February 26th – March 2nd, 2007

COURT OF APPEAL SITTING Saint Lucia Monday, 26th February, 2007 to Friday, 2nd March, 2007 Monday, 26th February, 2007 Coram: His Lordship, the Hon. Mr. Michael Gordon, QC - President His Lordship, the Hon. Mr. Denys Barrow, SC - Justice of Appeal His Lordship, the Hon. Mr. Hugh A. Rawlins - Justice of Appeal Judgment Delivered Java Lawrence v The Director of Public Prosecutions Criminal Appeal No.1 of 2005 Saint Christopher & Nevis Appearances: Appellant Mrs. Victoria Charles Clarke DPP holding for DPP of Saint Christopher & Nevis Respondent Ms. Samantha Charles holding for Dr. Henry Browne Issue: Judgment delivered Result: Appeal Dismissed Reason: None of the grounds succeed. The court found that at the end of the prosecutions case the jury had a classic jury question to answer, that is, was the witness telling the truth or not, and that it would have been wrong for the trial judge to withdraw that question from the jury, therefore, that ground of appeal fails. The evidence was such that it could sustain the verdict contrary to the contentions of the appellant, and the court did not find that the summation contained grave errors or was inadequate in its directions on crucial aspects of the law. The judge’s summation was fair and balanced. Application/Motion Sylvina Louisen v Joachim Rodney Jacob Civil Appeal No.17 of 2004 Appearances: Appellant: Mrs. Edith Petra Nelson Respondent: Mr. Dexter Theodore Issue: Application to appeal to Her Majesty in Council – The Appellant has not served the Respondent the notice of Appeal and the Respondent quotes from authorities that unless this is done with 21 days it is too late. The Respondent must not only file the notice but they must also serve the notice of the other side. Result: Matter stood down to Wednesday 28th 2007. Reason: To allow the parties to furnish the court with authorities in support of argument. Dr. Richardson St. Rose v Dr. David Carol Bristol Civil Appeal No.16 of 2005 Appearances: Appellant: Mr. Al Elliott holding papers for Mr. Alberton Richelieu Respondent: Mr. James Bristol Issues: Motion for Final Leave to Appeal to Her Majesty in Council Result: Matter stood down until Wednesday 28th February 2007. Reason: To allow service of affidavit in reply to the application Jn Marie & Sons v Jamie St. Louis Civil Appeal No.14 of 2006 Appearances: Appellant: Mr. Mark Maragh Respondent: Mr. Horace Fraser Issue: Application to discharge order of single judge Result: Matter stood down until Wednesday. Gordon JA to recuse himself. Counsel to file their skeleton arguments Reason: Great Northern Insurance (St. Lucia) Company v Jenny Fevrier et al Civil Appeal No.29 of 2006 Appearances: Appellant: Mr. Bota McNamara Respondent: Mr. Al Elliott Issue: Application to discharge order of single judge Result: Application dismissed Reason: Applicant has withdrawn application High Court Criminal Appeals Victor Paul v The Queen Criminal Appeal No.6 of 2003 Appearances: Appellant: In person Respondent: DPP Issue: Appeal against conviction of unlawful carnal knowledge Result: Appeal dismissed Reason: Appellant wishes to withdraw appeal Peter Solomon v The Queen [Criminal Appeal No.4 of 2005] Appearances: Appellant: Mrs. Wauneen Louis Harris Respondent: Mrs. Victoria Charles Clarke DPP and with her Ms. Vernessa Jn Baptiste Issue: Appeal against conviction and sentence for murder – Learned trial judge misdirected the jury as to the law and the case for the defence was not properly put to the jury – The intention of the appellant at the time of the commission of the offence must have been to kill.Appeal against sentence - The punishment was excessive and contrary to law and the court failed to have due regard to the appellant’s youth as he seemed to have been focusing on retribution and deterrence Result: Decision reserved Reason: The court will take time to consider. Urban St. Brice v The Queen Criminal Appeal No.4 of 2006 Appearances: Appellant: Mr. Marcus Foster Respondent: Ms. Charon Gardener Issue: Appeal against conviction for murder Result: Matter traversed to the next sitting of the court Reason: Counsel has not had time to prepare skeleton arguments. Curvin J. Isaie v The Queen Criminal Appeal No.6 of 2006 Appearances: Appellant Mr. Sean Innocent Respondent Mrs. Victoria Charles Clarke DPP Issue: Appeal against conviction for murder Result: Matter traversed to the next sitting Reason: Transcripts of proceedings are not yet ready. Johnson Thomas v. The Queen Criminal Appeal No.7 of 2006 Appearances: Appellant: Mr. Sean Innocent Respondent: Mrs. Victoria Charles Clarke DPP and with her Ms. Vernessa Jn. Baptiste Issues: Appeal against conviction for manslaughter Whether the trial judge failed to relate the facts in this case to the law of self-defence in his directions to the jury – and instead went into a discussion on self defence. Whether the judge did not analyse the relevant evidence in support of self-defence for the jury but left them on their own. The appellant contended there is a statutory obligation to leave an alternative verdict open to the jury but there are certain cases when he shouldn’t and the appellant feels that this is one of them – proper procedure was not followed for accepting majority verdict of the jury The appellant also contended a good character direction was fitting in the circumstances and was not given to the jury by the trial judge Appeal against sentence Whether wrong factual basis was adopted for sentencing and did not reflect the the facts on which the conviction of manslaughter was based. Result: Decision reserved Reason: The court will take time to consider Tuesday, 27th February, 2007 Coram: His Lordship the Hon. Mr. Brian Alleyne SC Chief Justice (Ag) His Lordship the Hon. Mr. Michael Gordon QC Justice of Appeal His Lordship the Hon. Mr. Hugh A. Rawlins Justice of Appeal High Court Civil Appeals Jean Baptiste Petit Frere aka Jn Baptiste Montoute v Catherine Paul Civil Appeal No.5 of 2004 Appearances: Appellant: Edith Petra Jeffrey Nelson and with her Esther Greene Ernest Respondent: Mr. Winston Hinkson Issues: Does section 98 of the Land Registration Act allow for rectification of the Land Registrer only in cases of first registration of title made by mistake or does it extend to registration obtained by fraud in as well? Are the court’s hands tied so that it must allow the fraudulent registration to stand or can the court allow for rectification of the register? What type of order can the court make in this situation –

1.cancel registration of respondent?

2.Land be put in name of crown provisionally allowing both sides to make claim to the land? Result: Appeal allowed. Registration set aside. Costs awarded at 2/3 the amount awarded in the court below. Appellant to draw up terms of order to include amount of sale to be held on trust for rightful owner. Reason: Robertina Regis v Alpheus George Civil Appeal No.6 of 2004 Appearances: Appellant: Mrs. Wauneen Louis Harris Respondent: No appearance Issues: Result: Matter traversed to the next sitting of the court Reason: Court cannot verify if the respondent was served with notice of the sitting and he Counsel for the appellant confirms that he was not served with skeleton arguments. Harris Stephen et al v Agatha Sonson Civil Appeal No.26 of 2004 Appearances: Appellant: Mrs. Wauneen Louis Harris Respondent: Mr. Hilford Deterville QC and with him Ms. Samantha Charles Issues: Appeal against decision of trial judge to order the appellant to surrender possession of the property upon which they reside. Judge erred in dismissing counterclaim that the 2nd appellant enjoyed overriding interest under section 128 of Land Registration Act Respondent purchased property in 1990 but the Appellant had been in occupation for almost 30 years – does Respondent purchase subject to the right of the appellant notwithstanding that the appellants right is not noted on the land register? Application of section 28 of the Land Registration Act and section 394 of the Code – Articles No evidence adduced in the trial to grant injunctive relief to the Respondent – were the appellants trespassers or tenants at sufferance? If trespassers then the notice if valid if tenants then the notice to quit is invalid Was the respondent a bonafide purchaser for value without notice as they knew that the appellant was in occupation? Result: Judgment Reserved Reason: Court will take time to consider Wednesday, 28th February, 2007 Coram: His Lordship, the Hon. Mr. Brian Alleyne, SC - Chief Justice (Ag.) His Lordship, the Hon. Mr. Denys Barrow, SC - Justice of Appeal His Lordship, the Hon. Mr. Hugh A. Rawlins - Justice of Appeal v The Queen Criminal Appeal No. of 2007 Appearances: Appellant: Ms. Charon Gardner holding papers for Mrs. Victoria Charles Clarke DPP Respondent: No appearance Issue: Application to revoke the bail granted by High Court Result: Matter stood down Reason: DPP and counsel for respondent are on their way. Dr. Richardson St. Rose v Dr. David Carol Bristol Civil Appeal No.16 of 2005 Appearances: Appellant: Mr. Al Elliott holding papers for Mr. Alberton Richlieu Respondent: Mr. James Bristol Issues: Motion for Final Leave to Appeal to Her Majesty in Council – Application to dismiss the application for final leave as all the conditions have not been fulfilled for the granting of final leave as there has been delay in the filing and settling of the record – applicant is not interested in prosecuting this appeal. Result: Final Leave granted. Reason: There has been compliance with all the requirements for granting final leave – the delay concerned a matter of form and not substance in the Chief Registrar asking for the number of bundles to be reduced. Nicholas Lansiquot v Ignatius Leon et al Civil Appeal No. 29 of 2005 Appearances: Appellant: Mr. Dexter Theodore Respondent: Mr. Colin Foster Issues: Appeal against decision of high court judge holding that respondents held a licence coupled with an equity within the meaning of Inwards v Baker (an English case) – on that basis the respondents enjoyed an overriding interest over the parcel and were entitled to be registered as owners of the part of the land that they occupied after it was partitioned from the rest of the property. Judge erred as the concept of licencee is a concept alien to the laws of St. Lucia, the closet thing to that being what the Civil Code describes as a right of use under Article 437 of Civil Code. Right of use – right to enjoy a thing belonging to another and take fruits thereof but only to the extent of the requirements of the user and to his family. Even if there is a concept of licencee – the court could not so conclude based on the facts of this case the situation was not that of a licencee. - Person did not incur expenditure or act to his detriment – did not act on the belief that he owned rights to the property and justify expenditure and thought he would have gained an interest. Cabral v Alice King Civil Appeal 4 of 94 of Belize. Was the belief encouraged or created by the owner or his predecessor in title. Article 2067 provide that those who hold under another or under acknowledgement that they hold for another can never prescribe. Under land registration act – acts at sufferance cannot be a basis of possession or prescription. Does a granting of right to live on land affect title to the land? Respondent argues promissory estoppel or constructive trust – parties relied on the promise of the appellants predecessor to their detriment? Their detriment being the toiling of the land cultivating the land and building homes on the land Section 1 of old evidence Act allows the reception of hearsay evidence and applied at the time of the matter was heard Result: Decision reserved Reason: Court will take time to consider Dwight Dookie v The Queen Criminal Appeal No. of 2007 Appearances: Appellant: Mrs. Victoria Charles Clarke DPP and Ms. Charon Gardner with her Respondent: Mr. Marius Wilson Issue: Application to revoke the bail granted by High Court – application made under section 593 (4) and (5) and Rule #58 (7) and (8) Court of Appeal Rules 1968 Did the trial judge have jurisdiction to grant bail pending appeal and even if she did have jurisdiction she did not address her mind to the exceptional circumstances required when granting bail in these types of circumstances Result: Application granted – order granting bail is revoked. Reason: Vaughn Lewis v Kenny Anthony Civil Appeal No.2 of 2006 Appearances: Appellant: Sir Richard Cheltenham and Mr. Kenneth Monplasir QC Respondent: Mr. Anthony Astaphan SC and with him Mr. Dexter Theodore Issues: Appeal against the meaning given to words used in a speech which were held to have a defamatory meaning by the trial judge. Literal interpretation and meaning given to words were misapplied and resulted in a meaning which was unnatural and unreasonable Was appellant entitled to the defence of fair comment? The quantum is too large and the finding was wrong that the award should be based on exemplary or aggravated damages Result: Decision reserved Reason: The court will take time to consider Thursday, 1st March, 2007 Coram: His Lordship the Hon. Mr. Brian Alleyne SC Chief Justice (Ag) His Lordship the Hon. Mr. Denys Barrow SC Justice of Appeal His Lordship the Hon. Mr. Hugh A. Rawlins Justice of Appeal Jn Marie & Sons v Jamie St. Louis Civil Appeal No.14 of 2006 Appearances: Appellant: Mr. Mark Maragh Respondent: Mr. Horace Fraser Issue: Application to discharge order of single judge Was the order made for summary judgment a final or interlocutory order? Was the decision arrived at based upon the merits of the case was it only an application which resulted in the end of the action without deciding the merits of the case Is this an exception to the rule on the nature of the final order given the decision in the Remy case? - Can a decision without hearing the merits of the case give rise to res judicata thus making this case one that is a final decision although the merits of the case have not been discussed? Result: Decision reserved Reason: The court will take time to consider Winmark Ltd. v National Insurance Corporation Civil Appeal No.7 of 2006 Appearances: Appellant: Mr. Geoffrey Du Boulay and with him Mrs. Cheryl Goddard Dorville Respondent: Mrs. Ann Kadie St. Rose Albertini and with her Mrs. Raquel Willie Trotman Issues: Appeal against decision that National Insurance Corporation is to be paid before other creditors Does section 74 of the NIC act allow contributions owed to the corporation to outrank other debts secured before the contributions/debts became owing to the National Insurance Corporation Are NIC contributions within the categories mentioned in the Constitution which are considered to rank first in preference to other secured debts registered before the contributions became owing Result: Decision reserved Reason: The Court will take time to consider Judgment Delivered Hugh Wildman v The Judicial & Legal Services Commission Civil Appeal No. of 2005 Grenada Appearances: Appellant Mr. Alvin St. Clair holding for the Attorney General of Grenada Respondent Ms. Dexter Theodore holding for Mr. James Bristol Issue: Judgment delivered Result: Appeal Dismissed Reason: There was no evidence of bias found on the part of the trial judge dealing with the review of the decision of the Commission. Up to the point of the hearing and the decision-making there was no procedural unfairness that would entitle this court to interfere with the decision of the Judicial and Legal Services Commission. The appellant was given an oral hearing, he knew in advance the case he had to meet and his appointment was considered by a tribunal whose impartiality has not been challenged. The court is of the view that the particular circumstances of this case were not so extra-ordinary as to cause the Commission to depart from a practice of over 35 years and give reasons for its decision. However, once the matter became the subject matter of litigation, the Commission was bound to disclose their reasons for the decision it took. This they did. The function of the court in judicial review is not to act as an appellate forum from the body whose decision is being challenged. If the process was fair and the decision not deviant, then the order sought under the judicial review must be refused. Sylvina Louisen v Joachim Rodney Jacob Civil Appeal No.17 of 2004 Appearances: Appellant: Mrs. Edith Petra Nelson Respondent: Mr. Dexter Theodore Issue: Application to appeal to Her Majesty in Council – The Appellant has not served the Respondent the notice of Appeal and the Respondent quotes from authorities that unless this is done with 21 days it is too late. The Respondent must not only file the notice but they must also serve the notice of the other side. Result: Application for conditional leave granted. Usual conditions apply deposit of 500 pounds, steps taken to settle the record within 90 days and thereafter the application for final leave must be made. Application of respondent is dismissed. Reason: Counter application of respondent is dismissed. No authority provided for the arguments that he proposes. Patrick Morille v Paul Pierre et al Civil Appeal No.12 of 2006 Appearances: Appellant: Mr. Horace Fraser Respondent: Mrs. Lydia Faisal Issues: Trial judge applied the wrong principles and used the wrong cases. Trial judge misdirected herself when dealing with the matter as if it were adducing fresh evidence when there was in fact no application before the court. Trial judge applied wrong legal principles to the appellants application without finding any factual reasons for so doing and therefore failed to properly exercise her discretion. There was no hearing of any of the applications. The appellant cannot therefore be said to be reopening his case on another issue which was available to him at the time when the matter was heard. Respondents contend that appeal is an abuse of the process of the court and should be dismissed. Result: Appeal allowed. Reason: Prejudice suffered by Respondent pales in significance to that suffered by the appellant Simon Francis et al v Anthony Barnard Civil Appeal No.22 of 2006 Appearances: Appellant: Mr. Colin Foster Respondent: Mr. Alvin St. Clair Issues: Result: Matter traversed to the next sitting of the court.

Reason:

COURT OF APPEAL SITTING Saint Lucia Monday, 26th February, 2007 to Friday, 2nd March, 2007