First Caribbean International Bank (Barbados) Ltd v Jonathan Burgos

• Jurisdiction: Belize
• Judge: Hondora, J.
• Judgment Date: 16 September 2024
• Docket Number: CLAIM No. CV 66 of 2007
• Court: Supreme Court (Belize)

BETWEEN:

First Caribbean International Bank (Barbados) Limited

Applicant

and

Jonathan Burgos

First Respondent

Emilcar Burgos

Second Respondent

Registrar of Lands

Interested Party

CLAIM No. CV 66 of 2007

IN THE SENIOR COURTS OF BELIZE

IN THE HIGH COURT OF BELIZE, A.D. 2023

Writs of execution — Whether a CPR 55 order for the sale of land is a writ of execution — CPR 46.1 — Whether absent renewal, a CPR 55 order for the sale of land lapses after twelve months — CPR 46.10(1) — Legality of sale of land pursuant to a lapsed CPR 55 order for the sale of land — Requirements to be satisfied to secure further directions on order for sale of land — CPR 55.6 — Requirements to be satisfied to secure an order nominating an alternative person to sign land transfer documents — Section 179 of Senior Courts Act, 2022 — Duty of candour in ex parte applications — Process servers — Validity of service by a process server with a potential or real conflict of interest

Appearances:

Mr. Jaraad Ysaguire for the Applicant

No appearance for the Respondents

Mr. Jhawn Graham for the Registrar of Lands

Hondora, J.

1 In 2007, the applicant obtained a default judgment for a specified sum of money against the first and second respondents. In 2009, the applicant sought and was granted an order for the sale of the second respondent's land. In August 2023, the applicant sold the second respondent's land pursuant to the 2009 court order. Now, in an ex parte application filed on 24 April 2024, the applicant seeks:

• (a) further directions, pursuant to Civil Procedure Rule ( CPR) 55.6, relating to its sale of the second respondent's land; and

• (b) an order, pursuant to section 179 of the Senior Courts Act, 2022, nominating and authorising the Registrar of the High Court to sign documents required to effect transfer of the second respondent's freehold title to the alleged purchasers of his land.

2 I shall refer to (a) the First Caribbean International Bank (Barbados) Limited, the claimant in the main matter, as the applicant; and (b) Jonathan Burgos and Emilcar Burgos, the defendants in the main matter, as the first and second respondents.

3 In my consideration, this case turns principally on:

• (a) whether the applicant's use of this court's 23 December 2009 CPR 55 order to sell the second respondent's property on or around 26 August 2023 was lawful;

• (b) whether the applicant has satisfied the requirements for an order under CPR 55.6 for further directions relating to the applicant's sale of the second respondent's property; and

• (c) whether the applicant has satisfied the requirements for an order under section 179 of the Senior Courts Act, 2022 nominating and authorising the Registrar of the High Court to sign documents necessary to effect the legal transfer to the alleged purchasers of the second respondent's freehold title.

I. Chronology

4 On or around 20 May 2004 the applicant, a financial institution, entered into a loan agreement with the first and second respondents for the sum of $66,500. The loan amount carried an annual interest rate of 14.68%. Although the exact dates are not provided, the respondents fell into arrears after repaying $62,086.54 towards the loan amount.

5 On 20 June 2007 the applicant secured through the court office a default judgment against the respondents. The terms of the default judgment were as follows:

“The…defendants not having acknowledged service of the Claim Form and Statement of Claim, it is this day adjudged that the Claimant recover against the Defendants the sum of $31,588.87 with interest on the outstanding loan principal sum of $15,538.35 at the rate of 14.68% per annum or $6.25 from the 18 ^th June, 2007 until payment and costs to be taxed or agreed.”

6 On 23 December 2009 the applicant secured the following CPR 55 order from the then Registrar of the High Court, i.e.:

• “(1) The freehold property situate at Ann Gabourel Registration Section, Block 1, Parcel 18 belonging to the Second Defendant be sold with vacant possession free from all claims on the Second Defendant and of all persons claiming through him by public auction by Fitzgerald Joseph;

• (2) The Claimant's attorney shall have the conduct of the said sale;

• (3) Reserve price for the said freehold property is fixed at $40,000.00 and the remuneration of the auctioneer shall be 5% of the sale price together with expenses reasonably incurred in attending to the same;

• (4) In default of sale by public auction the Claimant shall have the right to sell the said property by private treaty at a price not far below the reserve price;

• (5) The Defendant do pay to the Claimant costs of this application to be subject to detailed assessment in default of agreement.” [Emphasis added]

7 In my judgment, the applicant's 2009 application did not satisfy the requirements necessary for a CPR 55 order for the sale of land.

8 CPR 55.2 provides:

“An application for an order for sale must be supported by affidavit evidence.

• (2) The evidence under paragraph (1) must -

  • (a) identify the land in question; and

  • (b) state -

    • (i) the reason for seeking an order for sale;

    • (ii) the grounds on which it is said that the court should order a sale of the land;

    • (iii) the full names and addresses of all persons who to the knowledge or belief of the applicant have an interest in the land;

    • (iv) the nature and extent of each such interest;

    • (v) the proposed method of sale and why such method will prove most advantageous;

    • (vi) any restrictions or conditions that should be imposed on the sale for the benefit of any adjoining land of the judgment debtor; and

    • (vii) whom it is proposed should have conduct of the sale; and

  • (c) exhibit a current valuation of the land by a qualified land valuer or surveyor.”

9 The applicant's pleadings did not set out any grounds justifying the issuance of a CPR 55 order for the sale of the second respondent's land beyond the fact that it had obtained the 2007 default judgment order.

10 The applicant was required to, but did not, plead or evidence that it was “ necessary or expedient that the [second respondent's] land be sold” in satisfaction of the judgment debt ( CPR 55.1(b). The applicant loaned the respondents $66,500 to purchase a motor vehicle. As of the date of the default judgment, the respondents had repaid $62,086.54 of the loan amount. A reasoned judgment was required to explain why it was “necessary or expedient” for the second respondent's land to be sold in satisfaction of the judgment debt as opposed to the seizure and sale of the motor vehicle, which the respondents purchased with the proceeds of the loan they obtained, and which was listed in the loan agreement as security for the said loan. In its application, the applicant did not aver that the motor vehicle had been damaged or that the respondents had sold it.

11 In addition, it is peculiar that the application was supported by affidavits provided by the applicant's lawyer and Mr Joseph, an auctioneer and not any affidavit deposed by any of the applicant's authorised officers who are the only persons who could, at law, properly attest to the amount due and owing by the respondents as of the date of the application for the sale of the second respondent's property. The applicant's lawyer's averments on the amounts due under the loan agreement were at best inadmissible hearsay.

12 In addition, it does not appear that there was any current valuation of the property (as of 2009) that was attached to the application for that CPR 55 order.

13 Further, in its 2009 application for the sale of the second respondent's land, the applicant did not make any averments regarding the existence, if any, of any third parties that may have had “an interest in the [second respondent's] land” ( CPR 55(3). In addition, the Registrar did not issue directions mandating the applicant to declare its knowledge and to serve its application on any third parties. Yet, the Registrar's 23 December 2009 order affirmed that the applicant was entitled to dispose of the second respondent's property “ free from all claims on the second defendant and of all persons claiming through him.” In my view, the then Registrar fell into error in issuing the 23 December 2009 CPR 55 order. The Registrar had not received any evidence relating to third parties' rights to and interests in the second respondent's property. In the circumstances, it was not open to the Registrar to rule that the property could be sold free from third-party claims. In its 24 April 2024 application as supplemented by submissions, the applicant argued that there was no appeal against the 23 December 2009 order. However, that is neither here not there.

14 Assuming that, as of 23 December 2009, there were, as a matter of fact, no third-party interests or claims impacted by the CPR 55 order, the same is no longer true since the second respondent who is the owner of the property that was sold but has not been transferred is now deceased. The 23 December 2009 order did not extinguish the second respondent's real rights over his land, and these have devolved by operation of law to his estate (see section 4 of the Administration of Estate Act, Cap 197).

15 That said, nearly fifteen (15) years later, i.e., on 24 April 2024 the applicant applied for an order on the following terms, that:

“The Court give further directions for the sale of land of ( sic) the second Respondent to grant authority to the Registrar of the High Court to execute the transfer of the land form (sic)for the property sold in accordance with the Court Order dated 23 ^rd December, 2009(sic).” [Emphasis added]

16 I note for emphasis that it is the applicant's case that it sold “ the [second respondent's] property in accordance with the Court Order dated 23rd December 2009.” This assertion is relevant to the questions (i) whether the applicant did in fact sell the...