1. Sheila Harrigan 2. Dolykin Harrigan Appellants v Kenneth Rogers Respondent [ECSC]

• Jurisdiction: Anguilla
• Judge: MATTHEW J.A.,SATROHAN SINGH,Justice of Appeal,ALBERT REDHEAD
• Judgment Date: 25 May 1999
• Judgment citation (vLex): [1999] ECSC J0525-1
• Docket Number: Civil Appeal No. 5 of 1999
• Date: 25 May 1999
• Court: Court of Appeal (Anguilla)

[1999] ECSC J0525-1

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Satrohan Singh - Justice of Appeal

The Hon. Mr. Albert Redhead - Justice of Appeal

The Hon. Mr. Albert N.J.Matthew - Justice of Appeal (Ag.)

Civil Appeal No. 5 of 1999

Between:

1. Sheila Harrigan

2. Dolykin Harrigan

Appellants

and

Kenneth Rogers

Respondent

Appearances:

Mr. Lee Moore Q.C. and Mr. C. Abel for the Appellants

Mr. S. Bennett and Mrs. M. Walwyn for the Respondent

MATTHEW J.A.

1 (Ag.)

2 This case concerns two brothers who decided to go into a business venture but shortly thereafter the relationship turned sour. The Respondent is the younger brother who, at the material time, lived in St. Thomas. Connell Harrigan was the older brother who lived in Anguilla. He was the original Defendant in a suit brought by Rogers. He died on July 17, 1994. Appellant No.1 is his daughter who was granted probate of his estate and Appellant No.2 is his Widow.

3 The facts reveal that Connell Harrigan and Kenneth Rogers agreed in 1977 and 1978 to buy a property jointly at Cauls Pond, Anguilla, Registration No.69014B Parcel 47. There was a two-storey building on the 0.45 acre of land. The lower storey belonged to Ronald Webster and the upper storey belonged to David Bergland. Each of the owners was selling his half share for U.S.$30,000 but an additional sum of $5,500 was agreed on for the purchase of equipment used in the operation of a cinema on the upper storey.

4 It is accepted and agreed that each of the brothers paid US$15,000 for the purchase of Ronald Webster's interest. It follows that U.S.$35,500 was due to Bergland for his interest. In order to pay Bergland the brothers raised a loan in that sum from Caribbean Mortgage Bank (Anguilla) Ltd and a promissory note dated January 27, 1978 which was tendered asKR3 is evidence of this. Transfer forms were executed by the Vendors and the Respondent in 1978 and the evidence is that these were ultimately given to Connell but no registration was ever effected in the name of the Respondent. For whatever reason, registration of the property was not effected before 1984.

5 According to the Respondent there were to be 96 equal monthly installments and the payments were to be made quarterly calculated at $720.24 per month. The Respondent made three quarterly payments of $1,000 the last being in November 1978. By February 15, 1979 the bank now called the Caribbean Commercial Bank (Anguilla) Ltd was complaining that the loan was not being paid in accordance with the terms. Two months later by letter dated April 24, 1979 Connell was proposing that he takes over the ownership of the property, that he would be responsible for payment of the loan and would repay Kenneth a sum of US$15,000. The relationship between the brothers deteriorated and in January 1986 the Respondent filed a writ with a statement of claim which was later amended and asking for certain relief including:-

• (a) a declaration that he is proprietor in common along with the Defendant of the property described as Block 69014 B Parcel 47 Registration section, Cauls Pond in the Island of Anguilla;

• (b) a declaration that he is and was a partner in the business;

• (c) an order for accounts to be taken of all transactions of the business.

6 The matter came beforeSaunders J for hearing on April 24 and 25, 1997 and five days later, on April 30 he gave judgment in favour of the Respondent and ordered as follows:

• 1. That the Plaintiff is the owner of a one-half undivided share of Block 69014B parcel 47, Registration Section, Cauls Pond and that the land register be rectified accordingly;

• 2. That the Plaintiff holds a half-share interest in such business or businesses as are carried on at the said property by either of the Defendants;

• 3. That the value, as a going concern, of such business or businesses be agreed by the parties hereto or assessed by a valuator to be agreed by the parties hereto, in either case withinthree months of the date hereof, and that any party be thereafter at liberty to buy out the share or shares of the others; failing such agreement any party may apply to the court for further directions as to how best to realize the assets and liabilities of such business or businesses;

• 4. That the Plaintiff's costs be borne by the estate of Connell Harrigan, deceased.

7 The Defendants were not satisfied with the decision and they filed their notice of appeal on June 5, 1997.

GROUNDS OF APPEAL

8 There were seven grounds of appeal as follows:

• 1. The Learned Trial Judge erred in law in holding that section 140 of the Registered Land Ordinance 1974 was applicable to this case when there was no pleading or proof of fraud or mistake to justify the application of the aforesaid section.

• 2. The Learned Trial Judge erred in law in giving no or no sufficient weight to the evidence of Colonel Harrigan a witness for the Plaintiff which supports the plea of rescission of the Defendant and in particular his evidence that the Plaintiff confronted Defendant on Defendant's job and demanded a refund of his money and calling the arrangement between them "quits".

• 3. The Learned Trial Judge erred in law in finding that the signing of land transfer forms by the Plaintiff meant that all that was left to be done was for the Defendant to register those said forms in the face of the fact that no evidence was led that the said transfer forms were ever signed or executed by the other necessary parties to the transaction; that is to say, the transferors and the deceased transferee, and also in the face of the actual registration of the said parcel of land in the names of the Deceased Defendant and Dolykin Harrigan on the basis of the filing and registration of duty completed land transfer forms in accordance with the provisions of the Registered Land Ordinance 1974.

• 4. The Learned Trial Judge was wrong in law in holding that the Plaintiff was entitled to be registered as owner of a one-half undivided share of the subject land in light of the clear evidence that he never completed his payment of the loan and accepted the sum of $14,000 as a refund of the moneys paid by him.

• 5. The judgment of the learned Trial Judge is erroneous in point of law to the extent that he ordered that an account be taken of the business currently carried on on the subject property without any evidence at all as the basis of such an order and against the weight of the evidence that the Plaintiff made no contribution to the business in any form and after the latter part of 1978 and that the business operations were thereafter changed.

• 6. The learned Trial Judge erred in law in failing to accept and to give full weight to the evidence of the Plaintiff that he accepted the $14,000 and deposited it to his account as"the beginning of payment for any portion of building and business" the clear inference from this evidence being that the Plaintiff himself had accepted that he was no longer to be a registered owner of any part of the building.

• 7. The learned Trial Judge erred in law in his order that the Plaintiff is the owner of a one-half undivided share in the subject property and that the land register be rectified accordingly without taking into account or giving effect to the evidence that the Defendant Connell Harrigan had made addition to the said property.

9 Ground 3 was not pursued at the hearing....