Annischka Holmes-Moncur v Norma Williams

• Jurisdiction: Bahamas
• Judge: Madam Justice Charles, JA
• Judgment Date: 31 July 2023
• Neutral Citation: BS 2023 CA 115
• Court: Court of Appeal (Bahamas)
• Year: 2023
• Docket Number: SCCivApp. No. 8 of 2023

BETWEEN

Annischka Holmes-Moncur (In her personal capacity and as Executor of the Estate of Yvonne Marie Williams)

Intended Appellant

and

Norma Williams (In her personal capacity and as Administrator of the Estate of Zerline Mildred Williams)

Intended Respondent

BEFORE:

The Honourable Mr. Justice Isaacs, JA

The Honourable Mr. Justice Evans, JA

The Honourable Madam Justice Charles, JA

SCCivApp. No. 8 of 2023

COMMONWEALTH OF THE BAHAMAS

IN THE COURT OF APPEAL

Civil Appeal — Real Property — Conveyancing — Application for extension of time to appeal — Judicial discretion — Exercise of discretion — Matters to be considered — Length of delay — Reasons for delay — Prospect of success — Prejudice — Whether the Judge failed to consider or give specific weight to the facts and evidence — Whether there was a procedural irregularity and miscarriage of justice by not converting Originating Summons to a Writ Action — Whether the Judge's determination that a constructive trust exists at the time of purchase of property is unreasonable — Whether Ruling is perverse or manifestly unsafe or unsatisfactory Rule 9 &11 of the Court of Appeal Rules

Zerline Williams was the mother of two daughters, the Intended Respondent and Yvonne Williams. Both Zerline and Yvonne are deceased. The Intended Appellant is the daughter of Yvonne and niece of the Intended Respondent. By a conveyance dated dated 30 June 1975, Zerline and Yvonne purchased a property (the subject of this dispute) to hold in fee simple as tenants in common. In that same year, the Intended Respondent and her five children, Yvonne and her five children and Zerline moved into the property. Zerline died intestate on 8 September 2010. She was survived by her daughters Yvonne and the Intended Respondent; the latter was granted Letters of Administration as Administrator of her Estate. Yvonne died on 11 May 2019. By her Will dated 4 December 2014, she devised her interest in the property solely to the Intended Appellant who was subsequently granted a Certificate as to Grant of Probate. A dispute arose about each party's respective entitlements to the property.

Since the dispute could not be resolved amicably, on 4 May 2021, the Intended Appellant filed an Originating Summons in the Supreme Court, seeking, inter alia, a declaration that she is the fee simple owner of 75% of the property and that the Intended Respondent is entitled to 25%.

Lewis-Johnson J heard the Originating Summons and found that, despite the fact that when the property was purchased and the conveyance was only in the name of Zerline Williams and Yvonne Williams as tenants in common, a constructive trust exists and was created at the time of the purchase of the property. She concluded that Zerline, Yvonne and the Intended Respondent, each had a one-third interest in the property. She further found that the Intended Appellant and the Intended Respondent are entitled to 50% legal and beneficial interest in the property.

The Intended Appellant is unhappy with the Judge's decision and seeks the leave of this Court to extend the time within which to file and serve her Notice of Appeal. The Intended Appellant's proposed grounds of appeal are that that the Judge committed a procedural irregularity by not converting the Originating Summons to a Writ Action when there were substantial factual disputes; the Judge failed to consider the evidence which was not tested by way of cross examination, there was no documentary evidence which supported the Intended Respondent's claim of constructive trust and the Intended Appellant was not given an opportunity to cross-examine the allegations of the Intended Respondent and her witnesses.

Held: The application for an extension of time within which to appeal is refused. Costs to the Intended Respondent, to be taxed if not agreed.

The four factors to be considered when hearing an application for an extension of time for leave to appeal, are the length of the delay, the reason for the delay, the prospect of success on appeal and prejudice, if any, to the Intended Respondent.

Notwithstanding that the delay is not inordinately long and the reason for the delay is satisfactory, the Intended Appellant's proposed grounds of appeal have no merit and consequently, no prospects of success.

The trial Judge cannot be faulted for not exercising her discretion under Order 28 Rule 8, which is discretionary and not mandatory. The Originating Summons was initiated by the Intended Appellant, who made no request to convert the Originating Summons to a Writ Action. Counsel for the Intended Appellant was at liberty to make that application to the Judge.

The decision reached by the Judge that a constructive trust exists and was created at the time of the purchase of the property was not unreasonable. In the Court's view, the trial Judge's Ruling is not perverse, manifestly unsafe or unsatisfactory, but based on sound legal principles and a fair assessment of the evidence. There were no disputed facts before the Judge, nor did Counsel for the intended appellant seek to adduce additional Affidavit evidence or cross-examine the Affidavit evidence before the court.

Alexander Williams v R SCCrApp. No. 155 of 2016 mentioned

Flowers Development Company Limited v The Bahamas Telecommunications Company Ltd et. al. SCCivApp No. 14 of 2022 considered

Keod Smith v Coalition to Protect Clifton Bay SCCivApp No. 20 0f 2017 considered

Khan v Gajeepan and Anor [2012] EWCA Civ. 258 considered

Rodriguez Jean Pierre v Regina SCCRApp. No. 110 of 2019 considered

Rodriguez Jean Pierre v The King (Bahamas) [2023] UKPC 15 considered

APPEARANCES:

Ms. Glenda M. Roker, Counsel for the Intended Appellant

Ms. Sharanna Bodie, Counsel for the Intended Respondent

Madam Justice Charles, JA

Judgment delivered by The Honourable

1 . By Notice of Motion filed on 26 January 2023, the Intended Appellant applies, pursuant to section 11 (f) of the Court of Appeal Act, Rules 9 and 11 of the Court of Appeal Rules, 2005 and under the inherent jurisdiction of the Court for an Order that she be granted an extension of time to appeal the Judgment of the Honourable Madam Justice J. Denise Lewis-Johnson (“the Judge”) delivered on 7 December 2022 (“the Judgment”) whereby the Judge found that (i) a constructive trust exists and was created at the time of purchase in the names of Zerline Mildred Williams (“Zerline”) and Yvonne Williams (“Yvonne”) as tenants in common of a property located in the Western District of the Island of New Providence known as Stapledon Gardens and being No. 666 (“the property”) and that Zerline, Yvonne and Norma Williams (“the Intended Respondent”) each had a one-third interest in the property; (ii) Mrs. Moncur (“the Intended Appellant”) and the Intended Respondent each has a 50% legal and beneficial interest in the property and (iii) that the property be appraised and, upon such appraisal, the Intended Respondent has the option to purchase the Intended Appellant's share failing that, the property be sold and the proceeds of the sale be divided equally between the two of them.

Background

2 . This is a dispute between family members. Zerline was the mother of two daughters, the Intended Respondent and Yvonne. Both Zerline and Yvonne are now deceased. The Intended Appellant is the daughter of Yvonne and the niece of the Intended Respondent.

3 . By a Conveyance dated 30 June 1975 and recorded in Volume 2434 at pages 430 to 437 (“the conveyance”), Yvonne along with Zerline purchased the property from Anthony Adderley. By Clause 7 of the conveyance, the property was conveyed to Zerline and Yvonne to hold in fee simple as tenants in common.

4 . In 1975, Zerline, the Intended Respondent and her five children along with Yvonne and her five children moved into the property. Zerline died intestate on 8 September 2010 and was survived by Yvonne and the Intended Respondent, the latter was granted Letters of Administration as Administrator of Zerline's Estate.

5 . Yvonne died on 11 May 2019. By her Will dated 4 December 2014, she devised her interest in the property solely to the Intended Appellant who was subsequently granted a Certificate as to Grant of Probate.

6 . The Intended Respondent, her two children and two grandchildren currently reside in the dwelling house on the property and the Intended Appellant's access is being impeded.

7 . By letter dated 10 September 2020, the Intended Appellant's Attorney wrote to the Intended Respondent advising that she (the Intended Appellant) is entitled to a seventy- five per cent (75%) interest in the property.

8 . By letter dated 17 September 2020, the Intended Respondent's Attorney wrote to the Intended Appellant indicating that she was willing to meet to resolve the matter amicably.

9 . No settlement having been reached, on 4 May 2021, the Intended Appellant filed an Originating Summons in the Supreme Court, seeking, inter alia, a declaration that she is the fee simple owner of 75% of the property and that the Intended Respondent is entitled to 25%. She also sought an order that the property be sold at market value and the net proceeds divided between them in accordance with their respective interests. Alternatively, an order that either party be at liberty to purchase the other party's interest in the property at the current market price within 21 days.

10 . As previously stated, the Judge found that a constructive trust exists and was created at the time of the purchase of the property in the names of Zerline and Yvonne as tenants in common and that Zerline, Yvonne and the Intended Respondent each had a one-third interest in the property. The sole issue before the Judge was whether the Intended Respondent had acquired an interest in the property pursuant to a constructive trust thus reducing the Intended Appellant's legal interest in the property. She found that the Intended Respondent did and that both parties...