EASTERN CARIBBEAN SUPREME COURT

COURT OF APPEAL SITTING

VIDEOCONFERENCE

SAINT VINCENT AND THE GRENADINES

15^th – 18^th SEPTEMBER 2020

Case Name:		JUDGMENTS Henry Owens III v Anguilla Partnership Enterprises Limited [AXAHCVAP2017/0008] [Anguilla]

Date:		Tuesday, 15^th September, 2020

Coram for delivery of judgment:		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. Tara Carter

	Respondent:	Mr. John Carrington QC with Ms. Latoya Hobbs-Nurse,

Issues:		Civil appeal – Parties to a contract Privity of contract Assessment of damages following a default judgment – General damages awarded in accordance with pleadings and evidence – Standard of proof of special damages – Costs


Result / Order:		Held: allowing the appeal and setting aside the order of the master; awarding the respondent $250,000.00 as general damages, $100,381.00 as special damages and prescribed costs of the proceedings in the court below based on the reduced award of $350,381.00; and awarding to the appellant costs of the appeal at the rate of two-thirds of the amount awarded to the respondent in the court below as prescribed costs; that: 1. It was not open to Mr. Owens to raise issues of the lack of enforceability of the Agreement sat the assessment of damages hearing. The court is not required to re-open an application to set aside default judgment or a request for default judgment; and it would not be appropriate to go behind the default judgment or assess the merits of the pleadings in relation to the cause of action while the default judgment stands. The issue of the appellant’s liability was settled by the default judgment and the Agreements are not void for failure of consideration or otherwise. The parties intended to create legal relations and the Agreements, with the exception of the construction contract, are enforceable against the appellant. Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993 considered; Michael Laudat and another v Danny Ambo [2010] ECSCJ No. 329 applied. 2. The Construction Contract was between Mr. Owens and APE Inc, a separate legal entity. Therefore, despite the respondent pleading in its statement of claim that it entered into the Construction Contract with Mr. Owens, and despite the fact that the rules relating to pleadings and default judgments mean that this statement is deemed to be admitted by Mr. Owens, the evidence before the master could not, without more, support a finding that APE Inc was not a separate legal entity and that the respondent could claim the benefits under the Construction Contract. 3. The effect of the doctrine of privity of contract is that only persons who are parties to a contract can sue on it, and a stranger to a contract cannot take advantage of provisions of the contract even where it is clear from the contract that some provision in it was intended to benefit the third party. In the instant case, the respondent was not a party to the Construction Contract and therefore cannot seek to claim damages for itself under that contract. Scruttons Ltd v Midland Silicones Ltd. [1962] AC 446 applied; Verlin Crabbe v Kensley Wheatley and Inter Island Traders Limited [2008] ECSCJ No. 229 applied. 4. When conducting an assessment of damages, a claimant is entitled to only such damages as are pleaded and the claimant is bound by his or her pleading. The respondent, having pleaded a claim for general damages of $250,000.00 should not have been allowed to expand its claim to seek reliefs which were not pleaded. In the circumstances the master erred in allowing the respondent to pursue a claim for general damages for breach of the Construction Contract that was substantially different from the pleaded claim. Ian Charles v The Board of Governors of the H. Lavity Stoutt Community College [2011] ECSCJ No. 114 applied; Dr. Miranda Fellows v Carino Hamilton Development Company Limited NEVHCV2009/0125 (delivered 11^th August 2015, unreported) applied; Bertha Francis v First Caribbean International Bank (B’dos) Ltd. formerly CIBC Caribbean Ltd. [2008] ECSCJ No. 55 applied; Photo Production Ltd v Securicor Transport Ltd [1980] 1 All ER 556 considered. 5. Special damages are the amount of pecuniary loss that a claimant can prove to have followed the particular facts set out in its pleadings. The respondent’s pleaded claim for special damages of $760,000.00 did not meet the requirements for particularity in a claim for special damages as it represents the value of the partially constructed Unit, and not the expenses incurred in building it. The particulars of the expenditure were not pleaded and no supporting documents were adduced. The respondent instead invited the master to treat the expenditure as part of its claim for general damages which was unsustainable, as the respondent was not a party to the construction contract. The learned master was however entitled to find the pleaded and proven sums of $87,500.00 as cost to the claimant of obtaining financing to commence and continue construction on the defendant’s custom villa and the sum of $12,881.00 being reimbursement of the costs incurred for valuations after the claim was filed could be allowed as special damages as the evidence provided a sufficient nexus between these expenses and the actions of Mr. Owens. Chitty on Contracts (31^st edn., Volume 1, Sweet and Maxwell 2012) considered. 6. The quantum of the award of damages in the court below having been varied, prescribed costs in the court below will also be varied and calculated using the new damages award.


Case Name:		[1] Choo Loi Poi [2] Choo Liu Yue Xin v Donald Frederick [GDAHCVAP2016/0026] [Grenada]

Date:		Tuesday, 15^th September, 2020

Coram for delivery of judgment:		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:	Ms. Celia Edwards, QC with her, Mr. Deloni Edwards

	Respondent:	Mr. John Carrington QC with him, Ms. Winnifred Duncan Phillips

Issues:		Civil appeal − Contract law − Specific performance − Right-of-way − Part performance − Trespass − Damages − Whether there was a concluded agreement between the parties between November 2004 and January 2005 based on the offer contained in the letter of November 2004 and the acceptance of the cheque from Mrs. Brathwaite in January 2005 − Whether the parties made an agreement between 2005 and 2008 for the grant of reciprocal rights-of-way over their respective properties − The appellants’ liability for trespass and the quantum of damages



Result / Reasons:		Held: dismissing the appeal, affirming the orders of the learned trial judge and awarding the respondent costs on the appeal of $6,000.00, being two-thirds of the amount awarded in the court below, that: 1. There was no acceptance of the offer made to the appellants in the letter of 11^th November 2004 to bring about an agreement between the parties. The offer lapsed, having not been accepted by the 30^th November 2004 deadline, and the respondent’s acceptance of the settlement payment from Eastern Caribbean Cement Products Ltd. did not have the effect of extending the offer made to the appellants. Furthermore, the acceptance of the settlement payment did not amount to part performance since the act of part performance must relate to an existing agreement. The act that is claimed to bring about an agreement (acceptance of the payment) cannot also be part performance of the same agreement. Chitty on Contracts (31^st edn, 2012) Vol. 2, para. 96 considered. 2. The parties did not agree terms of a new agreement after January 2005for the grant of reciprocal rights-of-way over their respective properties. The appellants maintained throughout the High Court proceedings that the only concluded agreement was for them to be granted a right-of-way over the respondent’s Lot 2, and that during the negotiations between 2005 and 2008 the respondent tried to introduce a new term of reciprocal rights-of-way. There was no evidence to support a finding that the parties agreed to grant reciprocal rights-of-way over their respective properties. 3. Assuming, without finding, that the 2005 payment included damages for trespass, and having found that there is no agreement to grant a right-of-way over the small triangle on Lot 2, the trespass to Lot 2 would have re-started in January 2005 and continued up to the date when the judge made his award in May 2016. The judge awarded $10,000.00 for the several years of trespass which is a reasonable sum in the circumstances. There is no basis for this Court to interfere with the award.


Case Name:		Grain-Trans Limited v Ample Speed Limited [BVIHCMAP2019/0022] [Territory of the Virgin Islands]

Date:		Wednesday, 16^th September, 2020

Coram for delivery of judgment:		The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. Gerard St. C. Farara, Justice of Appeal [Ag.]

Appearances:
	Appellant:	Mr. Robert Nader

	Respondent:	Mr. Andrew Gilliland

Issues:		Interlocutory appeal – Forum non conveniens – Application for stay of proceedings pursuant to CPR 9.7 – Whether learned judge erred in exercise of discretion to refuse stay on grounds of forum non conveniens – Whether learned judge failed to give sufficient weight to relevant connecting factors – Whether learned judge erred in concluding that BVI was the more appropriate forum


Result / Order:		Held: dismissing the appeal, confirming the orders made by the learned judge, ordering that the respondent shall have its costs of the appeal to be assessed by a judge of the Commercial Court at not more than two-thirds of the costs below, if not agreed within 21 days, that: 1. When a defendant seeks a stay on grounds of forum non conveniens, the court must determine whether there is another available forum and whether that forum is more appropriate for the trial of the case. While the learned judge did not deal extensively with the expert evidence as to Ukrainian law and did not state, in precise language, that the appellant had failed to establish that Ukraine was an available forum, it is clear from the transcript that the judge considered matters relevant to and did, in essence, arrive at such a conclusion. The judge considered the nature of the Claim; that the Loan Agreement on its face had no discernable connection with Ukraine nor was it governed by the laws of Ukraine; that neither of the parties to the Loan Agreement were incorporated in Ukraine and, that the appellant did not conduct any 3 business or have a presence in Ukraine. These are all matters which go to the question of whether the appellant had shown that Ukraine was an available forum. Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 applied; Livingston Properties Equities Inc et al v JSC MCC Eurochem Livingston Properties Equities Inc et al v JSC MCC Eurochem [2018] ECSCJ No. 245, BVIHCMAP2016/0042-0046 (delivered 18^th September 2019) applied. 2. The conclusions reached in the expert report filed in support of the stay application were without any proper factual or legal basis, and lacking in cogency, and must therefore be rejected. It is clear that the Claim does not fall within any of the accepted categories of claims or cases under Ukrainian private international law for which Ukrainian courts would accept jurisdiction in proceedings involving a foreign element. In circumstances where there is no evidence that the Loan Agreement was executed, performed or breached in Ukraine, or that the appellant has a presence, office, business or representative in Ukraine or is registered to do business there, the appellant had failed to establish that Ukraine is an available forum for the trial and determination of the Claim, and the learned judge was correct in arriving at such a conclusion. 3. The connecting factors relied on by the appellant do not support the conclusion that the Claim has its closest connection to Ukraine. The appellant’s reliance on these connecting factors was either misplaced or unsupported by the evidence before the court. The learned judge was therefore correct in finding that the Claim had no real connection to Ukraine, that Ukraine was not the appropriate forum, and that the BVI, as the place of incorporation of the appellant, the borrower under the Loan Agreement, was the appropriate forum. Accordingly, even if the appellant had established that Ukraine was an available forum for the trial of the dispute under the Loan Agreement, the BVI, as the forum with jurisdiction as of right over the appellant, was the jurisdiction with which the dispute has its closest connection.


Case Name:		[1] Peter Touissaint [2] Terentia Toussaint-Carroll [3] The Heirs of Thelma Toussaint v Martine Johnson (Representative of the Estate of Peter Michael Barnard) [SLUHCVAP2018/0024] (Saint Lucia)

Date:		Wednesday, 16^th September, 2020

Coram for delivery of judgment:		The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.]

Appearances:
	Appellant:	Appellants in person

	Respondent:	Mr. Dexter Theodore QC and Ms. Sueanna Frederick

Issues:		Civil appeal – Principles of case management – Discretion of a judge in making case management orders on his/her own initiative – Striking out of a statement of claim – Discontinuance of a claim where interim injunction granted – Costs to be awarded on a discontinuance of a claim


Result / Reasons:		Held: dismissing the appeal; and summarily awarding costs to the respondent in the sum of two thousand dollars, that: 1. Part 25 of the Civil Procedure Rules 2000 requires the Court to actively manage cases. In so doing, a judge must identify the issues between the parties and ensure that: (a) those matters which could be settled are settled on terms that are fair to all parties; (b) those issues which could be resolved summarily are summarily disposed; (c) those issues which require a trial to resolve them are brought to trial expeditiously. In summary, at case management a judge is required to make orders to enable the parties to have a fair and expeditious resolution of their dispute. 2. A case management decision being the exercise of the judge’s discretion, appellate courts are very slow to interfere with such decisions and an appellant must cross a high threshold in order for the court to do so. If appellate courts were to readily interfere with case management decisions and exercise a discretion of their own, this would ultimately defeat the purpose of case management and create inordinate delays in the trial process. This is not to say that judges are not to exercise their discretion judiciously, or that an appellate court will not intervene when it is appropriate to do so. The limited circumstances when an appellate court would overturn a case management decision are when the judge erred in principle, took into account irrelevant matters, failed to take into account relevant matters or come to a decision that is so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge. Re TG (A Child) [2013] EWCA Civ 5 applied; Re AV (A Child) (Expert Report) [2020] EWCA Civ 346 applied. 3. The conjoined effect of rules 26.2 (2) and (3) of the Civil Procedure Rules 2000 is that where a judge proposes to make an order of his or her own initiative, the judge is required to give the party to be affected a reasonable opportunity to prepare to deal with the matter where necessary. The length of period would depend on the circumstances of the case and the overriding objective of enabling the court to deal with cases justly; the more complex the issue, the more time would be needed. The trial judge’s decision to strike out the document the appellant filed titled “Statement of Claim” in claim number SLUHCV2015/0295 was a straightforward decision which the appellants had reasonable opportunity to be heard on. The appellants were not parties to the claim at the time of filing the document, had subsequent to filing that document, filed a defence and counterclaim in the same matter and were given permission to amend their defence and counterclaim following the striking out. The decision therefore did not fall outside the generous ambit of discretion awarded to the trial judge. Re AV (A Child) [2020] EWCA Civ 346 applied; Rule 26.2 of the Civil Procedure Rules 2000 applied. 4. The learned trial judge identified and addressed the issue of the health of Mr. Barnard at paragraph seven of the Order. There was therefore no basis for the appellants’ contention that the judgment of the trial judge did not consider the issue of Mr. Barnard’s health. 5. There were no reasons advanced by the appellants which would support a departure from the general rule concerning costs to be awarded on a discontinuance and the method of quantification of such costs. Further, there has actually been no real discontinuance but a transfer of the substantive matters from one claim number to the next. The appellants were in effect 5 awarded three thousand three hundred and seventy-five dollars ($3,375.00) costs on the learned judge closing a case number in the court system due to an administrative error on the part of the court office. Rules 1.2 and 37.7 (1) of the Civil Procedure Rules 2000 applied. 6. Where an interim injunction was granted and the claim is subsequently discontinued prior to trial with the permission of the court, the party enjoined does not have an automatic right to damages. The judge has a discretion whether to order an inquiry as to damages. An order for an inquiry as to damages would only be made where it is determined that the injunction was wrongly granted. There was no need for the respondent to obtain permission to withdraw claim number SLUHCV2015/0295 neither was there any need for the learned judge to perform an inquiry into the damages arising out of the discharge of an injunction since the interim injunction was not discharged. The injunction and the claim still subsist in SLUHCV2015/0293. Rule 37.2 of the Civil Procedure Rules 2000 applied. Cheltenham and Gloucester Building Society v Ricketts [1993] 4 All ER 276 considered; Ansett Transport Industries (Operations) Pty Ltd v Halton, Interstate Parcel Express Co (Aust) Pty Ltd and Air Express Ltd (1979) 25 ALR 639 considered; Ushers Brewery Ltd. v. P. S. King & Co. (Finance) Ltd. [1969 U. No. 1525] [1972] Ch. 148 considered. 7. The learned judge made no order in relation to claim number SLUHCV2015/0442 and the stay of the proceedings in that matter has not been discharged and that matter remains unaffected. 8. The learned trial judge made no findings as to the ownership of Block and Parcel Number 1048B 434 but was merely restating the oral application and the basis on which the application was made by counsel for the respondent.


Case Name:		Keston Riley v [1] The Attorney General [2] Director of Public Prosecutions [MNIHCVAP2017/0008] (Montserrat)

Date:		Thursday, 17^th September, 2020

Coram for delivery of judgment:		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:	Mr. Warren Cassell

	Respondent:	Ms. Sherasmus Evelyn on behalf of the Attorney General

Issues:		Interlocutory appeal – Application to strike out appeal – Whether notice of appeal vague or in general terms – Whether notice of appeal disclosed reasonable grounds for bringing appeal – Appeal against refusal of application for recusal – Apparent bias – Whether learned judge erred in refusing recusal application – Whether fair-minded informed observer would conclude that there was real possibility of bias – Whether learned judge ought to have recused himself given his knowledge and prior involvement in matter – Whether learned judge prejudged or predetermined claim – Judicial oath – Weight to be attached to judicial oath in context of recusal application – Approach to be taken by judge where there are doubts as to need for recusal – Whether inconvenience, delay and costs are relevant considerations in determining whether judge ought to be recused


Result / Order:		Held: dismissing the application to strike out the appeal; allowing the appeal; setting aside the decision of the judge not to recuse himself; ordering that a different judge is to be assigned to conduct the hearing of the matter; awarding costs to the appellant to be assessed by a master if not agreed within 21 days, that: 1. Striking out is a severe sanction which ought not to be lightly employed. In this case, the subject of the appeal is made clear from the contents of the notice of appeal and the other material before the Court. Accordingly, the grounds advanced by the respondents for striking out the appeal are unmeritorious and would not conduce to the overall fairness of the proceedings and the wider interests of justice. HRH Prince Abdulaziz Bin Mishal Bin Abdulaziz Al Saud v Apex Global Management Ltd and Anor [2014] UKSC 64 applied; Real Time Systems Limited v Renraw Investments Limited and Ors [2014] UKPC 6 applied. 2. A judge should not sit to hear a case in which the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased. An appellate court is well-positioned to assume the vantage point of a fair-minded and informed observer and make such an assessment. The Court has to ascertain all the circumstances and ask whether those circumstances would lead to the conclusion that there was a real possibility that the judge was biased. Otkritie International Investment Management Ltd and Ors v Mr George Urumov [2014] EWCA Civ 1315 applied; Mr Ashley Dobbs v Triodos Bank NV [2005] EWCA Civ 468 applied; Shaw v Kovac and Anor [2017] EWCA Civ 1028 3 applied; Beard Winter LLP v Kersasp Shekhadar [2016] OJ No. 3257 (QL) applied; Virdi v Law Society [2010] EWCA Civ 100 applied; Helow v Secretary of State for the Home Department [2008] 1 WLR 2416 applied; Harb v HRH Prince Aziz bin Fahd bin Abdul Aziz [2016] EWCA Civ 556 applied; Morrison and Anor v AWG Group Ltd and Anor [2006] EWCA Civ 6 applied; Resolutions Chemicals Limited v H Lundbeck A/S [2013] EWCA Civ 1515 applied; National Assembly for Wales v Condron [2006] EWCA Civ 1573 applied. 3. Prior involvement and knowledge does not automatically disqualify a judge from hearing a matter. Critically however, a judge must not predetermine or prejudge the matter, or form or give the impression that he or she has formed a firm view adverse to the credibility of a party prior to hearing the evidence. The judge’s recusal ruling clearly demonstrates that he was satisfied that the Court of Appeal erred in quashing the conviction; he knew all the evidence; he had reviewed the incriminating evidence against Riley and, as the judge who presided over the criminal matter, he was waiting to put things right in the damages claim. The fair-minded and informed observer would recognise that the learned judge would have approached the matter with a closed mind or would not have brought an objective mind to bear on the claim. Stubbs v The Queen [2018] UKPC 30 applied; Steadman–Byrne v Amjad and Ors [2007] 1 WLR 2484 applied; Costello v Chief Constable of Derbyshire [2001] EWCA Civ 381 applied; Arab Monetary Fund v Hashim [1993] 6 Admin LR 348 applied. 4. Where there is real doubt as to the presence of apparent bias, that doubt should be resolved in favour of recusal. In the present case, the learned judge left open the possibility of reviewing his decision not to recuse, asserting that it was an interim decision to be kept under review, and that he will encourage further argument as to actual bias if he or the parties sense his mind is closing unfairly as the case develops. In these circumstances, the judge ought not to have refused the recusal application and ought to have resolved any doubts as to the presence of bias on his part, in favour of recusal. Locabil (UK) v Bayfield Properties Ltd [2000] QB 451 at 472 considered; Re Medicaments and related Classes of Goods (No.2) [2001] ICR 564 considered; Morrison and Anor v AWG Group Ltd [2006] EWCA Civ 6 considered; Wewaykum v Canada 2003 SCC 45 considered; Resolutions Chemicals Limited v H Lundbeck A/S [2013] EWCA Civ 1515 applied. 5. In the context of apparent bias, much weight has been placed on the judicial oath of office and the fact that professional judges are trained to act objectively and dispassionately. The judicial oath, however, is more a symbol rather than, of itself, a guarantee of the impartiality on the part of a judge. It is just one of the factors which would inform the view of a fair-minded observer in arriving at her or his objective judgment as to the risk of bias and is not conclusive of whether a judge should recuse himself on the basis of apparent bias. R v S (RD) [1997] 3 SCR 484 considered; Jones v DAS Legal Expenses Insurance Co. Ltd. and Ors [2003] EWCA Civ 1071 considered; Helow v Secretary of State for the Home Department [2008] 1 WLR 2416 followed. 6. Whether a judge should recuse themself from hearing a matter is not a discretionary case management decision reached by weighing various factors in the balance. Once the test of apparent bias is satisfied, the judge is automatically disqualified from hearing the case, and considerations of inconvenience, cost and delay are irrelevant. Accordingly, the learned judge’s concerns about the prejudicial effect that his withdrawal from the trial would have on the parties and the administration of justice are totally irrelevant, as the paramount concern of the legal system is to administer justice, which must be and must be seen to be fair and impartial. Man O’ War Station Ltd v Auckland City Council [2002] UKPC 228 applied; Morrison v AWG Group Limited [2006] EWCA Civ 6 applied; Bates & Ors v Post Office Limited [2019] EWHC 871 (QB) applied.



Case Name:		Shallan Overseas Investments Limited v [1] Primefuels Investments Limited [2] Primefuels Holdings Limited Defendants [3] New Rodina Limited [4] Maxim Ventures Trading Corp Respondents/Defendants [5] Fuel Transport Holdings Limited [6] Asif Abdulla [7] George Machan Defendants [BVIHCMAP2019/0005] (Territory of the Virgin Islands)

Date:		Friday, 18^th September 2020

Coram for delivery of judgment:		The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.]

Appearances:
	Appellant:	Mr. Michael Todd, QC, with him, Mr. Philip Gillyon and Ms. Rhonda Brown

	Respondent:	Mr. Giles Richardson, with him, Mr. Peter Ferrer and Ms. Marcia McFarlane for the 3^rd and 4^thRespondents/Defendants

Issues:		Interlocutory Appeal – Commercial Appeal – Counter Appeal – Joint Venture – Parity of interest – Relief under section 184I of BVI Business Companies Act -Application for stay of proceedings – Forum non conveniens – Connecting factors to the jurisdiction – Whether judge erred in principle to such a degree that Court should interfere with findings – Proper law for determination of internal management issues of company-Risk of inconsistent judgments – Consideration of delays in the court system in Mauritius – Consideration of expense of consecutive trials – Case management decision – Appellate court’s approach to case management decision by trial judge



Result / Order:		Held: dismissing the appeal; dismissing the counter appeal; affirming the orders of the Judge, including the order that the costs of the proceedings in the Commercial Court be reserved; and ordering that each party shall bear their own costs of the appeal, that: 1. In determining the most appropriate forum for the trial of an action, a trial judge must consider (a) is there another available forum; (b) if so, is that forum more appropriate for the trial of the claim and; (c) if there is another more appropriate forum, a stay should be granted unless there is a risk that the claimant will not receive justice in the more appropriate forum. In the second limb of the test, the trial judge is required to make an assessment of the connecting factors to the jurisdiction to decide whether the jurisdiction is clearly the most appropriate forum. The Judge did not err in principle in finding that the respondents had not satisfied him that Mauritius or any jurisdiction other than the BVI was clearly and distinctly the more appropriate forum for the trial of the BVI Claim. Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 applied; IPOC International Growth Fund Ltd v LV Finance Group Limited et al BVIHCVAP2003/0020 (delivered 22^nd November 2004, unreported) applied; Lubbe and others v Cape plc[2000] 1 WLR 1545 applied; Anjie Investments Limited and another v Cheng NGA Yee and another BVIHCMAP2016/0003(delivered 24^th November 2016, unreported). 2. Questions of internal management of a company are governed by the law of that company’s place of incorporation, and the courts of that jurisdiction are best suited to give decisions on the control and extent of the powers of management. However, this rule is not absolute or exclusive, as different considerations can arise, especially when the court being asked to adjudicate on a matter of the internal management of a foreign company, is the forum conveniens for the trial of the action. The Judge treated the case as one where the issues of Mauritian law should be decided in Mauritius before the BVI Action could proceed. However, this was not mandatory, as the court that is the forum conveniens can deal with issues involving the internal management of a foreign company on the basis of expert evidence of foreign law, if necessary. The Judge erred in principle in his treatment of the issues of Mauritian law, but this was not fatal to his overall decision. Pergamon Press Ltd v Maxwell[1970] 1 WLR 1167 considered; Konamaneni and others v Rolls Royce Industrial Power (India) Ltd and others [2002] 1 WLR 1269 applied; KMG International NV v Chen and another [2018] EWHC 1078 (Comm) considered; Reeves v Sprecher and others [2007] EWHC 117 (Ch) considered. 3. The risk of inconsistent judgments is a matter of real concern to the courts and should be avoided where possible. A judge must satisfy himself that (a) there is an overlap of issues between the two actions; (b) the parties are the same or substantially the same in both actions; and (c) there is a real risk of inconsistent judgments being delivered on the common issues. In this case there was an overlap between the claims and reliefs sought in the BVI and Mauritius Claims, the parties are substantially the same in both Claims, and there was a risk of inconsistent judgments being delivered. The Judge was therefore correct in his finding that there was a risk of inconsistent judgments. Stencor UK Ltd v Global Steel Holdings Ltd and another [2015] EWHC 363 (Comm.) considered. 4. On the issue of delay, the Court does not find that the evidence of the appellant supports a finding of significant delay. The appellant has attempted to highlight previous judicial commentary of the “endemic” delays in the Mauritian court system. However, each case should be considered on its own facts. The conduct of the Mauritian Claim through the Mauritian courts to date is not an indication of a court system with endemic delays. Hurnam v Attorney General and others [2017] UKPC 33] considered; Tex Services Ltd v Shibani Knitting Co Ltd (In Receivership) [2016] UKPC 31 considered. 5. If the stay had not been granted, the BVI Claim would have proceeded alongside the Mauritian Claim and the costs of both trials would have had to be met immediately. The effect of the stay is that the costs of the BVI Claim will be incurred at a later date, not that there will be substantially more costs overall. 6. An appellate court should not interfere with the case management decision of a trial judge unless the decision was plainly wrong. An appellate court should take into consideration the nature of the case management decision being reviewed. If it finds that the judge erred and the consequences of his decision are far-reaching, the appellate court would be more inclined to intervene. Each case is to be decided on its own facts. While in the instant case, the Court finds that the Judge erred in his treatment of the stay application as one where the Mauritian internal issues should be determined before the BVI Claim proceeds, the Court does not find this to be fatal to the overall decision on the stay. The Judge was exercising his discretion in the context of his management of the BVI Claim and his decision cannot be said to be plainly wrong. As such, the Court will not interfere with the decision of the Judge to stay the BVI Action until the determination of the Mauritius Action. Aquaduct Limited and another v Faelesseje and another SVGHCVAP2014/0017 (delivered 18^th April 2016, unreported) applied; HRH Prince Abdulaiziz v Apex Global Management Ltd and another [2014] UKSC 64 applied.


Case Name:		[1] Della Vallery Nolan née Jude [2] Beverley Jude-Porter v [1] Diane Jude [2] Vandyke Jude [SLUHCVAP2017/0025] (Saint Lucia)

Date:		Friday, 18^th September, 2020

Coram for delivery of judgment:		The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [ Ag.]

Appearances:
	Appellants:	Mrs. Maureen John-Xavier

	Respondents:	Mr. Dexter Theodore, QC, with him Ms. Sueanna Frederick for the First Respondent Mrs. Edith Petra Jeffrey-Nelson and Mrs. Esther Greene-Ernest for the Second Respondent

Issues:		Civil appeal – Undue influence – Presumed undue influence – Existence of relationship of attorney and client – Whether transfers of land by client to attorney amounted to undue influence or abuse of trust or constituted an unconscionable bargain – Actual undue influence – Whether transfers of land and grant of power of attorney to child from parent amounted to actual undue influence, or abuse of trust and confidence, or constituted unconscionable bargains – Trust – Whether transferred lands were being held on trust for beneficiaries or heirs at law – Prescription period for claim of undue influence – Article 2103 of the Civil Code of Saint Lucia – Whether claims made by appellants as claimants in the court below were prescribed by virtue of the Civil Code of Saint Lucia – Whether learned judge erred in considering the defence of prescription in circumstances where it was not pleaded and did not fall in exception outlined in Article 2129 of the Civil Code



Result / Order:		Held: allowing the appeal in part and making the orders set out in paragraph 98 of the judgment, that: 1. Article 2052 of the Civil Code provides that the court cannot, of its own motion, consider the defence of prescription, except where a claim is extinguished bylaw as provided in Article 2129. The claims brought by the appellants in the court below were not caught within this exception. The respondents were accordingly precluded from relying on the defence of prescription since it was not pleaded, was only introduced in closing submissions, and the appellants had no prior notice or fair opportunity to be heard on or respond to that issue. In the circumstances, the trial judge erred in treating with the issue of prescription as one to be determined by him in the proceedings in the court below. Articles 2052 and 2129 of the Civil Code of Saint Lucia, Cap. 4.01 of the Revised Laws of Saint Lucia 2017 applied. A claim of undue influence is neither a delict within the definition of Article 1:15 of the Civil Code with a prescription period of 3 years under Article 2122, nor is it a claim for fraud with a prescription period of 10 years by virtue of Article 2119 of the Code. It follows then that the prescription period for undue influence (which is not otherwise regulated by law) is 30 years, in accordance with Article 2103 of the Code. This prescription period also applies to actions for a breach of trust. Accordingly, the claims brought by the appellant in the court below in April 2009 were not barred by prescription. Articles 1:15, 2119, 2103 and 2119 of the Civil Code of Saint Lucia, Cap. 4.01 of the Revised Laws of Saint Lucia 2017 applied; Khardisha Lindy Princess Jawahir v Davis Gawin Jawahir SLUHCVAP2017/0055 delivered 8^thApril 2019, unreported) followed. 3. For presumed undue influence to arise, there must be: (i) a relationship between two people from which the law presumes that one party has influence over the other; and (ii) a transaction between the two in which the benefit to the party with the influence is so substantial or of such a nature that it cannot prima facie be reasonably accounted for on the ground of the ordinary motives on which ordinary men act. Against the backdrop of the lawyer and client relationship between Vandyke and Austin, their acrimonious relationship, the nature of the land transactions which were being questioned, and the absence of independent advice, the lands transferred to Vandyke clearly fall within the category of gifts which are so substantial that they could not, on the face of it, be accounted for on the ground of the ordinary motives on which the ordinary man acts. Allcard v Skinner [1886-90] All ER Rep 90 considered. 4. Based on the foregoing conclusion and having established that there was a confidential relationship between Austin and Vandyke as lawyer and client, the onus was on Vandyke to prove that Austin received independent advice prior to making the gift to him. In this case, the evidence relied on by Vandyke in support of his assertion that Austin received independent advice was insufficient to discharge the evidential burden placed on him. Accordingly, the learned judge erred in concluding that Vandyke did not, as legal advisor to Austin, exercise undue influence over him in procuring the transfer of lands to him by virtue of the two deeds of transfer dated 23rd July 2007. 5. Actual undue influence is the product of threats, menaces and coercion by the person exercising the influence or of dependence and vulnerability of the person being influenced. On the evidence before the learned judge, it was open to him to conclude that at the time the power of attorney was granted to Diane, there was neither an overpowering of Austin’s will by Vandyke so as to enable him to determine his father’s actions, nor was Austin incapacitated to withstand Vandyke’s dictates. In the circumstances, there is no basis upon which this Court could properly interfere with this factual finding of the trial judge. 6. It is settled law that there is no difference between a case where a person uses undue influence to benefit himself and one in which he uses it to benefit others. However, in the factual circumstances of this case, where parcels 56 and 103 and parcel 48 were transferred by Loretta and Martina respectively to Diane, it was open to the trial judge, on the evidence before him, to conclude that there was no actual undue influence exercised by Diane or Vandyke over Austin to procure these transfers to Diane. Accordingly, there is no basis upon which this Court could disturb the trial judge’s factual finding in this regard. Allcard v Skinner [1886-90] All ER Rep 90 applied; Bridgman v Green (1755) 2 Ves. Sen. 627 applied 7. The trial judge did not err in concluding that the transfers of land by or at the behest of Austin to Diane and Vandyke, other than the transfers effected by the first deed and the second deed, amounted to either an abuse of trust or an unconscionable bargain. 8. The learned judge also did not err in concluding that the lands gifted to Diane by Austin were not to be held on trust for her father or his beneficiaries or his heirs at law. In relation to the lands gifted to Vandyke, this Court, having already found that the lands gifted to him by virtue of the deeds executed on 23rd July 2007 were procured by undue influence, the gifts would accordingly be set aside, leaving nothing therefore to be held on trust.


Case Name:		[1] Network Construction Maintenance & Rehabilitation Limited [2] Gregory Laughan Fevier v Cable & Wireless (St. Lucia) Limited [SLUHCVAP2018/0024] (Saint Lucia)

Date:		Friday, 18^th September, 2020

Coram for delivery of judgment:		The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.]

Appearances:
	Appellants:	Mr. Dexter Theodore, QC with him, Ms. Sueanna Frederick

	Respondent:	Mr. Deale Lee

Issues:		Civil appeal – Breach of contract – Civil Code of Saint Lucia – Prescription – Civil interruption of prescription – Legal effect of acknowledging a debt



Result / Order:		Held: dismissing the appeal and awarding costs to the respondent being two thirds of the costs in the court below; that: 1. In order to interrupt prescription of contracts under article 2121 of the Civil Code by acknowledgement of a debt, the acknowledgement must be unambiguous and unequivocal. Furthermore, such acknowledgement must also be made while the prescription period is still running to be effective, as the contract is prescribed after the expiration of the time within which the Civil Code states an action may be instituted to enforce it. Therefore, the appellants claim for $82, 197.50 as contractual sums due to them prior to September 29, 2003 is prescribed and the purported acknowledgment, at paragraph 29in the defence of the respondent, did not interrupt the prescription period as it was not unequivocal and as it came after the prescription period of six years had expired. Civil Code of Saint Lucia, Cap. 4.01, Revised Laws of Saint Lucia 2013 applied; Bradford & Bingley Plc v Rashid [2006] 1 WLR 2066 considered; Dungate v Dungate [1965] 1 WLR 1477 considered; Surrendra Overseas Ltd. v Government of Sri Lanka [1977] 2 All ER 481 considered; William de Montmollin Marler: The Law of Real Property: Quebec (Burroughs and Company [Eastern] Limited 1932) considered; Deschamps v Bank of Nova Scotia [1989] RDJ 456 applied. 2. NCMR’s contention that the learned judge erred in finding that that there was no agreement as to the rates and therefore no contract is misconceived. When the judgment is read as a whole, it is clear that the learned judge made a finding of fact that the parties agreed the rates to be rates in the “price list”. The learned judge, however, found on a balance of probabilities, that the appellants failed to prove that the sums paid in accordance with the rates were either not in conformity with the contract or unreasonable. 3. While the learned judge did not specifically address the issue of whether Cable & Wireless altered the volume of work done by NCMR and did not pay NCMR for work done in breach of the contract, a judge is not required to address in a judgment each and every issue raised by a party in his statement of claim and on which evidence was led and submissions made by counsel, particularly where that issue is not determinative of the dispute between the parties. In view of the learned judge’s finding that all claims prior to September 2003 were prescribed, the only remaining question to be determined was whether the volume of work for which payment was sought by NCMR in its 30^th October 2003 invoice was altered by Cable & Wireless. NCMR was required to lead specific evidence showing that the volume of work that was altered by Cable & Wireless and also showing that Cable & Wireless were in breach of the contract in so doing and they failed to do either. The learned judge was therefore correct in finding that there was no breach of contract. 4. The appellants contention that the learned judge erred in finding, at paragraph 6 of the judgment, that the internal document was produced in response to a disagreement over a price list is misconceived. The learned judge was not making any findings in paragraph 6, rather he was merely outlining NCMR’s case. Since the learned judge did not make a finding of fact as alleged by NCMR, there is no basis to disturb his ruling on this ground.


		APPLICATIONS AND APPEALS


Case Name:		Augustine Badnock v The Commissioner of Police [SVGMCRAP2019/0033] (Saint Vincent and the Grenadines)

Date:		Tuesday, 15^th September, 2020

Coram:		The Hon. Dame Janice M. Pereira, Chief Justice The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.]

Appearances:
	Appellant/Applicant:	Mr. Cecil Williams

	Respondent:	Ms. Renee Simmons

Issues:		Magisterial criminal appeal – Application to amend Court of Appeal order


Type of Order:		Oral Decision


Result / Order:		[Oral delivery] IT IS HEREBY ORDERED THAT: The compensation order is reinstated.

Reasons:		The appellant was found guilty of the offence of theft, contrary to section 209(1) of the Criminal Code, Cap. 171 of the Laws of Saint Vincent and the Grenadines, Revised Edition 2009 and was sentenced as follows: · Fine in the sum of $3,000.00 to be paid in 1 month, in default 12 months imprisonment · Compensation to the Complainant in the sum of $6,000.00 to be paid in 2 months, in default 18 months imprisonment. By order of the Court of Appeal dated 15^th October 2019, a compensation order in favour of the Virtual Complainant was set aside on the basis that the stolen engine was returned to the Virtual Complainant. The Court observed that there was a genuine error in recording who the engine was returned to. The engine was not returned to the Virtual Complainant but rather to the Defendant. The basis for removing the Compensation Order was erroneous. The record and decision of the Court ought to be corrected by reinstating the compensation order made in favour of the Virtual Complainant. The respondent conceded the appeal for the above reason.


Case Name:		Benjamin Roberts v The Queen [SVGHCRAP2016/0013] (St. Vincent and the Grenadines)

Date:		Tuesday, 15^th September, 2020

Coram:		The Hon. Dame Janice M. Pereira, Chief Justice The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.]

Appearances:
	Appellant:	Mrs. Kay Bacchus-Baptiste Mr. Benjamin Roberts, present

	Respondent:	Mr. John Ballah

Issues:		Criminal appeal against conviction – Oral application by appellant for an adjournment


Type of order:		Directions


Result / Order:		[Oral delivery] IT IS HEREBY ORDERED THAT: 1. The appellant shall file and serve written submissions in support of the appeal on or before 30^th October 2020. 2. The respondent shall file and serve written submissions in response on or before 15^th December 2020. 3. The hearing of the appeal is adjourned to the next sitting of the Court of Appeal for Saint Vincent and the Grenadines during the week commencing 11^th January 2021.


Reasons:		Mrs. Bacchus-Baptiste, counsel for the appellant made an oral application for an adjournment in order to receive proper instructions and to file written submissions. The respondent did not object to the application for an adjournment. Mrs. Bacchus-Baptiste also made an oral application to amend the grounds of appeal. The Court noted that there were no grounds of appeal and therefore invited Counsel to make the necessary application. The Court then gave the parties directions for the matter to progress.


Case Name:		[1] The Anguilla Electricity Co. Ltd., [2] Harold Ruan [3] Dawnette Gumbs v The Attorney General of Anguilla [AXAHCVAP2020/0008] (Anguilla)

Date:		Tuesday, 15^th September, 2020

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:
	Appellants:	Mr. Frank Walwyn with Mr. Chesley Hamilton and Mr. Carlisle Rogers, for the 2^nd and 3^rd appellants

	Respondent:	Mr. Thomas Astaphan, SC with Ms. Erica Edwards, Attorney General [Ag.]

Issues:		Case Management


Type of order:		Oral Decision


Result / Order:		[Oral delivery] IT IS HEREBY ORDERED THAT: The appeal is set down for hearing at the next sitting of the Court in Anguilla scheduled for the week commencing 25^th January 2021.


Reasons:		The Court indicated that there were no further directions to be given at this point other than to set the matter for hearing at the next sitting of the Court of Appeal in Anguilla.


Case Name:		The Commissioner of Police v Brenton Carr [SVGMCRAP2018/00028] (St. Vincent and the Grenadines)

Date:		Tuesday, 15^th September, 2020

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:	Mr. Karim Nelson, Crown Counsel

	Respondent:	Mr. Ronald Marks

Issues:		Magisterial criminal appeal – No case submission – Whether learned magistrate erred in applying the test to be satisfied on a no case submission having regard to the evidence adduced


Type of order:		Oral Judgment


Result / Order:		[Oral delivery] IT IS HEREBY ORDERED THAT: 1. The appeal is allowed. 2. The matter is remitted to be heard before a different Magistrate.


Reasons:		Counsel for the respondent conceded the appeal, admitting that there was an error by the Learned Magistrate. The Court was of the considered view that that the learned magistrate erred in principle in applying the test to be satisfied on a no case submission having regard to the evidence adduced. The Court therefore ordered that the matter should be remitted to the court below, that is, the Magistrate’s Court for a rehearing before a different magistrate.



Case Name:		Rudolph Jackson v Thelma Bailey [SVGMCVAP2019/0005] (Saint Vincent and the Grenadines)

Date:		Tuesday, 15^th September 2020

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:	Mrs. Kay Bacchus-Baptiste

	Respondent:	Mr. Duane Daniel

Issues:		Magisterial civil appeal – Application to strike out appeal – Directions


Type of order:		Oral Decision


Result / Order:		[Oral delivery] IT IS HEREBY ORDERED THAT: 1. The Court hereby directs that the appellant file and serve written submissions in support of the appeal on or before 30^th October 2020 failing which the appeal shall stand dismissed. 2. In the event that the appellant files and serves written submissions as hereby ordered, the Respondent shall file and serve written submissions in response on or before 30^th November 2020. 3. Subject to paragraph 1, the hearing of the appeal shall take place at the sitting of the Court for Saint Vincent and the Grenadines during the week commencing 11^th January 2021. 4. The application to strike is hereby withdrawn with the leave of the Court.


Reasons:		The respondent filed an application to strike out the appeal, which application was pending. Counsel for the appellant indicated to the Court that an affidavit was filed on behalf of the appellant requesting an adjournment in order to respond to the strike out application. The Court advised that it had not had sight of either the strike out application or the affidavit on behalf of the appellant and noted that an application for an adjournment should be made by way of Notice of Application supported by an affidavit and not simply by filing an affidavit. Counsel for the respondent indicated that he did not object to the application for an adjournment, bearing in mind that the Court had not had sight of the application to strike out the appeal and the affidavit filed on behalf of the appellant requesting an adjournment. Counsel for the appellant made an oral application to withdraw the Application to Strike out the Appeal on the basis that an Unless Order was made.



Case Name:		Cameron Balcombe v Rawlston Stewart [SVGMCVAP2014/0013] [Saint Vincent and the Grenadines]

Date:		Tuesday, 15^th September, 2020

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:	Mrs. Ronnia Durham-Balcombe

	Respondent:	Mr. Ronald Marks

Issues:		Magisterial civil appeal – Whether decision of learned magistrate unreasonable and cannot be supported by the evidence – Adjournment of trial – Natural justice – Procedural fairness – Prior notice and reasonable opportunity to be heard – Part-heard trial continued in appellant’s absence with no notice given to him or his counsel – Whether learned magistrate erred in proceeding with a part-heard matter ex parte


Type of Order:		Oral Judgment


Result / Order:		[Oral delivery] IT IS HEREBY ORDERED THAT: 1. The appeal is allowed on the natural justice grounds raised by the appellant and as conceded by the respondent. 2. The matter is accordingly remitted for retrial before a different Magistrate.


Reasons:		Counsel for the respondent conceded the ground of appeal that the appellant did not have an opportunity to appear at the trial of the matter. The Court was of the view that the matter ought to be remitted to the Court below for retrial before a different Magistrate. The appellant had a right to be heard and was not given a proper opportunity to present his case.


Case Name:		Sturnimus Wiseman v Marva Wiseman (The Legal Personal Representative of the Estate of Aaron Bushay, deceased) [SVGMCVAP2018/0006] [St. Vincent and the Grenadines]

Date:		Tuesday, 15^th September, 2020

Coram:		The Hon. Dame Janice Pereira, DBE, LL.D., Chief Justice The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.]

Appearances:
	Appellant:	In person

	Respondent:	Ms. Samantha Robertson

Issues:		Magisterial civil appeal – Recovery of Possession Act of Saint Vincent and the Grenadines – Whether learned magistrate erred in granting order seeking recovery of possession – Whether learned magistrate failed to allow appellant adequate time to prepare his case


Type of order:		Oral Judgment


Result / Order:		[Oral delivery] IT IS HEREBY ORDERED THAT: 1. The appeal is dismissed. 2. The order for possession dated 7^th February 2018 is affirmed. 3. No order as to costs.


Reasons:		The appellant stated that the grounds of appeal were straightforward and on that basis, together with the fact that justice would be best served, he was requesting a retrial. The Court was of the view that the grounds of appeal were unmeritorious and unsupported by the record. There was no error on the part of the Learned Magistrate. Accordingly, the issue of a retrial did not arise.


Case Name:		[1] Phoenix Group Foundation [2] Minardi Investments Limited v [1] Carl Stuart Jackson [2] Greig Mitchell [3] Simon Bonney [4] Andrew Hosking (as Joint Liquidators of Unicorn Worldwide Holdings Limited, Ballaugh Holdings Limited, Glen Moar Properties Limited and Sulby Investment Holdings Limited) [BVIHCMAP2018/0012] (Territory of the Virgin Islands)

Date:		Tuesday, 15th September, 2020

Coram:		The Hon. Mr. Davidson Kelvin Baptiste, Justice of Appeal The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. Gerard St. C. Farara, Justice of Appeal [Ag.]

Appearances:
	Appellants:	Mr. David Lord QC with him Mr. Sebastian Kokolaar and Mr. Iain Tucker

	Respondent:	Mr. Martin Pacoe QC with him Ms. Blair Leahy, QC and Mr. Andrew Willins

Issues:		Whether leave was required to appeal against sanction order and interim stay – Whether notice of appeal a nullity as a consequence of not obtaining leave – Extension of time – Whether application for an extension of time to seek leave to appeal should be granted – Whether extension and leave application ought to be dismissed

Type of order:		Oral Decision


Result / Order:		[Oral delivery] IT IS HEREBY ORDERED THAT: 1. Leave is required to appeal against the Order of Justice Jack made on 15^th July 2020. 2. The Notice of Appeal filed on 10^th July 2020 having been filed without leave is a nullity and is accordingly struck out. 3. Upon application made by the applicants and with no objection by the respondents, an extension of time is granted to the applicants to seek leave to appeal against the order of Justice Jack and leave is granted to the applicants against the aforesaid order. 4. The applicants shall file a Notice of Appeal by 4pm on 16^th September 2020. 5. The parties are hereby directed to re-file electronically all documents previously filed for the hearing of the appeal on or before 18^th September 2020. 6. The appeal shall be heard on Thursday 24^th September 2020 and shall be for a duration of one day. 7. The time for the making of any application for leave to appeal to the Judicial Committee of the Privy Council against paragraph 1 of this order is extended until 21 days after the delivery of the judgment of the Court on the substantive appeal.


Reasons:		The Court was of the considered view that leave was required to appeal the decision of Justice Jack. Accordingly, the Notices of Appeal filed without leave of the Court are to be considered a nullity.

Case Name:		Lorraine Cato v Gracelyn Cato Nee Peters [SVGHCVAP2015/0019] (Saint Vincent and the Grenadines)

Date:		Wednesday, 16th September, 2020

Coram:		The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. Gerard St. C. Farara, Justice of Appeal [Ag.]

Appearances:
	Appellant:	Mr. Roderick Jones

	Respondent:	Ms. Paula David

Issues:		Civil appeal – Family law – Order for maintenance of child – Whether learned judge erred in her decision to grant maintenance for adult child with cerebral palsy and for property to be held on trust for the said child

Type of Order:		Oral judgment


Result / Order:		[Oral delivery] IT IS HEREBY ORDERED THAT: 1. The appeal is dismissed, and the decision of the learned judge is affirmed in its entirety. 2. Each party shall bear its own costs.


Reasons:		This is an appeal against the decision of the learned Justice Pearletta Lanns, which was delivered on 29^th April 2015. The decision was based on an application for ancillary relief in relation to a child who has cerebral palsy and in relation to whom the learned judge made a number of orders including an order for maintenance of the child in the sum of $700 per month and in relation to property – that those properties are to be held on trust for the benefit of the child. The appellant, aggrieved by this decision, seeks to challenge the learned judge’s decisions. He has filed Grounds of Appeal and Learned Counsel has quite properly indicated that he is only pursuing Grounds 1, 2, 3 and 4 of the Grounds of appeal. The Court read and gave deliberate consideration to the very helpful written and oral submissions of learned counsel. The Court was of the unanimous view that there is no basis upon which it can properly interfere with the decision of the learned judge. The Court dismissed the appeal against the decision of the learned judge and affirmed the decision on the basis that the findings and the conclusions to which the learned judge arrived were clearly open to the judge in the circumstances where she was enjoined to take into account a number of matters in appealing Sections 34 (1) and (2) of the Matrimonial Causes Act of Saint Vincent and the Grenadines and in particular Sections 2 (a) and (c) of that Act.


Case Name:		Javin Johnson V [1] The Attorney General of Saint Vincent and the Grenadines [2] The Incorporated Trustees of the Seventh-Day Adventist Church in Saint Vincent, The Incorporated Trustees of the Evangelical Church of the West Indies, The New Testament Church of God, The Archbishop & Primate (Spiritual Baptist) of Saint Vincent and the Grenadines, The Church of God (Saint Vincent and the Grenadines), The Incorporated Trustees of the New Life Ministries, The Light of Truth Church of God, Kingstown Baptist Church of Saint Vincent and the Grenadines, Living Water Ministries International (Saint Vincent and the Grenadines) and Hope Evangelism Outreach Ministries [SVGHCVAP2020/0004] (St. Vincent and the Grenadines)

Date:		Wednesday, 16th September, 2020

Coram:		The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. Gerard St. C. Farara, Justice of Appeal [Ag.]

Appearances:
	Appellant:	Mr. Jason Beer QC, with Mr. Jomo Thomas, Mr. Peter Joseph Laverack and Ms. Shirlan Barnwell

	Respondent:	Ms. Karen Duncan for the First Respondent Mrs. Mandella Peters and Mrs. Cheryl Bailey instructed by Mrs. Meisha Cruickshank for the Second Respondents

Issues:		Interlocutory appeal – Application for extension of time to adduce fresh evidence – Whether learned trial judge erred in not allowing the appellant leave to adduce expert evidence – Whether refusal to hear application to adduce fresh evidence violated appellant’s right to fair trial – Whether learned trial judge’s refusal to allow an extension of time to adduce expert evidence prejudiced the appellant – Costs – Whether learned judge erred in awarding wasted costs in favour of the second respondnets

Type of Order:		Oral judgment


Result / Order:		[Oral delivery] IT IS HEREBY ORDERED THAT: 1. The appeal is allowed and the decision and orders of the learned judge dated 17^th March 2020 are set aside in their entirety. 2. The appellant is granted an extension of time to file an application to adduce expert evidence within 14 days of the date of this order. 3. The application to adduce expert evidence shall be set down for hearing before a different judge of the High Court. 4. Each party shall bear their own costs.


Reasons:		This is an appeal by Mr. Javin Johnson against the decision of the learned judge contained in an order dated 17th March, 2020 by which Order the learned judge refused an application for an extension of time for an application to adduce expert evidence and directed the appellant to pay wasted costs. The Court, having read the submissions of Mr. Jason Beer QC, and that of the respondents, was of the view that the learned trial judge erred in not affording the appellant the opportunity to receive and or be granted leave to adduce expert evidence. The time allowed by the Learned Trial Judge was insufficient in the circumstances and the Learned Trial Judge ought to have exercised her discretion to extend the time permitted under Part 32 of the Civil Procedure Rules 2000 given the constitutional nature of the matter. Additionally, granting the appellant an extension of time to adduce expert evidence would not have upset the timelines of the trial as the matter was not yet ripe for trial and no trial directions had been given to the parties. The Court was of the view that the appellant would have suffered prejudice as a result of the Learned Trial Judge’s refusal to grant an extension of time to adduce expert evidence. The Respondent had been afforded the opportunity to adduce expert evidence and the Interested Parties who joined the matter late had an outstanding application to adduce expert evidence to be deliberated upon by the Learned Trial Judge. Accordingly, it was in the interest of justice to allow the appellant the opportunity to adduce expert evidence especially given the fact that it was the respondent that introduced a public health aspect to its defence in the matter that was not in the appellant’s claim.



Case Name:		[1] Sancus Financial Holdings Limited [2] Carson Wen [3] Julia Yuet Shan Fung V [1] Chad Holm [2] FH Investments (BVI) Limited [BVIHCMAP2019/0002] [Territory of the Virgin Islands]

Date:		Wednesday, 16th September 2020

Coram:		The Hon. Dame Janice Pereira, DBE, Chief Justice The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.]

Appearances:
	Appellants/Applicants:	Mr. Paul Chaisty, QC with him Mr. Elliott Simpson and Ms. Laure Wigglesworth

	Respondents:	Mr. Hefin Rees, QC with him Mr. Oliver Clifton and Mr. Callum McNeil

Issues:		Application for final leave to appeal to Her Majesty in Council – Application foe stay of execution of costs orders

Type of Order:		Oral Decision


Result / Order:		[Oral delivery] IT IS HEREBY ORDERED THAT: 1. The Appellants are granted final leave to appeal to Her Majesty in Council in respect of the Order made by the Court of Appeal on 30th March, 2020 whereby (inter alia) the Court of Appeal dismissed the Appellants’ appeal against the order and decision of Adderley J dated 19th December, 2018. 2. The record shall be transmitted to the Registrar of the Judicial Committee of the Privy Council in accordance with the provisions of the Judicial Committee (Appellate Jurisdiction) Rules Order 2009, and its Practice Directions. 3. The Respondent’s oral application for permission to rely upon the Seventh Affidavit of Chad Holm is refused. 4. There be a stay of all unpaid costs orders between the Appellants and the Respondents, to include those made (i) in this Court on 5th August, 2019 in BVI Commercial Appeal 2019/0019 (ii) in this appeal on 30th March, 2020, and (iii) in the Court below on 19th December 2018, in each case pending the determination of the Appellants appeal to Her Majesty in Council, to include, for the avoidance of doubt, the assessment of the costs due under those orders. 5. The Appellants costs of the application for final leave to appeal be treated as costs in the appeal to Her Majesty in Council. 6. The Respondents shall pay the costs of the application for a stay of the costs orders, to be assessed if not agreed within 30 days; and the assessment of those costs be stayed pending the determination of the appeal to Her Majesty in Council.


Reasons:		The Court was satisfied that the conditions were met for the grant of leave to appeal to Her Majesty in Council. The Court was further satisfied that the Applicant had satisfied the requirements for a Stay of Execution.


Case Name:		C & R Enterprises Limited V Bank of Saint Vincent & the Grenadines Ltd (Formerly the Nnational Commerical Bank (SVG) Ltd.) [SVGHCVAP2016/0034] [St. Vincent and the Grenadines]

Date:		Wednesday, 16th September, 2020

Coram:		The Hon. Dame Janice Pereira, DBE, Chief Justice The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.]

Appearances:
	Appellant:	Mr. Roderick Jones holding for Ms. Maia Eustace

	Respondent:	Mr. Richard Williams

Issues:		Civil appeal – Adjournment

Type of Order:		Adjournment


Result / Order:		[Oral delivery] IT IS HEREBY ORDERED THAT: The appeal will come on for hearing at 2:00pm.


Reasons:		Mr. Jones indicated to the Court that he is not properly on record for the appellant and that the lead counsel, Mr. Emery Robertson Snr. is now deceased. Mr. Jones further indicated that he has been holding discussions with the appellant and may be in a position to place himself on record soon. Counsel for the respondent, Mr. Richard Williams, said that the Respondent is frustrated and argued that it appeared as though the appellant had no intention of prosecuting its appeal. Mr. Williams contended that the appellant has been delinquent in repaying the judgment debt, has retained possession of the mortgaged premises, continues to collect rent from the said commercial premises and that the appellant was granted a stay of execution in July 2017. Mr. Williams also noted that the appellant had only filed the Record of Appeal after an Unless Order was made on 16^th April 2019. This Order was made upon an application by the Respondent to strike out the appeal. Mr. Williams submitted that Mr. Emery Robertson Snr never appeared in the matter and that his name was not on record. Mr. Williams lamented the inordinate delays in the prosecution of the appeal by the appellant who, to date, had not even filed written submissions. Counsel for the respondent indicated that they were ready to proceed. The Court enquired as to whether Mr. Emery Robertson Snr. was on record and concluded that the record did not disclose this. On record was Cato and Cato for the appellant. The Court observed that although the Record of Appeal was ready no further steps were taken by the appellant to prosecute the appeal. The Court was of the view that the actions of the appellant has caused grave prejudice to the respondent and are tantamount to an abuse of the processes of the Court. The Court pointed to the fact that the Record was only filed after the threat of sanction, that no written submissions were filed to date, the appellant continues to enjoy a stay of execution and continues to default on the judgment debt while continuing to collect rent. In sum, the Respondent has not been able to enjoy the fruits of the judgment. Having considered the manner in which the appellant has conducted the appeal, the request for an adjournment and all the circumstances of the case, the Court determined that in the interest of justice, the appeal will be heard at 2:00 pm and that Ms. Maia Eustace who is on record is required to appear.


Case Name:		C & R Enterprises Limited V Bank of Saint Vincent & the Grenadines Ltd Formerly the National Commerical Bank (SVG) Ltd. [SVGHCVAP2016/0034] [St. Vincent and the Grenadines]

Date:		Wednesday, 16th September, 2020

Coram:		The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Paul Webster,Justice of Appeal [Ag.]

Appearances:
	Appellant:	Ms. Maia Eustace, Mr. Roderick Jones with a watching brief

	Respondent:	Mr. Richard Williams with Mr. Stephen Williams

Issues:		Civil appeal – Oral application for adjournment

Type of Order:		Adjournment


Result / Order:		[Oral delivery] IT IS HEREBY ORDERED THAT: 1. On the application of counsel for the appellant Mr. Jones, seeking the adjournment of the hearing of this appeal to a later date, and the court having regard to the prejudice which has been caused by the delay in prosecuting this appeal by the appellant, the appellant shall pay to the respondent the following sums; $40,000.00 to be paid by 21^st September, 2020, and a further $60,000.00 to be paid by 30^th October, 2020. 2. Should the appellant fail to make payment of any of these sums by the time herein provided, the appeal shall stand dismissed without further order, with costs to the respondent to be assessed. 3. The appellant is to file and serve his written submissions in support of the appeal no later than 9^th October, 2020. 4. In the event that the appellant makes the said payments by way of allowing for the adjournment of this appeal, the hearing of the appeal shall be heard during the week of the sitting of the court for the Commonwealth of Dominica scheduled for the week beginning 9^th November, 2020.


Reasons:		Counsel on record Ms. Maia Eustace, made an apology to the Court and explained her absence when the matter was first called up. Ms. Eustace went on to explain that she was only acting as instructing solicitor and that Mr. Emery Robertson Snr., although not on record, was in fact lead counsel. Ms. Eustace requested an adjournment to allow the appellant time to make new arrangement consequent upon the passing of Mr. Emery Robertson Snr. The Court reminded Counsel that as an officer of the Court, counsel has a duty to disclose on the record all relevant matters. The Court again noted that the appellant had not filed any written submissions. The Court advised that it was ready to proceed with the hearing of the appeal and urged the appellant to act in good faith. Mr. Jones indicated that he was not in a position to proceed with the hearing of the appeal as he was not fully instructed. At this juncture, Ms. Maia Eustace suggested that the parties be given an opportunity to consult and this request was granted. Upon resumption of the hearing, Mr. Roderick Jones indicated to the Court that the parties had reached an agreement which they wished to place before the Court. The agreement was that the appellant offered to pay $40, 000.00 by 21^st September 2020 and $60,000.00 by 30^th October 2020. The parties also agreed to adjourn and traverse the hearing of the substantive appeal to the next available sitting of the Court of Appeal in any jurisdiction, subject to the approval of the Court. If the appellant failed to comply with the terms of the agreement the appeal will stand dismissed. Counsel for the Respondent confirmed this agreement. The Order of Court was made accordingly.


Case Name:		John Frederick V The Queen [SVGHCRAP2016/0007] [St. Vincent and the Grenadines]

Date:		Thursday, 17th September, 2020

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:	Mrs. Kay Bacchus-Baptiste

	Respondent:	Ms. Sejilla McDowall, Director of Public Prosecutions

Issues:		Criminal appeal – Appeal against conviction and sentence – Unlawful sexual intercourse with a girl under 13 years


Type of order:		Oral judgment

Result / Order:		[Oral delivery] IT IS HEREBY ORDERED THAT: 1. The appeal against conviction is dismissed and the conviction is affirmed. 2. The appeal against sentence is allowed to the extent that the sentence is varied from the term of 13 years to a term of 12 years.


Reasons:		The appellant was found guilty of the offence of unlawful Sexual Intercourse with a girl under the age of 13, contrary to Section 124 of the Criminal Code of Saint Vincent and the Grenadines and was sentenced to 13 years imprisonment. The appellant appealed against conviction and sentence on 3 grounds, namely that the learned trial judge erred in: (i) rejecting as hearsay, the evidence of the accused witness, Harold Frederick; (ii) failing to give a corroboration warning; and (iii) failing to put the defendant’s case to the jury. The Court listened to oral and written submissions. The Court was of the considered view that none of the grounds in relation to the safety of the conviction had any merit. The Court noted that there was clear and compelling evidence by the Virtual Complainant which the jury believed. The Court insisted that there was cogent and overwhelming evidence to support the prosecution’s case. The oral and written submissions of counsel for the appellant and counsel for the respondent were taken into account. The Court noted the great disparity in age between the appellant and the Virtual Complainant and further noted the mitigating factors in this case. Balancing all these factors, the Court found that the sentence of 13 years was excessive. The Court accordingly concluded that the sentence which meets the justice of the case is 12 years’ imprisonment.


Case Name:		Shemore James V The Commissioner of Police [SVGMCRAP2018/0057] [St. Vincent and the Grenadines]

Date:		Thursday, 17th September, 2020

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:	No appearance

	Respondent:	Ms. Maria Jackson-Richards

Issues:		Criminal appeal – Appeal against sentence – Burglary
Type of Order:		Oral judgment
Result / Order:		[Oral delivery] IT IS HEREBY ORDERED THAT: The appeal is dismissed.

Reasons:		The Court noted that the appellant was absent, having already served his sentence.



Case Name:		Iso Lynch v The Commissioner of Police [SVGMCRAP2020/0012] [St. Vincent and the Grenadines]

Date:		Thursday, 17^th September, 2020

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. John Ballah

Issues:		Magisterial criminal appeal – Inducing into Her Majesty’s prisons a cell phone – Appeal against sentence – Whether sentence excessive in the circumstances


Type of Order:		Oral Judgment


Result / Order:		[Oral delivery] IT IS HEREBY ORDERED THAT: The appeal is dismissed.


Reasons:		The appellant, Iso Lynch was convicted of inducing into Her Majesty’s Prison one (1) cellular phone contrary to the Prisons Act of the Laws of Saint Vincent and the Grenadines. He was sentenced to 3 months imprisonment to run consecutively to a sentence which he was currently serving. The appellant appealed against his sentence on the ground that the sentence is excessive. The appellant submitted that his sentence should be reduced due to his guilty plea and should run concurrently. Having considered the oral and written submissions, the Court found that the learned Magistrate took into account the guilty plea of the appellant and balancing the aggravating and mitigating factors, the Court found no reason to disturb the sentence of 3 months’ imprisonment imposed by the Magistrate. There was no merit in the appeal and the Court took the view that the appeal should be dismissed.


Case Name:		Iso Lynch v The Commissioner of Police [SVGMCRAP2019/0011] [St. Vincent and the Grenadines]

Date:		Thursday, 17^th September, 2020

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:	Mrs. Tammika McKenzie-DaSilva

Issues:		Magisterial criminal appeal – Appeal against sentence – Driving without a permit


Type of order:		Oral judgment


Result / Order:		[Oral delivery] IT IS HEREBY ORDERED THAT: 1. The appeal is allowed and a concurrent sentence is substituted for the consecutive sentence. 2. The three offences in respect of which the appellant has pleaded guilty will run concurrently to the 6 year sentence currently being served by the appellant.


Reasons:		The appellant pleaded guilty to the following offences and was sentenced as follows: · Dangerous driving – contrary to section 48(1) of the Motor Vehicle and Road Traffic Act of the Revised Edition of the Laws of Saint Vincent and the Grenadines 2009 and sentenced to a fine of $250.00 to be paid forthwith or 2 months imprisonment. · Driving a vehicle without insurance – contrary to section 3(1) of the Motor Vehicle and Road Traffic Act of the Revised Edition of the Laws of Saint Vincent and the Grenadines 2009 and sentenced to a fine of $450.00 forthwith or 3 months’ imprisonment to run concurrently with other traffic offences he pleaded to but consecutively to sentence he was serving previously. · Diving a vehicle without a permit – contrary to Section 29(1) of the Motor Vehicle and Road Traffic Act of the Revised Edition of the Laws of Saint Vincent and the Grenadines 2009 and sentenced to a fine of $300.00 forthwith or 3 months’ imprisonment to run concurrently to other traffic charges and consecutively with a previous sentence he was serving. The learned Magistrate imposed a fine payable forthwith. There was no examination as to the means of the appellant. The Court has held several times that the Magistrate’s Court ought not to impose fines forthwith. The appellant appealed against his sentence and in his appeal invited the Court to substitute a concurrent sentence for the three offences as opposed to a consecutive sentence. The appellant is currently serving three two year sentences for deception to run consecutively. Counsel for the respondent advised the Court that the appellant will complete serving the first 2 year sentence on 29^th September 2020. The Court listened to oral submissions of the appellant and the respondent. The Court determined that when the Court considers imposing consecutive sentences, the Court must consider the principle of totality. At the time of the traffic offences, the appellant was already serving a 6 year sentence. When the Court looked at the totality of the sentence, the Court empathised with the appellant’s position. The Court was of the view that the imposition of the consecutive sentence infringed the totality principle.


Case Name:		Andre Dennie v The Commissioner of Police [SVGMCRAP2020/0007] [St. Vincent and the Grenadines]

Date:		Thursday, 17^th September, 2020

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:	Ms. Rose-Ann Richardson

Issues:		Magisterial criminal appeal – Appeal against sentence – Driving without a permit – Whether sentence excessive in the circumstances


Type of Order:		Oral judgment


Result / Order:		[Oral delivery] IT IS HEREBY ORDERED THAT: 1. With respect to the appellant’s conviction of driving without a driver’s permit, the sentence of $750.00 payable in 2 months or in default 3 months imprisonment is affirmed. 2. With respect to the appellant’s conviction of driving an uninsured vehicle, the fine of $750.00 is affirmed, and is payable in 2 months or in default 3 months imprisonment. 3. The appellant’s disqualification from obtaining or holding a driver’s license for 1 year is also affirmed. 4. With respect to the offence of driving with two defective rear tyres, the court substitutes the fine of $250.00 imposed by the magistrate with a fine of $125.00 payable in 2 months and in default 3 months imprisonment.


Reasons:		The appellant pleaded guilty to the following offences and was sentenced as follows: · Driving without being the holder of a driving permit, contrary to Section 29(1) of the Motor Vehicle Insurance (Third Party Risk) Act of the Laws of Saint Vincent and the Grenadines, Revised Edition 2009 and sentenced to a fine of $1,500.00 to be paid by 25^th June, 2018. · Driving an uninsured vehicle – contrary to Section 3(1) of the Motor Vehicle (Third Party Risk) Act of the Laws of Saint Vincent and the Grenadines, Revised Edition 2009 and sentenced to fine of $750.00 to be paid by 25^th June 2018, in default 3 months imprisonment and disqualified from holding and obtaining a driver’s license for one year. · Driving vehicle with defective tyres – contrary to regulation 29 of the Motor Vehicle and Road Traffic Act of the Laws of Saint Vincent and the Grenadines, Revised Edition 2009 and sentenced to fine of $250.00 to be paid by 25^th June 2018, in default 3 months imprisonment. The appellant appealed against sentence. The appellant contends that the sentence imposed is severe and invited the Court to reduce the sentence. The Court listened to the oral submissions of the appellant and the respondent who in essence appeared to agree with the submissions of the appellant in terms of the severity of the sentences.


Case Name:		Okeno Fergus v The Commissioner of Police [SVGMCRAP2020/0010] [St. Vincent and the Grenadines]

Date:		Thursday, 17^th September, 2020

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:	Mr. Jomo Thomas

	Respondent:	Mr. John Ballah

Issues:		Magisterial criminal appeal – Appeal against conviction – Unlawful and malicious Wounding


Type of Order:		Oral judgment


Result / Order:		[Oral delivery] IT IS HEREBY ORDERED THAT: 1. The appeal is allowed. 2. The conviction is quashed and the conviction and sentence set aside. 3. The matter is to be re-tried in the Magistrates Court before a different magistrate.


Reasons:		The appellant was found guilty of the offence of unlawful and malicious wounding, contrary to Section 174 of the Criminal Code of the Laws of Saint Vincent and the Grenadines, Revised Edition 2009 and was sentenced to 4 months’ imprisonment suspended for 1 year. The appellant is aggrieved by the decision of the learned Magistrate and has appealed on several grounds: 1. The learned Magistrate erred in not applying his mind to the standard of proof beyond a reasonable doubt required for guilt in a criminal trial. 2. The learned Magistrate made improper inferences and found the Appellant guilty because he did not return the injury forms to the police as well as to take judicial notice of what might have happened if the police had improperly shot the Appellant. 3. The learned Magistrate disregarded crucial evidence where the Virtual Complainant and his chief witness, his brother were caught lying to the Court. 4. The reasons given by the learned trial Magistrate in support of the conviction were wholly inadequate and constitute an error of law. The Court reviewed the written submissions of the appellant and respondent and the oral arguments of both Counsel. Critically, the Court reviewed the Reasons for Decision provided by the learned Magistrate and was unanimous in the view that the learned Magistrate committed several errors of law in so far as the learned Magistrate appeared to reverse the burden of proof. The principle of the burden of proof is trite law and is applied across the Commonwealth jurisdiction. To make matters more egregious, the learned Magistrate took matters of judicial notice which was inappropriate. The Court concluded that the decision of the learned Magistrate is therefore unsafe. On the issue of a retrial, the interest of justice requires the circumstances of the Appellant and the countervailing circumstances of the respondent to be considered. The recency of the commission of the offence, the availability of witnesses are also factors to be considered. Taking into account the principles laid down in Reid v The Queen [1979] 2 All ER 904 and Sherfield Bowen v the Queen [2007] ECSCJ No. 89 (delivered 20^th June 2007) and which have been consistently applied by this Court, the Court is of the view that the matter ought to be tried before a different Magistrate.





Case Name:		Cardel Jacobs v The Commissioner of Police [SVGMCRAP2019/0029] (St. Vincent and the Grenadines)

Date:		Friday, 18^th September 2020

Coram:		The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.]

Appearances:
	Appellant:	Mr. Cardel Jacobs in person

	Respondent:	Ms. Renee Simmons

Issues:		Magisterial criminal appeal – Appeal against conviction – Oral application for adjournment


Type of Order:		Adjournment


Result / Order:		[Oral delivery] IT IS HEREBY ORDERED THAT: The hearing of the appeal is adjourned for a final time to the next sitting of the Court for Saint Vincent and the Grenadines during the week commencing 11^th January 2021.


Reasons:		The appellant, Mr. Cardel Jacobs, having requested an adjournment in order to have a counsel present to represent him in the appeal. The counsel for the respondent did not object to the adjournment. The Court being cognizant of the fact the matter has been previously adjourned for Mr. Jacobs to be represented by counsel granted a final adjournment to enable the appellant a chance to obtain counsel to conduct his appeal.



Case Name:		The Commissioner of Police v Ackeam Hooper [SVGMCRAP2019/0042] [St. Vincent and the Grenadines]

Date:		Friday, 18^th September, 2020

Coram:		The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.]

Appearances:
	Appellant:	Ms. Rose-Ann Richardson

	Respondent:	In person

Issues:		Magisterial criminal appeal – Appeal against conviction


Type of order:		Oral judgment


Result / Order:		[Oral delivery] IT IS HEREBY ORDERED THAT: The appeal is dismissed.

Reasons:		The respondent was found not guilty to the offence of damage to property, contrary to Section 267 (1) of the Criminal Code of the Revised Laws of Vincent and the Grenadines 2009. A no case submission was made and the respondent was formally found not guilty. This was an appeal as to whether the learned judge misdirected herself on the applicable law and whether the learned judge erred in accepting the no case submission in the Court below. The Court of Appeal could see no reason to disturb the findings of facts made by the learned judge in the court below. The learned judge in the court below did not err in law or fact as there was a basis on which the learned judge could have made the determination that was ultimately made.


Case Name:		Zonel Joseph V The Commissioner of Police [SVGMCRAP2020/0009] [St. Vincent and the Grenadines]

Date:		Friday, 18^th September, 2020

Coram:		The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.]

Appearances:
	Appellant/Applicant:	Mr. Israel Bruce

	Respondent:	Mrs. Tammika McKenzie DaSilva

Issues:		Magisterial criminal appeal – Application to amend grounds of appeal


Type of order:		Oral decision


Result / Order:		[Oral delivery] IT IS HEREBY ORDERED THAT: The application to argue a new ground of appeal that the magistrate erred in failing to address the issue of self defence, is granted.

Reasons:		Counsel for the appellant made an oral application to adduce fresh evidence as counsel wished to rectify a procedural error in his appeal. Counsel had added a new ground of appeal without leave of the Court. The Court heard the oral application of counsel for the appellant and granted leave to adduce fresh evidence.


Case Name:		Zonel Joseph V The Commissioner of Police [SVGMCRAP2020/0009] (St. Vincent and the Grenadines)

Date:		Friday, 18th September, 2020

Coram:		The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.]

Appearances:
	Appellant:	Mr. Israel Bruce

	Respondent:	Mrs. Tammika McKenzie DaSilva

Issues:		Magisterial criminal appeal – Appeal against conviction – Unlawful and Malicious Wounding


Type of order:		Oral judgment


Result / Order:		[Oral delivery] IT IS HEREBY ORDERED THAT: 1. The appeal is allowed and the conviction is quashed. 2. The matter is remitted to the Magistrates’ Court for retrial before a different Magistrate.

Reasons:		The appellant was found guilty of the offence of unlawful and malicious wounding, contrary to Section 174 of the Criminal Code of the Revised Edition of the Laws of Saint Vincent and the Grenadines 2009 and was sentenced to 11 months and 26 days imprisonment. The Crown conceded that the learned Magistrate ought to have addressed the issue of self-defence which arose on the facts. Accordingly, the failure to address the issue of self-defence rendered the conviction and sentence of the appellant unsafe. The matter was remitted for retrial as the matter was of recent vintage and it would be in the interest of justice to have the matter heard by a different magistrate.



Case Name:		Allie Franklyn Providence V The Commissioner of Police [SVGMCRAP2018/0038] [St. Vincent and the Grenadines]

Date:		Friday, 18^th September, 2020

Coram:		The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.]

Appearances:
	Appellant:	Mrs. Kay Bacchus Baptiste

	Respondent:	Mrs. Tammika McKenzie DaSilva

Issues:		Magisterial criminal appeal – Appeal against conviction – Oral application for adjournment


Type of order:		Adjournment


Result / Order:		[Oral delivery] IT IS HEREBY ORDERED THAT: 1. The appellant is granted leave to make an application to amend the grounds of appeal on or before 15^th October 2020. 2. The appellant shall file and serve written submissions with authorities on or before 13^th November 2020. 3. The respondents have leave to file written submissions with authorities in reply on or before 15^th December 2020. 4. The hearing of the appeal is adjourned for a final time to the next sitting of the Court of Appeal for Saint Vincent and the Grenadines during the week commencing 11^th January 2021.

Reasons:		Counsel for the appellant made an oral application for an adjournment stating that she had just been engaged and needs more time to properly acquaint herself with the file and get instructions from the appellant. She also made an oral application for leave to file submissions and leave to amend the grounds of appeal. The Court pointed out to the counsel that on the previous occasion when the Court sat in the State, the appellant was granted a final adjournment to this sitting of the Court. The Crown objected to any further adjournment on the ground that the matter has been on the Court’s list since November 2018. The Court took into consideration the oral submissions of both sides and factored in the interest of justice and granted the appellant one final adjournment to the next sitting of the Court.


Case Name:		Asher Dublin v The Commissioner of Police [SVGMCRAP2019/0020] [St. Vincent and the Grenadines]

Date:		Friday, 18^th September, 2020

Coram:		The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.]

Appearances:
	Appellant:	In person

	Respondent:	Mr. Karim Nelson

Issues:		Magisterial criminal appeal – Appeal against conviction – Adjournment


Type of order:		Adjournment


Result / Order:		[Oral delivery] IT IS HEREBY ORDERED THAT: The hearing of the appeal is adjourned for a final time to the next sitting of the Court of Appeal for Saint Vincent and the Grenadines during the week commencing 11^th January 2021.

Reasons:		The appellant made an oral application for another adjournment to obtain legal representation in his appeal, to which the respondent did not object. In the interest of justice, the Court, noting that at the last call of this matter the appellant was granted an adjournment to obtain counsel, nonetheless gave one final opportunity to the appellant to get legal representation.


Case Name:		Setra Harry v The Commissioner of Police [SVGMCRAP2019/0030] [St. Vincent and the Grenadines]

Date:		Friday, 18^th September, 2020

Coram:		The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.]

Appearances:
	Appellant:	Mr. Duane Daniel

	Respondent:	Mr. John Ballah

Issues:		Magisterial criminal appeal – Unlawful and Malicious Wounding – Appeal against conviction and sentence – Whether sentence excessive in the circumstances


Type of order:		Oral judgment


Result / Order:		[Oral delivery] IT IS HEREBY ORDERED THAT: 1. The appeal is allowed in relation to sentence. 2. A sentence of 18 months is substituted in place of the 3 years sentence imposed by the Magistrate; time spent, being 2 months and 3 days, is to be taken into account.

Reasons:		The appellant was found guilty to the offence of unlawful and malicious wounding, contrary to Section 174 of the Criminal Code of the Revised Edition of the Laws of Saint Vincent and the Grenadines 2009 and was sentenced to 3 years imprisonment. The appellant appealed against the sentence on the basis that the sentence was excessive in all the circumstances. The Court has outlined the circumstances in which it will interfere with the sentence of the learned Magistrate in the court below. One such circumstance is where the learned Magistrate erred in principle. The Court is of the view that the Learned Magistrate erred in principle. The learned Magistrate was of the mistaken view that the maximum term for a summary conviction was 14 years while in fact it is 7 years. The Court considered what it thought to be the appropriate sentence: Ø The offence was one of wounding. The record did not reflect that the Virtual Compliant received a serious wound. The Virtual Complainant spent one day and one night at the hospital. The Court noted that the Crown concedes that the offence was not unprovoked and the Court took into account the aggravating factors. Ø The Court took into account that the learned Magistrate noted the appellant appeared to have no remorse as she was smiling during the trial. The Court was of the view that this ought not to have been counted as an aggravating factor as different persons process grief differently. The Court considered the presence of a thirteen year old child the only aggravating factor in this matter. Ø The appellant possessed a clean record at the time of the offence and the injury inflicted was a single wound. Ø The fact that the appellant is a mother to two minor children ought not to be given much weight during the sentencing exercise. Accordingly, the Court was of the view that a sentence of 18 months was just in all the circumstances. Further the 2 months and 3 days already served by the appellant was to be taken account when computing the final sentence of the appellant.


Case Name:		Maxwell Patterson v The Commissioner of Police [SVGMCRAP2020/0014] [St. Vincent and the Grenadines]

Date:		Friday, 18^th September, 2020

Coram:		The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.]

Appearances:
	Appellant:	In person

	Respondent:	Mrs. Maria Jackson-Richards

Issues:		Magisterial criminal appeal – Appeal against conviction and sentence – Damage to Property – Whether there was sufficient evidence to support learned magistrate’s conclusion


Type of order:		Oral judgment


Result / Order:		[Oral delivery] IT IS HEREBY ORDERED THAT: 1. The appeal against conviction is dismissed. 2. The appeal against sentence is dismissed and the sentence imposed by the Magistrate is affirmed.

Reasons:		The appellant was found guilty of the offence of damage to property, contrary to Section 267(1) of the Criminal Code of the Laws of Saint Vincent and the Grenadines 2009 and was sentenced to make compensation to both Virtual Complainants in the sum of $1,500.00 to be paid by March 2019 and in default 9 months’ imprisonment. The Court has made it clear on numerous occasions in its previous decisions that the learned Magistrate is the fact finder based on the evidence before him or her and it will only interfere with the findings of the learned Magistrate in exceptional circumstances as outlined in previous decisions of the Court in this regard. The learned Magistrate had direct evidence from one Virtual Complainant and circumstantial evidence from the other Virtual Complainant about the chops along with direct evidence from witnesses about the events. Accordingly, there was ample evidence upon which the learned Magistrate could have made his decision. The appellant did not pursue the appeal against sentence and for that reason the appeal against sentence was dismissed by the Court.



Case Name:		[1] BBL Limited [2] Irina Savelieva v [1] Canouan Resorts Development Limited [2] Canouan Realty Limited [SVGHCVAP2019/0006] (St. Vincent and the Grenadines)

Date:		Friday, 18^th September, 2020

Coram:		The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mr. Davidson Kelvin Baptiste, Justice of Appeal The Hon. Mr. Gerard St. C. Farara, Justice of Appeal [Ag.]

Appearances:
	Appellants:	Mr. Keith Scotland with Ms. Maia Eustace

	Respondents:	Mr. Joseph Delves for the First Respondent Mr. Geoffrey Bollers for the Second Respondent

Issues:		Interlocutory appeal –– Appeal from refusal of application for relief from sanctions and extension of time to comply with unless order –– Failure to file witness statements in compliance with unless order –– Application for extension of time and relief from sanctions made before sanction took effect –– Whether learned judge erred in dealing with application as one for relief from sanctions and not for extension of time –– Whether application made before sanction takes effect ought properly to be for an extension of time or for relief from sanctions –– Rules 26.1(2)(k) and 26.8 of Civil Procedure Rules 2000 –– Considerations for grant of an extension of time –– Length of delay –– Reasons for delay –– Prejudice to respondents –– Chances of success


Type of Order:		Directions


Result / Order:		[Oral delivery] IT IS HEREBY ORDERED THAT: 1. The 1^st and 2^nd respondents shall file and serve written submissions addressing the decision of the High Court of England and Wales in Everwarm Limited v BN Rendering Limited [2019] 4 WLR 107 by no later than 25^th September, 2020. 2. The appellant shall file and serve any reply submissions thereto no later than Friday 2^nd October, 2020. 3. The decision of the Court is hereby reserved.

Reasons:		*Counsel for the respondents requested an opportunity to review the decision in Everwarm Limited v BN Rendering Limited [2019] 4 WLR 107* which the Court cited. Counsel for the appellant then requested an opportunity to respond to any submissions filed by counsel for the respondents.**