Othneil Sylvester Intended Appellant v [1] Faelleseje, A Danish Foundation Intended Respondent [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Judge: BARROW, J.A.,Justice of Appeal,Chief Justice [Ag.]
• Judgment Date: 20 February 2006
• Judgment citation (vLex): [2006] ECSC J0220-4
• Court: Court of Appeal (Saint Vincent)
• Docket Number: CIVIL APPEAL NO.5 OF 2005
• Date: 20 February 2006

[2006] ECSC J0220-4

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Brian Alleyne, S.C. Chief Justice [Ag.]

The Hon. Mr. Denys Barrow, SC Justice of Appeal

The Hon. Mr. Hugh Rawlins Justice of Appeal

CIVIL APPEAL NO.5 OF 2005

Between:

Othneil Sylvester

Intended Appellant

and

[1] Faelleseje, A Danish Foundation

Intended Respondent

Appearances:

Sir Henry Forde Q.C., Mr. Russel Martineau S.C., Mr. E. Robertson and Ms. Nicole Sylvester for the appellant

Mr. Karl Hudson Phillips Q.C., Mr. Stanley Marcus S.C., Mr. Bertram Commissiong Q.C., and Ms. Mira Commissiong for the respondents

BARROW, J.A.

1 There are two parts to the burden that rests upon the intended appellant ("the appellant") in his application for leave to appeal the master's refusal to strike out the Statement of Claim in proceedings brought by the intended respondents ("the respondents"). The appellant needs to show that the intended appeal has a real prospect of success 1, which is a heavier burden than showing only that he has an arguable appeal, according to the view, which I respectfully adopt, of the English Court of Appeal in

ED&F Man Liquid Products Ltd. V Patel. 2 But in addition, because he seeks to appeal against the exercise of a judicial discretion, he needs to show a real prospect that he will be able to persuade the appellate court that the master's decision did "not consider the case to be sufficiently plain and obvious to warrant striking out at this stage", was clearly or blatantly wrong. 3

2 These are the first stages of proceedings commenced in the High Court by the respondents claiming the recovery of money paid to the appellant and alleging breach of trust and (arguably) fraud against him and, therefore, the less said about the claim the better, in the event the proceedings do continue. It is emphasized that the summary which follows and any apparent statement of facts that appears to be made herein, are only the version of events given by the respondent and are not findings of facts. In a forty-five paragraph statement of case the respondents set out their claim beginning in July 1984, when the respondent decided to purchase a group of estates in north eastern St. Vincent, called the Orange Hill Estates. The appellant acted as the lawyer for the respondents in the transaction and advised them on arrangements to avoid paying to the Government the fee of approximately US$200,000.00 that would be payable if the respondents, who were aliens for the purposes of the relevant law, were required to obtain an alien's landholding licence. A number of companies was formed, one to hold title to the land and the others to own the shares in the titleholder. The respondents say the appellant expressly confirmed that the arrangements accorded with the law. The respondents provided the money for the price and the legal and other costs. Shortly after, the Government compulsorily acquired the lands.

3 Compensation was paid by Government to the appellant in 1993 but the respondents say he concealed this fact from them and they did not find out that compensation had been paid until they read of it in a newspaper in 1996. In 1997 the appellant paid over to the respondents the sum of EC$1,485,000.00. The respondents say the appellant refuses to pay a balance of EC$5,646,900.00 to them. They say that the appellant denies that they

are entitled to any money and that the appellant contends that they committed an illegal act in evading the requirements of the law that they must obtain an alien's licence to own land and so cannot rely upon their illegality to claim the beneficial ownership of the lands and the proceeds of sale. The respondents allege deceit, breach of trust and the production of fictitious balance sheets.

4 As gathered from the Reasons for Decision 4 given by the master, in the application to strike out the appellant contended that the claim is barred by the Limitation Act, 5 that the Statement of Claim reveals that the claim is based on an illegality, that the Statement of Claim reveals no reasonable grounds to bring the claim, and that the claim is scandalous, frivolous, vexatious or otherwise an abuse of the process of the court.

The limitation and the illegality points

5 The limitation point that the appellant took was that section 7 of the Limitation Act prevents the bringing of any action founded on simple contract after 6 years from the date on which the cause of action accrued. The appellant notes that the compensation money was allegedly paid in 1993 and the claim was brought in 2004.

6 The master adverted to the respondents' argument in response that their claim was for fraudulent breach of trust and that section 23 of the Limitation Act prevented time from running in such a case. The master stated that at that stage of proceedings, without the benefit of pleadings from the defendant or evidence from either side, he declined to hold that...