge [AXAHCVAP2018/0009] Date: Tuesday, 4 th June 2019 Before: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Devin Hodge Respondents: Mr. Ivor Greene, Senior Crown Counsel of the Attorney General’s Chambers for the first respondent Issues: Civil Appeal – Vicarious Liability – Whether Crown can be held vicariously liable for actions of its employee – “Close connection” test – Whether learned trial judge failed to apply the correct legal test for the determination of issue of vicarious liability – Whether learned trial judge failed to make an evaluative judgment having regard to the circumstances – Whether judge failed to properly consider interactions between parties as a continuous chain of events Type of Order: Oral decision. Result / Order: [Oral Delivery] It is hereby ordered that:

1.The appeal is allowed and the judgment of the learned trial judge is set aside and the matter is remitted to the court below for a trial on the issue of vicarious liability and to determine the quantum of damages to be paid to the appellant by whichever party found to be liable on the basis of vicarious liability or otherwise.

2.There shall be no order as to costs. Reason: The Court has considered the issues raised in this appeal and noted that the issue of vicarious liability is a fact sensitive exercise. Accordingly, the determination of this issue ought to have proceeded to trial and this is so unless the parties had agreed all facts in respect of which the learned trial judge would have regard only in determining whether the first respondent was vicariously liable. As the matter turned out, there were factual issues in contention which were not resolved by a testing of evidence and indeed the learned judge based certain findings on an earlier statement of the claimant/appellant which was not part of the claimant’s witness statement. All these compounded the irregularities which occurred in the procedure adopted for the determination of the issue without a trial. This Court is in no better position to decide on the question as to the correctness or otherwise of the learned judge’s determination on the issue of vicarious liability based on the procedure adopted. Accordingly, the Court is constrained to allow the appeal and to order that the judgment of the learned trial judge be set aside and the matter be remitted to the court below for a trial on the issue of vicarious liability, and to determine the question of damages to be paid to the appellant by whichever party found to be liable on the basis of vicarious liability or otherwise. In the circumstances, there shall be no order as to costs. Case Name: National Commercial Bank of Anguilla Limited v Satay Limited et al [AXAHCVAP2017/0006] Date: Wednesday, 5 th June 2019 Before: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.] Appearances: Appellant: Mr. William Hare, with him Mr. J. Alex Richardson Respondent: Ms. Tara Carter holding for Mr. Harry Wiggin for the 1 st respondent Issues: Interlocutory Appeal – Joinder of parties – Rule

19.2(3) of the Civil Procedure Rules 2000 – Whether learned judge erred in granting leave to intervene – Norwich Pharmacal Order – Right of appellant to participate in any proceeding which seeks to extend the ambit of disclosure of Agreement beyond what is permitted by disclosure order Type of Order: Oral Judgment Result / Order: [Oral Delivery] It is hereby ordered that:

1.The appeal is allowed. The order of the learned judge made on 2 nd June 2017 is hereby set aside.

2.The appellant is hereby joined to the proceedings below being in the nature of Norwich Pharmacal proceedings and is joined pursuant to CPR 19.2 (3).

3.All documents filed in the said proceedings be served on the appellant by the respondents within 14 days, by Friday, 21 st June 2019.

4.The costs of this appeal shall be costs in the court below to abide the determination of the application. Case Name: Ruiz Phillip-Thomas v The Commissioner of Police [AXAMCRAP2017/0002] Date: Wednesday, 5 th June 2019 Before: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Ruiz Phillip-Thomas in person Respondent: Mrs. Nakishma Rogers-Hull, Crown Counsel of the Attorney General’s Chambers Issues: Criminal Appeal – Appeal against conviction – Apparent bias – Whether learned magistrate should have recused himself in the absence of recusal application – Whether learned magistrate erred in law and was unreasonable in the assessment of the evidence – Whether learned magistrate wrongly adopted evidence of witnesses whose testimonies were also discounted when other related charges were dismissed Type of Order: Oral Judgment Result / Order: It is hereby ordered that: The appeal is dismissed. Reason: The appellant herein relies on this appeal on the ground of bias only, having abandoned his other grounds of appeal. The court notes that the allegations of bias were not matters which were addressed in the court below as no evidence of an application of recusal of the learned magistrate on the ground of bias appears on the record, neither has any evidence that the issue of bias was canvassed at the commencement of the proceedings or during the proceedings below being put before this Court. This is not an issue therefore or ground which the Court can entertain at this level for the first time and without any evidentiary foundation whatsoever. Accordingly, the appeal herein is dismissed. Case Name: Glory Trading Holding Ltd. v

[1]Global Skynet International Ltd.

[2]Alexander Bloch [AXAHCVAP2018/0012] Date: Wednesday, 5 th June 2019 Before: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise Blenman, Justice of Appeal The Hon. Mr. Paul Webster, Q.C. Justice of Appeal (Ag) Appearances: Appellant: Ms. Tara Carter, with her Ms. Kristy Richardson Respondents: Ms. Jean Dyer Issues: Civil Appeal – Share Purchase Agreement – Interpretation of Share Purchase Agreement – Ratifications of actions of director – Whether Share Purchase Agreement intended to transfer all legal and beneficial ownership in Skynet – Whether Share Purchase Agreement was an agreement to sell legal and beneficial ownership of Skynet Type of Order: N/A Result/ Order: [Oral Delivery] It is hereby ordered that: The decision is reserved.