Sotiaux v Cogan

• Jurisdiction: Anguilla
• Court: Court of Appeal (Anguilla)
• Judge: Liverpool J.A.
• Judgment Date: 06 June 1995
• Neutral Citation: AI 1995 CA 3
• Docket Number: Civil Appeal No. 1 of 1995
• Date: 06 June 1995

Court of Appeal

Floissac, C.J.; Liverpool, J.A.; Singh, J.A.

Civil Appeal No. 1 of 1995

Sotiaux

and

Cogan

Appearances:

Mr. I.D. Mitchell for the Appellant.

Mr. Courtney Abel for the Respondent.

Constitutional law - Repeal — Legislation — Repeal by implication — The court leans against implying a repeal of implication unless the two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time — Sections 3 and 101–105 if the Registered Land Ordinance, 1974 — Judgments Act (supplemented by Order 31 of the Rules of the Supreme Court) — There is no inconsistency between the two enactments — Judgments Act in full force in Anguilla.

Liverpool J.A.

1 This is an appeal from an Order in Chambers made by Neville Smith J. on 24th February, 1995 whereby he ordered the sale of a parcel of land held jointly by the Appellant and his wife Kathleen Sotiaux. The Respondent had applied for an Order for the sale of the Appellant's right, title and interest in the land which is entered in the proprietorship section of the register of lands of Anguilla in the name of the Appellant and his wife “as joint owners”.

2 The grounds of appeal are that –

• 1. “The learned Judge erred in holding that the Judgments Act, Cap. 37, authorises an Order for sale of a parcel of land on the application of a judgment creditor of one of the joint owners the other joint owner not being a party to any of the proceedings or consenting to the sale.

• 2. The learned Judge misdirected himself or erred in law in finding that he was bound by the decision of the Court of Appeal in St. Kitts; Civil Appeal No. 3 of 1993, Intercontinental Credit Corporation Division of Pan American Trade Development Corporation versus Irvin Boncamper.

• 3. The combined effect of sections 3 and 100 to 105 of the Registered Land Ordinance 1974 and the repeal in Anguilla of the Partition Act, Cap 275 by Ordinance No. 15 of 1980 (in the absence of any statutory authority, such as that contained in section 55(1) of the Matrimonial proceedings and Property Ordinance No. 11 of 1990) is to provide that in Anguilla, where land is owned jointly, no proprietor is entitled to any separate share in the land, and severance and dispositions may be made only with the consent of all the joint proprietors.”

3 Section 3 of the Judgments Act (Chapter 37) provides that a judgment which is entered up against any person in the Supreme Court operates as a charge upon all lands of that person within the Colony to the extent of his beneficial interest therein; but no such judgment is to affect the rights of any purchaser, mortgagee or creditor until the person entitled to the judgment has filed an application to the Court for an order for sale of that land to satisfy the judgment debt. That application must be in the form specified in the First Schedule to the Act; and it must be filed in the Registrar's Office in which the judgment is entered. Notice of the filing must be served on the judgment debtor (section 4). Finally Section 5 states that the Court may order the sale of the right, title and interest of the judgment debtor in the lands mentioned in the application, within six months of the filing of the application, or within such further time as it may allow.

4 Order 31 of the Rules of the Supreme Court supplements the provisions of the Judgments Act. The Order provides inter alia that where the Court orders that any interest in, or right over, land is to be sold, any party bound by the Order who is in possession of that land, may be compelled to deliver possession to such person as the Court may direct. The Order also provides for the manner of carrying out the sale.

5 It was submitted by learned Counsel for the Appellant that section 3 of the Judgments Act and Order 31 have both been amended by implication by the subsequent inconsistent provisions of sections 3 and 101–105 of the Registered Land Ordinance, 1974, and that consequently no provision exists in Anguilla law for the sale of the interest of a joint tenant in land except with the consent of the other joint owners. I now turn therefore to examine the relevant provisions of the Registered Land Ordinance.

6 Section 3 states that except as otherwise provided in the Ordinance, no other written law and no practice and procedure relating to land...