Emile Elias v Joseph Elias
| Jurisdiction | Trinidad & Tobago |
| Judge | Boodoosingh J.A.,Smith J.A. |
| Judgment Date | 28 January 2022 |
| Neutral Citation | TT 2022 CA 3 |
| Docket Number | Civil Appeal No. P307 of 2016 |
| Court | Court of Appeal (Trinidad and Tobago) |
(Executors and Trustees of Nagib Elias, deceased)
G. Smith J.A.
M. Dean-Armorer J.A.
R. Boodoosingh J.A.
Civil Appeal No. P307 of 2016
HCA No. 5234 of 1985
IN THE COURT OF APPEAL
Mr. J Mootoo instructed by Mr. A. Byrne for the Appellant.
Ms. D Peake SC, Mr. R. Heffes-Doon instructed by Mr. S. Harrison for the Respondents.
I have read the judgment of Smith J.A. I agree with it and have nothing to add.
……………………………………….
M. Dean-ArmorerJustice of Appeal
Delivered by Smith J.A.
The Appellant and the Respondents are siblings. They have been involved in this litigation against each other since 1985.
Pursuant to a judgment given since 1995, the Respondents sought to enforce an award of costs in their favour. This culminated in an Amended Summons of 27 April, 2016 whereby the Respondents essentially sought:-
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(a) An order that the order for costs made on 31 July 1995 operated as an equitable charge on two properties formerly owned by the Appellant.
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(b) An order that consequent upon the sale of those two properties, the Appellant do give an account of and/or pay over the proceeds of sale of the said properties to the Respondents (the tracing process).
On the Amended Summons of 27 April, 2016, Pemberton J granted the Respondents both of the orders mentioned above and ordered the Appellant to pay the costs of that summons.
The Appellant has appealed the decision of Pemberton J.
Originally, the Appellant was advancing three basic arguments, namely:
However, in oral submissions before us, counsel abandoned arguments (ii) and (iii) above. 1
Therefore the only issue which was being pursued on this appeal was whether there was an enforceable equitable charge on the two properties of the Appellant which could be satisfied via the tracing process.
This issue, though framed simply, produced extensive argument.
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(i) There was no enforceable equitable charge over the two properties which could be satisfied by the tracing process;
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(ii) The trial judge was wrong to amend what was a summons for sale to allow the tracing process;
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(iii) The tracing process had to be pursued by a separate action and could not form part of the Amended Summons.
Interestingly enough, the main bone of contention revolved around the provisions in a very old statute, the Remedies of Creditors Act of Trinidad and Tobago Chapter 8:09, which dates back to 1845. Despite its antiquity, there was very little case law with respect to the specific questions to be resolved in this case. Further, the guidance from this limited case law was essentially obiter dicta.
Nevertheless, at the end of the day, I am satisfied that the trial judge's decision was correct and accordingly I would dismiss this appeal.
This Appellant had challenged the validity of the last will of his father, Nagib Elias, in the original 1985 action. The Respondents in that action were the executors named in the will. In July 1995, Justice Crane gave judgment, pronouncing in favour of the validity of the will of Nagib Elias and also ordered this Appellant to pay the costs of that action.
After an unsuccessful appeal, the costs were taxed. The costs of the High Court action were taxed at $1,260,253.27. The costs of the appeal were taxed at $318,229.00. The Registrar's allocaturs in respect of both sets of costs were issued on 12 February, 2012 (for the costs of the appeal) and 19 April, 2012 (for the costs in the High Court).
The Respondents registered and re-registered the judgment with costs to be taxed since 2003. And re-registered the judgment with the taxed costs since 2012.
In May 2015, the Respondents issued a summons for the sale of five properties, which allegedly belonged to the Appellant, to satisfy the judgment debt for costs. At the date of the summons for sale, the judgment debt with interest was over $4.5 million dollars.
However, pursuant to searches done on the titles of those five properties which allegedly belonged to the Appellant, the Respondents discovered that they had all been sold before the date of the summons for sale. However, two of these properties were sold by the Appellant after the High Court judgment of Justice Crane in July 1995. One was sold in 1997 for $200,000.00 and the other was sold in 2004 for $200,000.00.
On the 25 April, 2016, the Respondents got the leave of the Court to amend the summons for sale to advance the tracing process in respect of the $400,000.00 which the Appellant received from the sale of the two properties mentioned above.
As noted above, the 1995 judgment had been first registered in 2003 and re-registered in 2006, 2009 and 2012 with “costs to be taxed”. However from October 2012, the judgment with the figures for taxed costs pursuant to the Registrar's allocaturs had been re-registered. It is accepted that the 2003 registered judgment would not have affected the sale of the first property in 1997. Further, the Respondents/judgment creditors have, correctly (in our view), not asked for relief against the purchaser of the second property in 2004, since at that time there was only a registered judgment with ‘costs to be taxed.’ The judgment for the actual taxed costs was only registered in October 2012.
As stated before, the Respondents/judgment creditors have only asked for the tracing process as against the judgment debtor personally in respect of the $400,000.00 he received from the sale of the two properties in question, after the 1995 judgment.
The Remedies of Creditors Act Chapter 8:09 (“ ROCA”), which was first enacted as an Ordinance in Trinidad in 1845, contains three provisions which are relevant to this discussion, namely sections 5, 7 and 8.
Section 5 provides that “Every judgment or decree to be entered up against any person in the Court shall operate as a charge upon all lands… which that person shall at the time of entering up the judgment or decree, or at any time afterwards, be seized, possessed or entitled for any estate or interest whatever… and shall be binding as against the person against whom the judgment or decree shall be entered up, and against all persons claiming under him after the judgment or decree…” (my emphasis).
By the clear terms of section 5 of the ROCA, a judgment creates a charge over the lands of a judgment debtor. This charge has been described as a “judgment charge”.
Further, as has been aptly stated in Paget's Law of Banking 14 th edition at paragraph 15.2, “ Every charge, whether over a legal or equitable interest, must be equitable, there being no such thing as a legal charge.” (The only exception being a charge by legal mortgage of land created by the 1925 U.K. Law of Property Act which does not apply to Trinidad and Tobago).
In summary, by section 5 of ROCA (quoted above), every judgment that has been entered or drawn up creates an equitable charge over the lands of the judgment debtor. There was no dispute that the 1995 judgment was entered up and therefore it created an equitable judgment charge under section 5 of the ROCA against the lands of the Appellant/judgment debtor.
The relevant parts of section 7 and 8 of ROCA state:
“ 7. No judgment or decree of the Court shall affect any lands as to purchasers, mortgagees or creditors, or have any preference against heirs, executors or administrators… any notice to any such purchaser, mortgagee or creditor, or to any such heir, executor or administrator notwithstanding, unless and until a memorandum or minute containing the name and the usual or last known place of abode and the trade or profession of the person whose estate is intended to be affected thereby, and the title of the cause or matter in which the judgment, decree, order or rule has been obtained or made, and the date of the judgment, decree, order or rule, and the amount of the debt, damages, costs or moneys thereby recovered or ordered to be paid, shall be left with the Registrar General, who shall forthwith enter the same particulars, together with the year and the day of the month when the memorandum or minute is so left with him, in a book… and all persons shall be at liberty to search the same book on payment of the sum of…
8. Every judgment to be registered in the manner directed by this Act shall entitle the creditor, by virtue of the judgment, decree, order or rule, to the same remedies in equity against the lands charged by virtue of this Act, or any part thereof, as he would be entitled to in case the person against whom the judgment, decree, order or rule has been so entered up had power to charge the same lands, and had by writing under his hand agreed to charge the same with the amount of the judgment debt, or the amount made payable by the decree, order or rule, and interest thereon.” (my emphasis)
Two important points to note about section 7 and 8 of ROCA are, first, the equitable judgment charge created by section 5 of ROCA, once registered as provided for in section 7 counts as notice in respect to all subsequent dealings with both the legal and equitable title of the lands subject to the judgment charge.
By virtue of such notice, the judgment charge, once registered takes priority over all subsequent dealings with the title to the lands subject to the charge.
Second, the statutory priority created by a registered judgment charge was not made the exclusive remedy available to the holder of a section 5 judgment charge. Nor was it stated to have replaced any other remedy open to the holder of a section 5 judgment charge.
That being the case, while the non-registration of a judgment charge, under section 7, meant that it could not be enforced against purchasers, mortgagees,...
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