Inter-Continential Credit Corporation v Doncamper

• Jurisdiction: Saint Kitts and Nevis
• Judge: Liverpool, J.A.
• Judgment Date: 11 April 1994
• Neutral Citation: KN 1994 CA 3
• Docket Number: Civil Appeal No. 3 of 1993
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 11 April 1994

Court of Appeal

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

Civil Appeal No. 3 of 1993

Inter-Continential Credit Corp.

and

Doncamper

Appearances:

Mr. E. Ferdinand and Mr. D. Kelsick for the Appellant.

Dr. Henry Browne fpr the Respondent

Practice and procedure - Order for sale of land — Procedure to be followed — Judgments Act, Chap. 37.

Liverpool, J.A.

1 This is an appeal from an order of Hylton, J. made on 5th February, 1993, refusing an application for an order for sale filed by the appellant on 30th November 1992 and heard on 8th January, 1993.

2 The facts are very simple: By a writ filed on 31st July 1991 the appellant claimed against the respondent and two other defendants the sum of $70,332 49 and interest. Judgment in default of appearance in the sum of $81,241.84 and costs to be taxed was entered on 27th August, 1991; and a certificate of taxation was filed on 23rd December, 1991 in the sum of $4,943.96. A summons to set aside both the judgment in default of appearance and certificate of taxation was dismissed on 6th March, 1992. An application for an Order for Sale of a parcel of land which is held on a joint tenancy by the respondent and his wife, Idetha Boncamper was opposed by the respondent on the grounds that (1) the court ought not to do anything which would affect the interest of third parties who have not had an opportunity to be heard —this in particular reference to the other joint tenant of the land in question, and (2) no one but the joint tenants themselves can take action to sever their interests.

3 The learned Judge considered submissions made for and against the application; the cases of Irani Finance Ltd. v. Singh and us [1969] 3 All E.R. 1455, and one appeal at [1970] 3 All E.R. 199, and National Westminister Bank Ltd. v. Stockman [1981] 1 All E.R. 800; and section 37 of the Judgments Act, Chapter 37, and refused the application for the Order for Sale for the reasons that the Stockman case was distinguished from the present case, and application there was a prior charge on the land.

4 Section 13 of the U.K. Judgments Act, 1838 provided that the entry of a judgment in any of the Superior Courts at Westminister against any one should operate as a charge on all lands to which that person was entitled. The Land Charges Act, 1900, (Section 2) went further by providing that a judgment should not operate as a charge on land or any interest therein unless an order for the purpose of enforcing it was registered. Both these provisions were repeated and replaced by Section 195 of the Law of Property Act, 1925 which was in turn repealed by Section 35 of the Administration of Justice Act, 1956. Under all these provisions it was consistently held that the debtor's interest in the proceeds of sale of land subject to a trust for sale could not be sold. (See e.g. In Re No. 39 Carr Lane [1953] 1 All E.R. 699). The reason being that in both cases where land was held on trust for sale, and also where a trust for sale had been imposed by the Law of Property Act, 1925 on land conveyed to co-owners, their interests in the land had been converted to interests in the proceeds of sale, and that the...