Suzette Dyer v Lashanda Thurston

• Jurisdiction: Bahamas
• Judge: Madam Justice Carla D. Card-Stubbs
• Judgment Date: 18 September 2024
• Docket Number: MTG/APP/NO.00035/22
• Court: Supreme Court (Bahamas)

Between

Suzette Dyer

Appellant

and

Lashanda Thurston

Respondent

Before:

The Honorable Madam Justice Carla D. Card-Stubbs

MTG/APP/NO.00035/22

IN THE SUPREME COURT

CIVIL APPEAL DIVISION

Civil — Appeal — Conveyance — Magistrate's Court — Unstamped Conveyance — Whether magistrate erred in allowing unstamped Conveyance into evidence — Section 18 of the Stamp Act — Section 38 (G) and (H) of the Value Added Tax Act, 2019 (as amended) — Transitional Provisions — The operation of stare decisis — Power of court to subpoena/summon witnesses.

Appearances:

E. Raphael Moxey for the Appellant

Mario Gray for the Respondent

Introduction

1 This action concerns an appeal from a judgment of Stipendiary & Circuit Magistrate delivered on 21 September 2022. The learned Magistrate awarded the Respondent/Plaintiff the sum of $380.00 and made an eviction order requiring the Appellant/Defendant to vacate an apartment on a parcel of land located on Johnson Road on the island of New Providence (“the subject property”).

2 On 25 September 2022 the Appellant filed a Notice of Appeal of the decision of the learned Magistrate on the following grounds:

• a. That the learned Magistrate erred in accepting into evidence, and relied upon, a purported Conveyance which was unstamped and unrecorded and (b) ambiguous in its contents;

• b. That the learned Magistrate failed to subpoena and bring before the Court the maker of the purported conveyance to be examined after a request was made for his attendance; and

• c. Any other ground(s) which arise(s) upon receipt of the ruling and transcript.

Background

3 Pursuant to a Summons filed 1 April 2022, the Respondent/Plaintiff claimed rental arrears in the amount of $380.00 and an order requiring the Appellant/Defendant to vacate the premises on the subject property.

4 The Appellant denied the assertion that the Respondent was the rightful owner of the property and denied the claim.

5 In order to prove ownership, the Respondent produced and sought to rely upon a Conveyance of the property form the previous owner to herself, which conveyance was dated 30 January 2021.

6 Counsel for the Appellant raised a preliminary objection to the Respondent's use of the conveyance. Counsel objected on the ground that the conveyance which was being used as evidence that the Respondent was the legal owner of the subject property was unstamped and unrecorded and was therefore not to be accepted into evidence. Counsel for the Appellant based his objection on Section 18 of the Stamp Act (Ch.370).

7 The learned magistrate ruled that the Respondent's conveyance could be produced into evidence during trial although it was unstamped. This was on the basis that Section 18 of the Stamp Act had been revoked and was not applicable.

8 The learned magistrate held the following at paragraphs 2 and 3 of his judgment:

On the 27 ^th July, 2022 the court ruled that the plaintiff's conveyance could be pleaded in evidence during a trial even though it was unstamped. In 2019, stamp duty was replaced by the statutory tax regime of Value Added Tax on real property transactions at the previous stamp rates (i.e. 2.5% on transactions below $100,000 and 10% on transactions above 100,000). The court also relied on a transitional provision in the Value Added Tax ( Amendment) Act, 2019 which provides “Any instrument executed before the commencement of this Act which, by virtue of the provisions of this Act, is an instrument of the supply of real property shall be subject to the provisions of this Act, where the instrument has not been stamped under the provisions of the Stamp Act (Ch. 370)” The conveyance by way of deed of gift between Hubert Thurston to Leshanda Thurston was executed in January 2021 and was not stamped under the provisions of the Stamp Act.

The Court is satisfied that the deed of gift between Hubert Thurston and the Plaintiff is classified under the act as an instrument of supply for real property. As the instrument was unstamped the court is of the view that the conveyance falls under the mentioned provisions of the VAT Act. In the principal act there is no provision which requires the document to be stamped before it may be admissible as evidence in a court. The court is of the view that as there is no mirror [of] s 18 provisions in the VAT Act, the Plaintiff can use the deed of gift as evidence in these proceedings. Accordingly, the Court finds no merit in the preliminary objection raised by the Defendant, it is refused. The trial is to commence.”

9 The Appellant, wishing to test the authenticity of the conveyance, requested that the Court issue a summons to the alleged drafter of the conveyance, Mr. Michael Saunders for the purpose of giving evidence in the matter. Due to inadvertence on the part of the court, this was not done. The Appellant called no other witness.

GROUNDS OF APPEAL

Ground 1(a)

10 This court must determine whether the learned magistrate erred in admitting an unstamped and unrecorded conveyance into evidence.

Parties' Submissions

Appellant

11 The Appellant argued that that the learned Magistrate failed to take into consideration sections 18 and 19 of the Stamp Act. They submitted that the learned Magistrate allowed for the Respondent an opportunity to have the document stamped and recorded and to produce same at the next adjourned date. However, the Respondent did not have the document stamped and recorded, such failure said to be due to financial constraints. as such the learned Magistrate ought not to have allowed the document into evidence.

12 The Appellant further submitted that section 38G of the VAT Amendment Act requires that before the conveyance could be entered into evidence it must be stamped and recorded.

Respondent

13 The Respondent argued that there is no dispute that the conveyance was unstamped and unrecorded. However, the Respondent submitted that the VAT Act, as amended, replaced the Stamp Act and was followed by the VAT Amendment Act 2022. The Respondent submitted that the learned Magistrate was correct in that the VAT Act held no provision which required property documents to be stamped and recorded prior to its admittance into evidence.

14 The Respondent argued that the Appellant failed to raise any issues with regards the VAT Amendment Act 2022.

15 The Respondent submitted that at the time that the matter was commenced in the court below, the VAT Amendment Act 2022 had not yet come into force and that the statute could not have a retroactive effect, without clear wording to that effect in the provisions of the statute. The Respondent relied on the case of Wilson v First County Trust Ltd [2003] UKHL 40 for this point.

Admissibility into evidence of an unstamped document

16 Prior to the entry into force of the Value Added Tax Act (‘VAT’) 2014, Sections 18 and 19 of the Stamp Act dealt with the admissibility into evidence of an unstamped document. Those sections provide:

• 18. No instrument which is required by any Act to be stamped shall be pleaded or given in evidence in any court unless the said instrument shall be duly stamped and the stamps thereon cancelled, except as hereinafter provided.

• 19. (1) Upon the production in evidence in any court or judge's chambers of any instrument required by any Act to be stamped which is not duly stamped and the stamps thereon cancelled, the judge or presiding magistrate may impose a penalty of five hundred dollars on the person required by any Act to stamp the said instrument and on payment thereof together with the stamp duty, or upon payment of the stamp duty only at the discretion of the judge or presiding magistrate, by such person or by the party producing such instrument the said instrument shall (saving all just exceptions on other grounds) be admissible in evidence. The judge or presiding magistrate may, in his discretion, grant any adjournment necessary for the proper stamping of any instrument.

17 Therefore, pursuant to sections 18 and 19 of the Stamp Act, an unstamped instrument was not admissible into evidence unless its presentation was accompanied (and cured) by the procedure set out in section 19. This procedure involved the imposition of a penalty and payment of the stamp duty (or at the discretion of the judge or magistrate, payment of the stamp duty only). The procedure therein set out sought to cure the omission (i.e. the failure to stamp the document). Only after such a procedure where the consequence was to have pay the stamp duty and have a stamped document, could the document be entered into and received into evidence.

18 The Value Added Tax Act, No. 32 of 2014 (“the principal act”) overtook the regime for the stamping of conveyances and for real property transactions. Since its enactment the principal act has seen several amendments.

19 In two such amendments, VAT Amendment Acts of 2019 and of 2021, transitional provisions were included for instruments that did not comply with the Stamp Act prior to the coming into force of the principal act. Unstamped instruments were captured under the section 27 (2) of the principal act which reads:

27 (2) Any instrument executed before the commencement of this Act which, by virtue of the provisions of this Act, is an instrument for the supply of real property shall be subject to the provisions of this Act where the instrument has not been stamped under the provisions of the Stamp Act (Ch.370).”

20 Before 2022, there was no express provision in the principal act which mirrored Section 18 of the Stamp Act. Therefore, although the VAT Act addressed the imposition of a statutory fee/duty, there was no provision which explicitly addressed the effect of producing an unstamped document in evidence.

21 Effective July 1, 2022 the principal act was amended to include the insertion of Sections 38G and 38J. The relevant amendment provides:

“The principal Act is amended by the insertion,...