Jhawnie Gage v The Attorney General of the Commonwealth of Dominica
| Jurisdiction | Dominica |
| Judge | Baptiste JA,Michel JA,Webster JA |
| Judgment Date | 15 June 2021 |
| Judgment citation (vLex) | [2021] ECSC J0615-1 |
| Docket Number | DOMHCVAP2020/0005 |
| Court | Court of Appeal (Dominica) |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL
The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal
The Hon. Mr. Mario Michel Justice of Appeal
The Hon. Mr. Paul Webster Justice of Appeal [Ag.]
DOMHCVAP2020/0005
Mrs. Gina Dyer-Munro for the Appellants
Ms. Tameka Hyacinth Burton with her Ms. Jo-Anne Xavier-Cuffy for the Respondent
Civil appeal — Recovery of property under Proceeds of Crime Act Chap 12:29 (“POCA”) — Interim property freezing order — Whether learned judge erred in failing to consider submissions filed by appellants in the court below — Whether trial judge obliged to refer to all evidence in judgment — Indefeasibility of Title — Title by Registration Act, Chap. 56:50 — Whether the learned judge erred in that she failed to consider that second appellant held an indefeasible certificate of title — Whether in accordance with the Title by Registration Act it was open to respondent to challenge the second appellant's ownership of that property — Registration of a charge is not challenge to title — Indefeasibility of title not a bar to the issue of a property freezing order — Whether property recoverable property under POCA — Risk of dissipation — Whether there was a risk of dissipation by the appellants of the property listed in the freezing order — Material non-disclosure — Whether there had been material non-disclosure by the respondent in making application to the court for the freezing order — Privilege against self-incrimination — Whether the learned judge erred in not discharging the freezing order for breach of the appellants' privilege against self-incrimination — Extraterritoriality — Whether the freezing order should have applied to property outside of Dominica
On 19 th December 2014, the Attorney General of the Commonwealth of Dominica (“the respondent”) sought a recovery order pursuant to Part IIIA of the Proceeds of Crime Act (“POCA”) against Jhawnie Gage, Arah Paula Cecil Davis and Edgar Augustus Peltier (“the appellants”) in respect of certain items of real and personal property, including a Hummer H3 sports utility vehicle, bank accounts, and a parcel of land with a dwelling house on it at Shawford Estate.
On 23 rd December 2014, the respondent obtained an interim property freezing order (“the freezing order”) which, inter alia, prohibited the appellants from ‘disposing of, tampering with, removing from the jurisdiction or in any way diminishing the value of the property and assets’ set out therein and which imposed on the appellants an obligation to inform the Financial Intelligence Unit (“FIU”) of all of their assets, whether inside or outside the Commonwealth of Dominica, and to give the location and details of all such assets. On 27 th January 2015, the appellants filed applications to discharge the freezing order. The learned judge having heard the evidence and submissions, on 5 th January 2020, dismissed the applications.
The appellants, being dissatisfied with the learned judge's decision, have appealed to this Court, relying on fourteen grounds of appeal. The main issues that arise for determination before this Court are: (i) whether the learned judge erred in failing to consider submissions filed by the appellants in the court below in reply to the respondent's submissions; (ii) whether the learned judge erred in that she failed to consider that the second appellant held an indefeasible certificate of title to the Shawford Estate land and that, in accordance with the Title By Registration Act (“TRA”) it was not open to the respondent in this case to challenge the second appellant's ownership of that property; (iii) whether the property subject to the freezing order was recoverable property under POCA; (iv) whether there was unlawful conduct on the part of the first appellant from which the property listed in the freezing order was derived; (v) whether there was a risk of dissipation by the appellants of the property listed in the freezing order, so as to justify the grant of the freezing order in December 2014 and its continuation in January 2020; (vi) whether there had been material non-disclosure by the respondent in making application to the court for the freezing order and, if so, whether the learned judge should have discharged the order; (vii) whether the learned judge erred in not discharging the freezing order for breach of the appellants' privilege against self-incrimination by virtue of the disclosure obligations under the order; and (viii) whether the freezing order should have applied to property outside of Dominica.
Held: dismissing the appeal; and making the orders set out in paragraph 75 of this judgment, that:
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1. Per Baptiste JA and Webster JA [Ag.]: The general rule is that in delivering a judgment a trial judge is not obliged to refer to all the evidence in the trial and all the submissions of counsel. A judge does not have to deal expressly with each and every point in issue in his judgment, but where the issue is fundamental to the case, it deserves mention and an explanation for the judge's decision. It is only when the trial judge's failure to deal with material facts or legal submissions can be shown to have led to or contributed to an error in the findings that the appellate court should set aside the findings. The Court, however, undertakes a formidable task when invited to upset a judgment on this basis, as it is entitled and bound to assume that the trial judge considered all the materials before him, in the absence of compelling evidence to the contrary. In the case at bar, the learned judge had the entire record before her and in the absence of compelling evidence to the contrary, the assumption is made that she took the reply submissions into account. The learned judge's judgment does not lend itself or give rise to a reasoned belief that the learned judge forgot or ignored the reply submissions.
Watt (Or Thomas) v Thomas [1947] A.C. 484 applied; Montgomery v Lanarkshire Health Board [2015] UKSC 11 applied; Correia v University Hospital of Staffordshire NHS Trust [2017] EWCA Civ 356 applied; Ming Siu Hung and others v J F Ming Inc and another [2021] UKPC 1 applied; Piglowska v Piglowski [1999] 1 WLR 1390; Housen v Nikolaisen 2002 SCC 33 considered; Henderson v Foxworth Investments Limited [2014] UKSC 41 applied; Eagil Trust Co. Ltd v Piggot-Brown and another [1985] 3 ALL ER 119 at 122; Wakeem Guishard v The Attorney General of the Virgin Islands [2020] ECSCJ No. 327, (delivered 2 nd October 2020) applied; Cobham v Frett [2001] 1 WLR 1775 considered.
Per Michel JA: Upon a review of the learned judge's decision, it is clear that the learned judge failed to consider the submissions filed by the appellants in the court below in reply to the respondent's submissions. Given the extensive and intensive nature of the overlooked submissions and the fact that they specifically controverted the respondent's submissions upon which the learned judge appeared to have based her findings and conclusions that the freezing order should not be discharged, or at the very least relied on in arriving at her findings and conclusions, these findings and conclusions by the learned judge cannot be sustained.
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2. In the Commonwealth of Dominica, the holder of a certificate of title to a parcel of land cannot be challenged in a court of law on the ground that another person is the true owner of the parcel of land, except if the challenger can establish that the certificate of title was procured by its holder by fraud or that the challenger has become entitled to the parcel of land by his adverse possession of it for a period of at least 12 years. Neither of these two exceptions is applicable in the present case, because there is no evidence of the second appellant having acquired tile to the parcel of land by virtue of any fraud committed by her, nor is there any evidence of any other person becoming entitled to the parcel of land by virtue of adverse possession of it for 12 years. The title of the second appellant to the parcel of land with the dwelling house on it at Shawford Estate is accordingly indefeasible and cannot be ascribed to the first appellant on the basis of any contribution which he may have made (in whole or in part) to the acquisition of the property. Notwithstanding this, the second appellant's indefeasibility of title is not a bar to the issue of a property freezing order, so long as the property is recoverable property under POCA.
National Crime Agency v Azam [2014] EWHC 2722 (QB) considered; David George v Albert Guye [2019] CCJ 19 (AJ) applied; Title by Registration Act Chap 56:50, Laws of the Commonwealth of Dominica 1993 applied.
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3. The provisions under POCA, insofar as they relate to the registration of charges, are not contradictory to the TRA. A charge on land under POCA could effectively be registered, as the registration of a charge is not a challenge to title in the sense contemplated by the TRA, but rather a statement that there is an interest held by another in the land. Further, the TRA does in fact provide for incumbrances to be noted on the title, and registration of incumbrances is not one of the carved-out exceptions to the indefeasibility of title.
David George v Albert Guye [2019] CCJ 19 (AJ) applied; Title by Registration Act Chap. 56:50, Laws of the Commonwealth of Dominica 1993 applied.
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4. Recoverable property under POCA is property that was obtained through unlawful conduct or was derived from property which was obtained through unlawful conduct. To establish unlawful conduct, it must be established that there is a good arguable case that a certain kind of unlawful conduct had occurred and then a good arguable case that property was obtained...
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