Hilary Shillingford v Angel Peter Andrew

• Jurisdiction: Caribbean States
• Judge: Anderson,Rajnauth-Lee,Barrow,Burgess,Jamadar,Mme Justice Rajnauth-Lee
• Judgment Date: 14 February 2020
• Court: Caribbean Court of Justice
• Docket Number: CCJ Appeal No. DMCV2019/001
• Date: 14 February 2020

[2020] CCJ 2 AJ S

IN THE CARIBBEAN COURT OF JUSTICE

Appellate Jurisdiction

Before

The Honourables Mr Justice W. Anderson, JCCJ

Mme Justice M. Rajnauth-Lee, JCCJ

Mr Justice D. Barrow, JCCJ

Mr Justice A. Burgess, JCCJ

Mr Justice P. Jamadar, JCCJ

CCJ Appeal No. DMCV2019/001

Dominica Court of Appeal No. 0032 of 2011

Between

Hilary Shillingford

Appellant

and

Angel Peter Andrew

1 ^st Respondent

Gloria Burnette Nee Shillingford

2 ^nd Respondent

Appearances

Mr Douglas Mendes SC, Ms Gabrielle Gellineau and Ms Cara Shillingford for the Appellant

Mr Michael E Bruney and Ms Lisa De Freitas for the First Respondent

Ms Gloria Brunette nee Shillingford, the Second Respondent, appearing in person

Judge's discretion — whether a new ground can be raised at the latest appellate stage — power of attorney — exclusive agreement — withholding proceeds of sale

JUDGMENT SUMMARY

1 Angel Peter Andrew (‘Angel’), the First Respondent, by virtue of a power of attorney, authorized his sister, Gloria Shillingford (‘Gloria’), the Second Respondent, to sell lands in Dominica on his behalf. The property was sold in May 2007 for $4.5 million. From the proceeds of sale, Gloria paid $2,564,170.20 to Angel. Gloria also paid money to Hilary Shillingford (‘Hilary’) the Appellant, pursuant to an alleged exclusive agreement between them.

2 Angel initiated a case against Gloria for the remaining funds from the sale of the property. He alleged that Gloria had told him that the lands were sold for $3 million and that he had no knowledge of the exclusive agreement. On the other hand, Gloria alleged that Angel knew of and had agreed to the exclusive agreement. By virtue of the exclusive agreement, a minimum purchase price of $3 million was set, and once the lands were sold at a price in excess of that sum, Hilary would be paid that excess as a commission.

3 This is the second appeal to be heard by this Court in relation to the disputes which arose among the parties to this case. The first appeal was commenced by Gloria against Angel., That judgment, delivered on 6 February 2019, affirmed the judgments of the courts below but only in relation to the parties to the appeal; Hilary was not party to that appeal.

4 In this second appeal, Hilary challenged the judgments of the courts below by raising two main points. The first is a pleading point raised for the first time, in which he argued that the trial judge was plainly wrong to make a finding that the exclusive agreement was a fiction or concoction. Secondly, it was submitted that the exclusive agreement was valid and granted Hilary an exclusive right to find and introduce buyers within a six-month period.

5 Cottle J, the trial judge, stated that he did not find Gloria's evidence to be credible. He roundly rejected the evidence of Hilary and Gloria that Angel had orally agreed to the exclusive contract. Their evidence did not make common sense. There were no documents or other supporting evidence of any loans to Angel, as alleged. He concluded that the payments to Hilary were made without authority and found that the exclusive agreement was nothing more than a fiction concocted to withhold proceeds of the sale of the property from Angel.

6 Baptiste JA, delivering the judgment of the Court of Appeal, expressed the view that the findings made by Cottle J were clearly open to him on the evidence and could not be said to be against the weight of the evidence. In particular, it was open to the trial judge to find that the exclusive agreement was a “fiction concocted by Hilary and Gloria in an effort to withhold from Angel a substantial part of the proceeds of his property”. The Court of Appeal affirmed the decision of the trial judge.

7 As to the pleading point, it was argued that Angel never pleaded that Hilary and Gloria had concocted the exclusive agreement in order to defraud him. It was contended that the trial judge's finding of fiction and concoction was nothing short of a finding of fraud, and allegations of fraud had to be specifically pleaded and particularized.

8 Justice Rajnauth-Lee, JCCJ, in delivering the judgment of the Court, noted that an examination of the evidence revealed that Angel's testimony was replete with responses that the evidence of Gloria and Hilary was “fiction”, “complete fiction” and “just fiction”. Angel's evidence as to the conversation which Gloria and Hilary alleged that Angel gave his consent to the making of the exclusive agreement was that “there was no such conversation and no such contract”. In Hilary's cross-examination it was put to him that he “made up” the exclusive agreement, and that he was “trying to do it in secret, clandestinely”. The Court noted that this evidence was put forward without objection, and that when Hilary and Gloria appealed to the Court of Appeal, they never included the pleading point in their grounds of appeal. The Court agreed with the Court of Appeal that it was entirely open to the trial judge on the evidence to find that the exclusive agreement was a fiction.

9 Furthermore, the Court noted that the pleading point was a new ground being raised for the first time in this appeal. The Court referenced Byron v Eastern Caribbean Amalgamated Bank (Antigua and Barbuda) 1 for the proposition that an apex court is normally reluctant to allow a party to take a fresh point at this late stage in the proceedings. In Byron, the Privy Council did allow the fresh point to be taken, noting the nature of the proceedings and the regime of the relevant legislation which allowed for flexibility. However, in the view of this Court, the present appeal raised very different issues from those in Byron. These proceedings had been ongoing since 2008. The judgment of Cottle J had been delivered since 19 October 2011. A point as basic as the pleading point ought to have been taken at the very earliest

opportunity. In the interests of justice, the Court held that it would not permit Hilary to take this fresh point

10 In the circumstances, the Court adopted its approach in the earlier appeal. The present appeal challenged concurrent findings of fact but there were no exceptional circumstances to cause the Court to review those findings of fact. Given this decision, the Court considered it unnecessary to address the issue of the validity of the exclusive agreement.

11 The Court, therefore, made the following orders:

of

The Honourable Justices Anderson, Rajnauth-Lee, Barrow, Burgess and Jamadar

Delivered by

The Honourable Mme Justice Rajnauth-Lee

on the 14 th day of February 2020

• (a) The appeal is dismissed and the judgments of the courts below are affirmed.

• (b) The Appellant shall pay the First Respondent basic costs of this appeal in the sum of $34,020.00.

• (c) There shall be no order as to costs in favour of or against the Second Respondent.

Introduction

1 This is the second appeal to be heard by the Caribbean Court of Justice (“the Court”) in relation to the disputes which arose among the parties to this case. In relation to the first appeal, the judgment of the Court was delivered on 6 February 2019. That appeal was instituted by Gloria Shillingford (the second respondent in this appeal and referred to in this judgment as “Gloria”). The respondent in the first appeal was Angel Peter Andrew (the first respondent in this appeal and referred to in this judgment as “Angel”). Hilary Shillingford (the appellant in this appeal and referred to in this judgment as “Hilary”) was not a party to the first appeal and did not seek to participate in that appeal. In the first appeal the Court made it clear that the judgments of the courts below were affirmed in relation to the parties to the first appeal only.

2 In this second appeal, Hilary seeks to have overturned the judgment of the Court of Appeal of the Eastern Caribbean Supreme Court which affirmed the decision of Cottle J, the trial judge, who had given judgment in favour of Angel. Two main issues have been raised in this appeal. The first relates to a pleading point which is being taken for the first time in this matter. Hilary contends that Angel never alleged in his pleadings that Hilary and Gloria had concocted the exclusive agreement (also “the exclusive contract”) in order to defraud him of his money. It was therefore argued that it was plainly wrong for the trial judge to make the finding that the exclusive agreement was a fiction or concoction. The second issue raised on behalf of Hilary concerned the validity of the exclusive agreement. It was submitted that the exclusive agreement was a validly subsisting sole agency contract granting Hilary the exclusive right to find and introduce buyers within a six-month period.

Background Facts

3 Briefly, this matter concerned the sale of certain lands in Dominica by Angel. Angel and Gloria are brother and sister, and Hilary is their cousin. Angel resided in the United Kingdom and therefore when he wished to sell the lands, he executed a power of attorney authorizing Gloria to sell the lands, as well as to do other things in relation to the sale. The first attempt to sell the lands, and the first agreement for sale, were aborted when the purchaser could not complete. The second agreement for sale was entered into in May 2007 and this agreement was...