Castaways Developments Ltd Defendants/Appellants v Castaways Hotel Ltd Hakim E.F. Gordon in His Personal Capacity and in His Capacity as Personal Representative of Estate Clara Marguerite Gordon Deceased Plaintiff/Respondent [ECSC]

JurisdictionCaribbean States
CourtEastern Caribbean Supreme Court
JudgeACTING CHIEF JUSTICE
Judgment Date20 Mar 1973
Neutral Citation[1973] ECSC J0320-2
Docket NumberCivil Appeal No. 2 of 1972
[1973] ECSC J0320-2

IN THE COURT OF APPEAL

Before:

The Honourable the Acting Chief Justice

The Honourable Mr. Justice St. Bernard

The Honourable Mr. Justice Louisy (Ag.)

Civil Appeal No. 2 of 1972

Between:
Castaways Developments Limited
Defendants/Appellants
and
Castaways Hotel Limited

and

Hakim E.F. Gordon in His Personal
Capacity and in His Capacity as
Personal Representative of Estate
Clara Marguerite Gordon Deceased
Plaintiff/Respondent

K. Alleyne, Q.C. and B. Alleyne for appellants

F. Degazon for respondent

CECIL LEWIS, C.J.(Ag.)
1

The respondent instituted two suits in the High Court of Dominica. The first was Suit No. 70 of 1969 in which Christianie Burke, Castaways Developments Ltd., and Castaways Hotel Ltd. were the defendants. The second was suit No. 188 of 1971 in which Christianie Burke, Edwin Lionel Pinard, Daphne Taylor, Castaways Developments Ltd. and Castaways Hotel Ltd. were the defendants. These suits were consolidated by an order of Renwick J. dated December 7, 1971.

2

In the first suit the respondent sued in his personal capacity and in the second as a personal representative of his mother Clara Marguerite Gordon. His claims for relief in the two suits overlap somewhat. He alleges in his statement of claim in each suit that he is one of the reversionary owners of the fee simple of an area of land knownas Mero Estate, and among his claims for relief is a claim for a declaration to this effect. He also claims that Christianie Burke who is a defendant in both actions made a "tortious conveyance of the said Mero Estate to the defendant Edwin Lionel Pinard" who in turn disposed of 4.58 acres thereof to Daphne Taylor and another portion to the appellant Castaways Developments Ltd. In addition to his claim for the declaration referred to above the respondent asked for further relief including the cancellation of various indentures listed in the statement of claim in the second suit, recovery of possession of Mero Estate, an order that accounts be rendered by the several defendants in the two suits in respect of this estate, an injunction to restrain them from dealing with the said estate, the appointment of a trustee and receiver of the estate and damages in the sum of $5m.

3

The "tortious conveyance" to Edwin Lionel Pinard referred to above, is a conveyance made on May 29, 1952 by Christianie Burke to Edwin Lionel Pinard of the Mero Estate for £1200 in which she claimed to convey as beneficial owner.

4

In suit No. 70 of 1969 the appellant Castaways Developments Ltd. pleaded that an objection in limine would be taken that the respondent "has not sufficient interest to maintain the suit", and in suit No. 188 of 1971 a similar plea was put forward in its defence. This preliminary issue was argued before the trial judge who made an order that the respondent "has sufficient interest and has alocus standi to pursue his claim".

5

The relevant facts which give rise to this appeal are as follows: Francis Thomas Burke was indebted to George James Christian in the sum of £120 and in 1894 he executed a mortgage in his favour, on the Mero Estate and the Cassada Garden Estate as security for the said loan. In 1913 this loan with interest thereon was still unpaid. Burke had borrowed the sum of £100 from one A.D. Riviere in 1909 and executed a second mortgage inhis favour on the Cassada Garden Estate as security for this loan. This sum and the interest thereon were still unpaid in 1913 and it was agreed between Burke and Christian that Burke would sell the Mero Estate to Christian for £584 out of which Christian would repay the loan due to himself and also the mortgage debt due to A.G. Riviere. It was further agreed that an annuity of £25 would be paid to Burke and this was secured by a bond entered into by Christian and one Thomas Howard Shillingford.

6

In consideration of the aforesaid premises and in further consideration of the love and affection which the said George James Christian bore to Margery Burke and Christianie Burke, Peter Charles Christian, Clara Christian and Maude Christian, Francis Thomas Burke at the request of George James Christian conveyed Mero Estate to Thomas Howard Shillingford in fee simple on March 18, 1913 to hold the same as trustee "to the uses following":

"1. The Trustee, his heirs, or executors shall remain in possession of the said lands, hereditaments, and premises during the lifetime of Francis Thomas Burke, or until the said Margery Burke and Christianie Burke shall attain their majority (or marry) or whichever event, the death of thesaid Francis Thomas Burke, or the majority or marriage of the said Margery Burke and Christianie Burke shall happen later.

2. The said Trustee shall manage, superintend the management, or lease the said Estates or Plantation, whichever he may deem expedient and shall in no case be liable for impeachment for waste.

3. From the rent or net profits of the said hereditaments, the said Trustee shall pay and satisfy the amount which by Bond he the said George James Christian and the said Trustee have bound themselves to pay to the said Francis Thomas Burke; and from any balance which may remain, shall at his discretion pay the whole or such part thereof...

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