23rd – 27th March 2015

Court of Appeal Sitting Anguilla 23 rd – 27 th March 2015 APPLICATIONS AND APPEALS Case Name: IN THE MATTER of the Registered Land Act, Revised Statues of Anguilla, Chapter R30, section 147 AND IN THE MATTER of an Appeal by Collins Richardson, Carolyn Richardson (Administrator of the Estate of John Samuel Richardson); Boswell Richardson; Calvin Richardson; Leslie Richardson as Administrator of the Estate of Evangeline Hughes; Estell Hughes as Administrator of the Estate of Samuel Benjamin Richardson; Calvin Richardson as Administrator of the Estate of Victor Richardson; Robert Austin Richardson as Administrator of the Estate of Eneria Richardson; Royston Richardson as Administrator of the Estate of James Richardson; Oliver MacDonna as Administrator of Jane Rebecca Richardson and Sybil Ryhmer as the Administrator of the Estate of Florence Richardson against a decision of the Registrar of Lands dated 28 th September 2010 and 7 th July 2011. [AXAHCVAP2013/0008] Date: Monday, 23 rd March 2015 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mr. Davidson Kelvin Baptiste, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellants / Applicants: Mr. Clyde Williams, with him, Ms. Ayana Tyrell, instructed by Alex Richardson & Associates Respondents: Mr. Kerith Kentish, instructed by Joyce Kentish & Associates, for the first, second, third, fourth and fifth respondents No appearance for the sixth respondent Mr. John Wigley of Wigley’s Chambers instructed by Chancery Lane Chambers, for the seventh respondent Mr. Ivor Greene, Senior Crown Counsel, for the eighth and ninth respondent Issues: Application to clarify cost order under rule 62.15 of the Civil Procedure Rules 2000 Result / Order: [Oral delivery] The application is dismissed. Costs to the first to fifth respondents in the sum of EC$1,000.00 and to the seventh respondent fixed in the sum of EC$1000.00. There is no costs order in respect of the Attorney General. Costs hereby ordered shall be paid within 30 days. Reason: In the application before the Court, the appellants sought a clarification of the costs order made by the Court of Appeal on 25 th June 2014, wherein the Court, in essence, allowed the appeal, remitted the matter to the court below to proceed to trial on its merits and ordered costs to the appellants to be assessed, if not agreed, within 21 days. The order was perfected on 4 th July 2014 by the issuance of a certificate of result of the appeal. The Court noted that the appellant’s application for clarification of the costs order was said to be made pursuant to rule 62.15 of the Civil Procedure Rules 2000 (“CPR 2000”) which deals with procedural applications in an appeal. The Court observed that the application was not brought pursuant to CPR 42.10, which gives the court power to correct an order where there has been a slip or typographical error, commonly referred to as the slip rule. The Court was of the opinion that it was clear that the application would not satisfy the requirements under the slip rule and referred to the decision of the Court in in Saint Christopher Club Ltd. v. Saint Christopher Club Condominiums et al SKBHCVAP2007/0004, an appeal out of the State of Saint Christopher and Nevis. The Court explained that in that appeal, Rawlins JA ruled that after an order is perfected or an appeal against that order is filed, the slip rule may only be used to correct genuine clerical errors or accidental slips or omissions in the order. Having considered the Saint Christopher Club decision, the Court turned its focus back to the present appeal. The Court noted that what the appellants contended in the application before the Court was that the order of the Court made on 25 th July 2014, was ambiguous and that it should be construed as an order which also orders costs of the application in the court below on the basis that the general rule is that costs follows the event and that in as much as the costs order in the court below was set aside, then the order of the Court of Appeal must be taken to mean that the costs awarded to the appellants are inclusive of the costs in the court below. The Court further noted that the appellants in their application prayed and sought an order as to costs on the appeal and also an order as to costs in the court below. However, on the reading of the transcript of the proceedings and on the face of the order of the Court itself, the Court found that it was abundantly clear that nowhere did the Court address its mind to the Costs of the proceedings in respect of the application in the court below. Accordingly, the Court was satisfied that the order made by the Court of Appeal on 25 th June 2014 was not ambiguous but was clear on its face as relating to the costs of the appeal and not with respect to any other proceedings. Consequently, the Court found that this was not an order which the Court could revisit and now make a different order so as to enlarge or vary the order made by the Court and thus have the same extended to the costs of the proceedings in the court below. The Court was of the view that this was not an accidental slip or omission or one of a typographical error as stated in the principle in Saint. Christopher Club . The Court was of the further view that even if in hindsight it considered that a different form of order ought to have been made, it could not have second thoughts about it and make a different order. In the circumstances, the Court found that if it were that counsel for the appellants assumed the order meant something different than it actually meant, this did not permit the appellants to now enlarge the order to accord to their understanding of what the order ought to have been. Case Name: Lynwood Bell v Malcolm Hope Ross Donald Curtis [AXAHCVAP2012/0005] Date: Monday, 23 rd March 2015 Coram: The Hon. Mr. Davidson Kelvin Baptiste, Justice of Appeal The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant / Respondent: Ms. Shaniel Hunter instructed by Chancery Lane Chambers Respondents / Applicants: Mr. Gerhard Wallbank, with him, Ms. Rayana Dowden instructed by WEBSTER Issues: Application for directions pursuant to rule 26.1(k) and (m) of the Civil Procedure Rules 2000 – Whether the sum payable to the appellant in satisfaction of his 50% shareholding in Counsel Ltd as of 19 th March 2004 is the figure stated by the valuer of US$170,780.00 or another figure Result / Order: [Oral delivery] The applicants’ submissions are deemed properly filed. Costs to the respondent in the sum of EC$500.00. The applicants are to pay Mr. Lynwood Bell the sum of US$202,500.00 which represents 50% of the value of the shares. The applicants to pay costs of EC$1,000.00 to the respondents within 30 days. Reason: The Court noted that the parties had agreed to the terms of a consent order of the Court which gave directions concerning the procedure to be adopted for the professional valuation of shares in Counsel Ltd in accordance with the judgment of George-Creque J dated 26 th January 2011. The Court further noted that the scope of the valuer’s function was quite clear under the terms of the consent order. Paragraph 2 of the order provided for the appointment of Mr. Claudel Romney (“the valuer”) for the purposes of conducting a forensic examination of the books, records and documents in the determination of the true value of the shares of Counsel Ltd. as of 19 th March 2004 and having regard to the findings made in the judgment of Justice George-Creque J dated 26 th January 2011. Pursuant to the clear terms provided for by the consent order, the Court found that the valuer had determined the value of the shares as of 19 th March 2004 to be US$405,000.00. The Court was of the view that while it was permissible for the valuer to take into account the receivables in valuing the shares, it was out of his remit to seek to indicate what sum was to be paid in view of the fact that the consent order clearly indicated that it was 50% of the value of the shares. Consequently, in accordance with the consent order and the valuation, the Court confirmed that the applicants are to pay Mr. Lynwood Bell the sum of US$202,500.00 which represents 50% of the value of the shares in Counsel Ltd. Case Name: Sylvan Brooks v Regina [AXAHCRAP2007/0002] Date: Tuesday, 24 th March 2015 Coram: The Hon. Mr. Davidson Kelvin Baptiste, Justice of Appeal The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: In person Respondent: Mr. Ivor Greene, Senior Crown Counsel Issues: Criminal Appeal against sentence of 25 years for attempted murder; 25 years for robbery; 14 years for possession of firearm without firearm user’s licence; and 14 years for possession of ammunition for a firearm with firearm user’s licence all of which to run concurrently – Whether sentence is excessive- Whether sentence imposed by learned trial judge was wrong in principle and unfair – Whether learned judge should have considered a Social Welfare Report on the background and circumstances of the appellant prior to sentencing – Whether the sentencing judge properly conducted or conducted at all a weighing exercise concerning any mitigating or aggravating factors – Warrant of committal omitted that sentence on count 3 should run concurrently Result / Order: [Oral delivery] The appeal against sentence is allowed. The sentence for: attempted murder is varied from 25 years to 15 years in prison; the sentence for robbery is varied from 25 years to 12 years in prison; the sentence for possession of a firearm is varied from 14 years to 10 years in prison and the sentence for possession of ammunition is varied from 14 years to 8 years in prison. All sentences are to run concurrently. Time spent by the appellant on remand shall be taken into account. Reason: The Court noted that the Crown had quite professionally conceded the appeal and that the Crown had indicated suggestions for the Court’s consideration for the appropriate sentences. The Court also noted that the Crown had also quite professionally conceded that the learned trial judge had acted arbitrarily in the imposition of sentences on the appellant. Based on the concessions by the Crown and based on the review of the transcript of the proceedings and the appellant’s grounds of appeal, the Court was of the view that the appellant’s appeal against sentence ought to be allowed. Case Name: Richard Vento Lana Vento Gail Vento Renee Vento Nicole Mollison First Nevis Trust Company Ltd (as trustee of Much Love International Dynasty Trust, Vita International Dynasty Trust, Loki International Dynasty Trust and Founders International DV Dynasty Trust) and Keithley Lake Fidelity Insurance Co, Ltd Alliance Royalties, LLC Alliance Royalties, Inc Westminister, Hope & Turnberry, Ltd Waterberry, Ltd [AXAHCVAP2014/0004] Date: Tuesday, 24 th March 2015 Coram: The Hon. Mr. Davidson Kelvin Baptiste, Justice of Appeal The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellants: Mr. Gerhard Wallbank, with him, Ms. Rayana Dowden instructed by WEBSTER Respondents: Mr. D. Michael Bourne, with him, Ms. Dana Campbell instructed by Keithley Lake & Associates Issues: Civil Appeal- Registration of foreign judgment- Whether section 66 of the Arbitration Act 1996 of England and Wales, an Act which for the most part otherwise applies in Anguilla by virtue of the provisions of the Arbitration Act, Revised Statutes of Anguilla Cap. A105, is a substantive provisions on the enforcement of foreign awards Result / Order [Oral delivery] Judgment is reserved. Case Name: Caribbean Commercial Bank (Anguilla) Limited and Starry Benjamin [AXAHCVAP2014/0009] Date: Wednesday, 25 th March 2015 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: Mr. J. Emile Ferdinand, QC, with him, Ms. Keisha Spence and Ms. Navine Fleming instructed by Libran Chambers Respondent: Ms. Tara Carter, with her, Mr. Kerith Kentish instructed by Joyce Kentish & Associates Issues: Civil appeal- Employment contract- Whether the respondent is to be paid compensation and gratuity in accordance with clause 16 of the employment contract together with all outstanding vacation pay and relocation expenses including a one way airline ticket to her place of residence calculable from 12 th August 2013 as stipulated in the contract – Whether there was an implied term into the respondent’s contract of employment that notwithstanding its provisions the respondent could be dismissed pursuant to Article 5B of the Eastern Caribbean Central Bank Agreement Act, Cap E5, Revised Statues of Anguilla Result / Order [Oral delivery] The appeal is dismissed. The respondent shall have her costs of this appeal as agreed between the parties within 21 days and failing agreement the costs on the prescribed basis fixed at 2/3 of the prescribed costs of the claim in the court below. The Court’s written reason for its decision will be given at a later date.