Eastern Caribbean Supreme Court
  • About Us
    • Brief History of the Court
    • Court Overview
    • Meet the Chief Justice
    • Past Chief Justices
      • Sir Hugh Rawlins
      • Sir Brian George Keith Alleyne
      • His Lordship, the Hon. Justice Adrian Saunders
      • Hon. Sir Charles Michael Dennis Byron
      • Rt. Hon. Sir Vincent Floissac
      • Honourable Sir Lascelles Lister Robotham
      • More..
        • Hon. Neville Algernon Berridge
        • Sir Neville Peterkin
        • Sir Maurice Herbert Davis
        • Justice P. Cecil Lewis
        • Sir Allen Montgomery Lewis
    • Judicial Officers
      • Justices of Appeal
        • His Lordship, the Hon. Justice Davidson Kelvin Baptiste
        • His Lordship, the Hon. Justice Mario Michel
        • Her Ladyship, the Hon. Justice Gertel Thom
        • His Lordship, the Hon. Justice Paul Anthony Webster [Ag.]
        • His Lordship, the Hon. Justice Gerard Farara, KC
        • His Lordship, the Hon. Justice Trevor Ward, KC
      • High Court Judges
      • Masters
    • Court of Appeal Registry
    • Court Connected Mediation
      • Court-Connected Mediation Practice Direction Forms
      • Mediation Publications
    • More…
      • Career Opportunities
      • Legal Internship
      • Transcript Requests
      • Directory
  • Judgments
    • Privy Council
    • Caribbean Court of Justice
    • Court Of Appeal Judgments
    • High Court Judgments
    • Digests of Decisions
    • Country
      • Anguilla
      • Antigua & Barbuda
      • Grenada
      • Montserrat
      • Saint Kitts and Nevis
      • Saint lucia
      • Saint Vincent & The Grenadines
      • Territory of the Virgin Islands
    • Year
      • 1972 – 1990
        • 1972
        • 1973
        • 1975
        • 1987
        • 1989
        • 1990
      • 1991 – 2000
        • 1991
        • 1992
        • 1993
        • 1994
        • 1995
        • 1996
        • 1997
        • 1998
        • 1999
        • 2000
      • 2001 – 2010
        • 2001
        • 2002
        • 2003
        • 2004
        • 2005
        • 2006
        • 2007
        • 2008
        • 2009
        • 2010
      • 2011 – 2019
        • 2011
        • 2012
        • 2013
        • 2014
        • 2015
        • 2016
        • 2017
        • 2018
        • 2019
    • Judgment Focus
  • Sittings & Notices
    • Schedule of Sittings
    • Court of Appeal Sittings
    • Chamber Hearing (Appeals)
    • Case Management (Appeals)
    • High Court Sittings
    • Status Hearings
    • Special Sittings
    • Notices
  • Court Procedures & Rules
    • ECSC Court of Appeal Rules
    • ECSC (Sittings of the Court) Rules, 2014
    • Civil Procedure Rules [WEB]
    • ECSC Civil Procedure Rules
      • Civil Procedure Rules 2000 [Amendments to Nov 2015]
      • Civil Procedure (Amendment) Rules 2014
      • ECSC Civil Procedure (Amendment) (No.2) Rules
      • Civil Procedure Rules 2000 [Amendments to May 2014]
      • Civil Procedure (Amendment) Rules 2013
      • Civil Procedure (Amendment) Rules 2011
    • ECSC Criminal Procedure Rules
      • Criminal Procedure Rules SI No. 22 of 2015
    • ECSC Sentencing Guidelines
    • Non Contentious Probate Rules and Administration of Estates
    • Family Proceedings Rules
    • More..
      • Election Petition Rules
      • Legal Profession Disciplinary Procedure Rules (St. Lucia)
      • Code Of Judicial Conduct
      • Court Forms
        • Introduction of E-Filing
        • BVI Commercial Division E-Filing
        • Court-Connected Mediation Practice Direction Forms
      • Court Proceedings Fees
      • SILK Application Procedure
      • Practice Directions
      • Practice Notes
      • Video Conferencing Protocols
  • News & Publications
    • ECSC Media Gallery
    • Annual Reports
    • Appointments
    • Press Releases
    • Papers & Presentation
      • Opening of the Law Year Addresses
    • Tributes
  • E-Litigation
    • E-Litigation Portal
    • E-Litigation Instructional Videos
    • ECSC E-Litigation Portal User Information
    • Electronic Litigation Filing and Service Procedure Rules
    • Notices of Commencement
    • E-Litigation Publications
  • J.E.I
    • JEI History
    • Structure of JEI
    • JEI Chairman
    • Mandate, Objectives, Standards
    • Programmes Archive
      • Conferences
      • Programmes & Projects
      • Symposiums
      • Training
      • Workshops
    • Upcoming Activities
more
    • About Us
    • Meet the Chief Justice
    • Civil Procedure Rules
    • Mediation
    • Careers
  • Contact
  • Saved for Later
 Home  E-Litigation Portal
  •  Court Procedures And Rules
    • Civil Procedure Rules
    • Court Forms
    • Election Petition Rules
    • Practice Directions
  •  Judgments
    •  All
    •  Court of Appeal
    •  High Court
    •  Digest of Decisions
  •  Sittings
    •  All
    •  Court of Appeal
    •  High Court
  • Sign In
    
    Minimize Search Window
    •       {{item.title}} Filter By Category {{SelectedFilters.length}}x Categories 
    •       {{item.title}} {{selectedCountries.length}}x Countries Country 
    •       {{item.title}} Filter By Year {{selectedOptions.length}}x Options 
    
    Sorry can't find what you're looking for try adjusting your search terms
    Appeal
    {{doc._source.post_title}}
    Page {{indexVM.page}} of {{indexVM.pageCount}}
    pdf
    Home » Judgments » Court Of Appeal Judgments » Eunice Edwards v Keith Edwards et al

    ANTIGUA AND BARBUDA
    IN THE COURT OF APPEAL
    CIVIL APPEAL NO. 15 of 2005
    BETWEEN:
    EUNICE EDWARDS
    Appellant
    and
    1. KEITH EDWARDS
    2. NJARDAS AS
    Respondents
    Before:
    The Hon. Mr. Brian Alleyne S.C. Chief Justice [Ag]
    The Hon. Mr. Michael Gordon, QC Justice of Appeal
    The Hon Mr. Hugh Rawlins Justice of Appeal
    Appearances:
    Sir Fenton Ramsahoy SC with Lionel Greenidge for the Appellant

    Ms. Eleanor Clarke-Solomon for the 1st Respondent

    2007: March 14;

    JUDGMENT
    1. GORDON, J.A.: When we heard this matter, we gave an oral judgment in court. We
    have since been asked to reduce our reasons for our decision to writing. This I now
    seek to do.
    2. The appellant and the first respondent were man and wife1. During the course of their
    marriage they acquired various properties including a holding of some 832 acres of
    land at Five Islands, Antigua (hereinafter referred to as “the Property”) said to be
    valued in excess of US$ 40,000,000.00. They held the Property as joint proprietors.
    Mr. and Mrs. Edwards divorced. After the divorce there was a partition proceeding
    initiated by the Respondent. The parties arrived at a consent order which dealt with
    most of their substantial holdings. Curiously, the consent order did not address the
    Property. It should also be mentioned that the former matrimonial home was built on
    the Property. As the learned trial judge said in her judgment: “The reason for that as
    claimed by Mrs. Edwards in paragraph 8 of her affidavit of 3rd March was that having
    regard to the physical characteristics of the land it would have been difficult to
    determine the most equitable way of dividing the land. This beggars the imagination”2
    3. The Respondent was indebted to Njardar AS, the 2nd respondent (hereafter referred to
    as “Njardar”) in a sum of some $36,547.98 for which debt Njardar obtained a judgment
    in default of acknowledgment of service against the Respondent.
    4. The judgment remained largely unsatisfied and Njardar took out a judgment summons
    in October 2003. The Respondent was ordered to make payments by instalments and
    in default to be committed to prison for 14 days. The Respondent defaulted and in
    December 2003 Njardar applied to have him committed. The committal proceedings
    were compromised by both parties, who were represented by counsel, agreeing to a
    negotiated settlement and as a result a consent order was entered in the proceedings.
    By that order, the Respondent agreed to give to Njardar a charge over a half share of
    the property and the order provided that his (the Respondent’s) half share be sold to
    satisfy the debt.
    5. The appellant applied to intervene and permission was granted. The burden of the
    opposition of the appellant was that the court had no jurisdiction to make the consent
    1 As the 2nd respondent took no part in this appeal, the term Respondent will be used to designate the 1st
    respondent
    2 Judgment, Paragraph 2
    order nor to order the sale of the Property as the same was joint property and the joint
    ownership could not be severed unilaterally by the Respondent acting on his own. The
    matter came on for hearing and the learned trial judge made an order which in part
    read:
    “It is declared that the consent order in Suit 230 of 2003 Njdar AS made on 28th
    January and entered on 5th February, 2005 taken in conjunction with Mrs Edwards’
    refusal to consent to a severance by joining to file the relevant instrument
    prescribed by the Registered Land Act has the effect of severing the beneficial
    joint tenancy in the Property registered as Parcels 1,2 and 3 of Block 1290A in
    Five Islands Registration section.”
    6. The appellant has appealed that judgment of the trial judge. Antigua and Barbuda, like
    many of the present and former territories which form part of the British Empire and
    British Commonwealth has a Registered Land Act, Cap 374 of the Laws of Antigua
    and Barbuda (hereafter referred to as RLA). Section 3 (1) of RLA provides: “Except as
    otherwise provided in this Act, no other law and no practice or procedure relating to
    land shall apply to registered land under this Act so far as it is inconsistent with this
    Act”
    7. Section 101 of RLA provides as follows:
    a. “101 (1) Where the land, lease or charge is owned jointly, no proprietor is entitled
    to any separate share in the land, and consequently-
    (a) dispositions may be made only by all the joint proprietors; and
    (b) on the death of a joint proprietor, his interest shall vest in the
    surviving proprietor or the surviving proprietors jointly.
    (2) For the avoidance of doubt it is hereby declared that –
    (a) ….
    (b) a joint proprietor of any land, lease or charge may transfer his interest
    therein to all the other proprietors.
    (3) Joint proprietors, not being trustees, may execute an instrument in the
    prescribed form signifying that they agree to sever the joint proprietorship, and the
    severance shall be completed by the registration of the joint proprietors as
    proprietors in common in equal shares and by filing the instrument.”
    8. Sections 102 and 103 of LRA set forth the characteristics of proprietorship in common
    and the rights of co-owners.
    9. The issue which was before the trial judge was, as she characterized it, really one of
    statutory interpretation. In the scheme of the trial judge’s interpretation one further
    section of LRA is set forth for ease of reference and it is section 161. Section 161
    reads:
    “161. Any matter not provided for in this Act or in any other written law in relation
    to land, leases and charges registered under this Act and interests therein shall be
    decided in accordance with the principles of justice, equity and good conscience.”
    10. The learned trial judge made reference, in her judgment, to the case of Mums
    Incorporated et al v Cayman Capital Trust et al3, a case decided by the Court of
    Appeal of the Cayman Islands. In that case, the very same issue of involuntary
    separation of a joint interest arose. The appellants applied for an order for the sale of
    the second respondent’s interest in a jointly owned property (the matrimonial home)
    based on a judgment they had obtained against the second respondent. The wife of
    the second respondent was registered as a joint proprietor. The Grand Court of the
    Cayman Islands held that they had no power to grant an order for the sale of the
    second respondent’s interest save in compliance with section 100 of the Registered
    Land Law (Revised). The provisions of the Registered Land Law (Revised) of the
    Cayman Islands are in pari materia with the LRA. The appellants appealed to the
    Court of Appeal of the Cayman islands who upheld the finding of the trial judge. The
    learned trial judge in this case, very correctly, in my view, held that an authority from
    the Court of Appeal in the Cayman Islands was in no sense binding on her and was at
    best only persuasive. Having endorsed the trial judge’s characterization of the
    3 (2000) CILR 131
    relationship between the judgments from the Cayman Islands and judgments of our
    own courts, however, I find that I must prefer the reasoning of Telford Georges JA in
    the Mums Incorporated case to that of the learned trial judge.
    11. What the learned trial judge sought to do, in contra-distinction to Georges JA, was to
    provide a ‘filler’ for what she saw as a lacuna in the law. At paragraphs 32 and 33 of
    her judgment she says the following:
    “Section 101(1) reiterates the common law position that a joint tenant does not
    have a separate interest in the land. It goes on to state that “dispositions” shall
    only be made by all the joint proprietors. What then is a disposition? It is defined
    as meaning “any act inter vivos by a proprietor whereby his rights in or over his
    land, lease or charge are affected, but does not include and agreement to transfer,
    lease or charge. See, Section 2. And undoubtedly in the context of section 101 a
    disposition can only relate to a disposition of the whole of the property by all the
    joint proprietors as no one proprietor has a separate share in the land.
    “However, what provisions has the Act made for severance in circumstances
    where the joint proprietors no long desire to hold the property as joint tenants?
    Surprisingly, the answer is none, unlike the situation with tenants in common
    where it provides by section 102(2) that no proprietor in common shall
    unreasonably withhold consent to a disposition by another common proprietor to a
    stranger. And under section 103(1) anyone proprietor in common may apply to
    the Registrar for partition. I note there is no reference to the Partition Act.
    Parliament must be presumed to know that the Partition Act applies to joint tenants
    as well as tenants in common and if it wished to preclude applications under the
    Partition Act by a joint tenant where a fellow joint tenant did not consent to a
    disposition or severance it had the opportunity to say so expressly. By not doing
    so and by not making any provision for situations where joint tenants failed to
    agree to file the prescribed instrument under section 101(3) it seemingly left a
    serious lacuna in the law.”
    12. The learned trial judge then seeks to use section 161 of LRA as the ‘filler’ for the
    lacuna. She states at paragraphs 34 and 35 the following:
    However, to my mind on closer consideration Parliament did not leave the joint
    tenant without a remedy. By section 161 Parliament recognized implicitly that it
    might have omitted to deal with all matters touching and concerning registered
    land and specifically addressed this by providing that such matters be resolved as
    stated in section 161. What better formula could have been devised for
    addressing omissions.
    Clearly, as I have found, Parliament omitted and I do not find that it did so
    intentionally, to consider the situation where joint tenants fail to agree on
    disposition or severance and I must therefore go on to resolve the issue having
    regard to the principles mandated by section 161. This brings one to a
    consideration of the facts of this case.”
    13. Georges JA in the Mums Incorporated case deals with the Cayman equivalent of
    section 161 in this way:4
    “The long title of the RLL [the Registered Land Law of Cayman Islands] reads: “A
    Law to make provision for the registration of land and for dealing in land so
    registered and for purposes connected therewith.” Section 3 states: “Except as
    otherwise provided in this Law, no other law and no practice or procedure relating
    to land shall apply to land registered under this law so far as it is in consistent with
    this Law.”[Emphasis supplied.] There is a proviso which is not relevant to the
    circumstances under discussion. Section 164 provides:
    ‘Any matter not provided for in this Law or in any other Law in relation to
    land, leases and charges registered under this Law and interests therein
    shall be decided in accordance with the principles of justice, equity and
    good conscience’
    It would appear from these provisions that the RLL is intended to cover
    completely the matters pertaining to the registration of land and dealings in
    registered land with which it purports to deal. While concepts of English land law
    both before and after 1925 may provide a useful backdrop against which to view
    the RLL, they should not be permitted to intrude upon its interpretation.
    Section 37(1) of the RLL provides:
    ‘No land, lease or charge registered under this Law shall be capable of
    being disposed of except in accordance with this Law and every attempt
    to dispose of such land, lease or charge otherwise that in accordance with
    this Law shall be ineffectual to create, extinguish, transfer, vary or affect
    any estate, right or interest in the land, lease or charges.”
    In the definitions section, s.2, “disposition” is defined as meaning “any act inter
    vivos by a proprietor whereby his rights in or over his land, lease or charge are
    affected, but does not include any agreement to transfer, lease or charge.”
    These sections were considered by Henry, J. A. in Paradise Manor Ltd. v. Bank of
    Nova Scotia (1) and he concluded (1984-85 CILR at 480):
    ‘By applying the definition of “disposition” to s37, the meaning that
    emerges is that no right of a proprietor in or over his land, lease or charge
    4 Ibid Page 134 lines 1 – 36
    registered under the Law shall be capable of being affected [except] in
    accordance with the Law and the system of registration established by it.”
    I accept this dictum as accurately expressing the position”
    14. We found that the reasoning of Georges JA led to a conclusion with which we agreed.
    In those circumstances we allowed the appeal with costs to the appellant.

    /eunice-edwards-v-keith-edwards-et-al/
     Prev
    The Attorney General of St Kitts and Nevis et al v Queensway Trustees Limited
    Next 
    Luis Jarvis et al v American Airlines Inc.
    Eastern Caribbean Supreme Court

    2nd Floor Heraldine Rock Building
    Waterfront
    P.O. Box 1093
    Castries
    Saint Lucia
    T: +1 758 457 3600
    E: offices@eccourts.org

    • About Us
      • Court Overview
      • Career Opportunities
      • Directory
      • Privacy Policy
    • Judgments
      • Court Of Appeal
      • High Court
    • Sittings
      • Chamber Hearing
      • Court of Appeal
      • High Court
    • News & Updates
      • Appointments
      • Press Releases
    • Civil Procedure Rules
      • Court Forms
      • Practice Directions
    © 2023 Eastern Caribbean Supreme Court. All Rights Reserved

    Submit your email address and name to subscribe for email notifcations.

    [email-subscribers-advanced-form id="1"]
    Bookmark
    Remove Item
    Sign in to continue
    or

    Bookmarked Items
    •  Home
    • Judgments
    • Sittings
    •  News
    •  more