Nassibou Butler Henry Browne (Administrators of the Estate of Hubert Phipps Deceased) Claimants v St. Kitts-Nevis-Anguilla National Bank Ltd 1st Defendant Clive Browne 2nd Defendant Michelle Rochester-Woodley 3rd Defendant [ECSC]
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Thomas J |
| Judgment Date | 08 June 2012 |
| Judgment citation (vLex) | [2012] ECSC J0608-1 |
| Court | High Court (Saint Kitts and Nevis) |
| Docket Number | CLAIM NO. SKBHCV2011/0003 |
| Date | 08 June 2012 |
IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CLAIM NO. SKBHCV2011/0003
Mr John Cato for the Claimants
Mr J. Emile Ferdinand and Ms Keisha Spence for the First Defendant
Ms Constance Mitcham for the Second and Third Defendants
In a Claim Form filed on January 06, 2011, the Claimants, Nassibou Butler and Henry Browne (Administrators of the Estate of Hubert Phipps, deceased) claim against the then Defendant 1 the following: payment of the sum of $650,000.00 and all other monies standing to the credit of the said Hubert Phipps, deceased held in an account at the Defendant's bank; a declaration that all the monies standing to the credit of the said Hubert Phipps, deceased at the Defendant's bank form part of the estate of the said deceased and are payable to the Administrators of his said estate. Also claimed are interest, costs and such further or other relief as may be just.
It is the Claimants pleading that the deceased, being a customer of the Defendant's bank, operated a savings account (No. 29– 28615) on which he alone deposited and withdrew money on a regular basis. It is further pleaded that as far as it is known to the Claimants the deceased made no testamentary disposition in relation to the said account or to any monies held in the said account.
At paragraph 6 of the Statement of Claim it is contended that in or about December 2005 Vilma Phipps and Renrick Colville Phipps, the then Administrators of the estate of the deceased, in their capacity as such wrote to the Defendant giving notice of their intention to close the said account by the withdrawal of all monies held therein and to open a new account in the name of the Administrators for further distribution to the persons entitled under the resulting intestacy.
It is pleaded by the Claimants that the bank, in response to an inquiry regarding the said account, confirmed its existence but went on to say that the account did not form part of the Hubert Phipps' estate and as such could not be disclosed to or discussed with the Administrators of the estate of the deceased. According to the Claimants, by reason of the bank's refusal and withholding the said monies from the Administrators they are unable to wind up the said estate and distribute the said monies among the beneficiaries entitled thereto.
In its defence the First Defendant admits that during his lifetime the deceased Hubert Phipps opened a savings account at the bank and deposited and withdrew money from that account regularly. But there is no admission that the deceased was the sole owner of the account and beneficial owner of all monies deposited therein for the following reasons:
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a) when the deceased opened the said account on 11/3/94 the deceased indicated that the account was in trust for (T/F) a Michelle Rochester;
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b) On 11/7/99 the deceased updated the name of the name of the beneficiary per marriage certificate issued in the City of New York #X96006342 to read 'Michelle Antoinette Rochester Woodley', and
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c) On 2/9/2001 a second beneficiary (Clive Browne) was added to the account documentation or the authority of the deceased.
It is however admitted by the First Defendant that, as far as it is aware, no other person could have withdrawn monies from account No. 29– 28615 other than the deceased during his lifetime.
At paragraph 8 and 9 of its defence, the First Defendant pleads thus:
"8. The Defendant admits paragraphs 8 and 9 2 of the Statement of Claim. The Defendant further states that Solicitors acting for the beneficiaries named in relation to the said trust account have also contacted the Defendant asserting entitlements to the monies in Account No. 29–28615.
9. Faced with the conflicting claims to the monies in the said bank account, the Defendant is not willing to pay out the said monies unless and until the Court determines which of the various competing Claimants to the said monies are properly entitled to receive the said monies".
The Second Defendant admits that during his lifetime the deceased, Hubert Phipps opened a savings account to which he deposited and withdrew money on a regular basis. However, he does not admit that the deceased was the sole beneficial owner of all the monies deposited in the said account for the various reasons pleaded.
The Third Defendant's defence is in terms similar to that of the Second Defendant in that there is no admission that the deceased was the sole beneficial owner of all the monies deposited in the savings account which he opened at the bank. In this regard various reasons are pleaded.
At paragraph 9 of the defence the following is pleaded:
"9. In response to paragraph 13 of the Statement of Claim the 3 rd Defendant repeats paragraphs 3, 4 and 5 of this Defence and reiterates that the monies in the said account is the property of the beneficiaries named on the account, the 2 nd and 3 rd Defendant and does not form part of the deceased's estate".
In their reply the Claimants advance a number of reasons to support their contention that the deceased was in fact the sole owner of the account and beneficial owner of all the monies deposited in the said account. Further, at paragraph 4 of the said Reply it is pleaded that at paragraph 9 and 12 of the Defence evince a tacit admission by the Defendant that it is in doubt as to whether the monies on the account No. 29– 28615 are trust funds.
The issue for determination is whether a trust was created with the Second and Third Defendants as beneficiaries with respect to the monies in account No. 29– 28615 at the St. Kitts-Nevis-Anguilla National Bank Limited; or whether such monies form part of the estate of Hubert Phipps, deceased.
The basic submission on behalf of the Claimants is that the monies standing to the credit of Hubert Phipps, deceased in account No. 29– 28615 belonged to the estate of the deceased, notwithstanding the presence of the names of Second and Third Defendants 'alongside' the name of the deceased.
Other submissions on behalf of the Claimants are in these terms:
"… [B]oth at Common Law as well as by Statute Law (The Trusts Act of Saint Christopher and Nevis) militate against payment of the monies to any person or persons other than the Administrators of the Estate of Hubert Phipps, deceased. The deceased was the owner of the account at all material times. He exercised total control over the funds in the account to the exclusion of both Second and Third Defendants. On this view of the facts, a valid trust can only arise if Hubert Phipps himself had declared in some form or other, that he was holding the monies in the account for the persons named by the bank whose names alongside the name of Hubert Phipps. No such thing happened. There is no evidence in writing or by parol or otherwise that Hubert Phipps made such a declaration. Such evidence as there is as presented by the Defendant bank shows that the bank attempted to constitute itself as an agent for Mr Phipps, the sole owner of the account, and purported to create a trust of the monies in the account for benefit of the Second and Third Defendants by the addition of the meaningless letters 'T/F' which they now interpret to mean 'in trust for'. But this law does not give recognition in any form to such a procedure"
The fact of the First Defendant being a party to these proceedings arises by virtue of the fact that it is the custodian of certain monies which constitute the subject matter of the said proceedings.
The submissions on behalf of the First Defendant, for the most part, seek to explain the context and legal circumstances.
Part of the circumstances is that if the case involves a trust for (T/F), trustee and trustee turned Claimant. The latter aspect arises because the Trial Bundle, at pages 43 and 44, shows an instrument appointing the First Claimant as Trustee for "the said Michelle Antoinette Rochester-Woodley and Clive Browne of the said monies of an account No. 29– 28615 at the St. Kitts-Nevis-Anguilla National Bank".
Under cross examination by learned counsel for the First Defendant, the First Claimant indicated that the said instrument was prepared by him.
The submissions on behalf of the First Defendant read in part as follows:
"3.1 Confronted with conflicting claim to ownership of, and alleged entitlement to, the monies in the aforesaid bank account, and a paucity of documentation decisively determining the issue, the 1 st Defendant considered it prudent to await a determination of the Court that would conclusively resolve the issue concerning the competing claims to entitlement and ownership.
3.2 If the 1 st Defendant had been provided with appropriate further documentation from or on behalf of any of the competing claimants which more clearly evidenced the operational terms of the trust arrangement, it may have been possible for the 1 st Defendant to permit the withdrawal of the account monies in conformity with such further documentation. However, no such decisive documentation was ever provided to the 1 st Defendant by any of the claiming parties. In the absence of any such clear documentation, it is respectfully submitted that the 1 st Defendant acted properly in deciding to await a judicial determination of the various parties' entitlement in the matter.
3.3 It would have been a difficult decision, with substantial potential liability exposure, for the 1 st Defendant to seek to...
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