Pemberton v Emanuel
| Jurisdiction | Dominica |
| Judge | Robotham, C.J.,Bishop, J.A.,Moe, J.A. |
| Judgment Date | 03 February 1986 |
| Neutral Citation | DM 1986 CA 1 |
| Date | 03 February 1986 |
| Court | Court of Appeal (Dominica) |
| Docket Number | Civil Appeal No. 3 of 1984 |
Court of Appeal
Robotham, C.J., Bishop, J.A. and Moe, J.A.
Civil Appeal No. 3 of 1984
Henry Forde, Q.C. and Eamon DeFreitas for the appellant:
Allan Alexander, S.C., C.C. Beausoleil and Cecile Hill for the respondents.
Practice and Procedure - Evidence — Reception of fresh evidence on Appeal.
Will - Certainty — Falso Demonstratio Rule defined — Use of Extrinsic Evidence — Clause of will purported to give appellant part of estate known as “Tom” in a accordance with survey. No plan of any survey could be found — Trial judge held that this failed for uncertainty. Appellant relying on Falso Demonstration Rule appealed on grounds that (1) Judge erred in declaring clause too uncertain since part of property was actually called “Tom”. (2) Judges should have applied maxim — “That which is capable of being made certain is to be treated as certain”. Both grounds were treated as one. Held: (1) The Falso Demonstratio Rule in the West Indies differs from the current rule in the U.K. (2) The rule allows for the admission of extrinsic evidence to aid in construction of will, but extrinsic evidence is only valid where it is unambiguous. (3) Rule did not apply in present case since (a) the trial judge in finding no survey existed correctly admitted extrinsic evidence. But this was contradictory since some showed “Tom” to be a house, others to be 30 acres of land. Judge correct to reject this as too uncertain. (4) Appeal therefore dismissed.
Administration of estate
Facts: The appellant applied for permission to introduce fresh evidence at the Appeal.
Facts: Loan by one of beneficiaries to estate — The deceased willed to the appellant $30,000. The appellant contributed $15,000 of this to the assets of estate. Subsequently he sought to recover the $15,000. The trial judge held that the $15,000 was part of estate's assets held on trust by defendant. On appeal, it was held that the appellant was morally bound to honour the offer but there was no legal obligation on him to do so. Appeal allowed — Appellant recovered the $15,000
Held: (1) Normally it is general duty of party to bring forward all the evidence at one time and not as he sees fit. (2) For fresh evidence to be admitted three conditions must be fulfilled. Applicant must show (a) evidence could not have been obtained with reasonable diligence at trial (b) the evidence is important though not necessarily decisive (c) evidence is credible though not necessarily incontravertible. In this case appellants could have introduced evidence at trial. Application therefore denied.
The appellant Sydney Rawlins Pemberton, is the son of Victor Eustatius Pemberton who died on November 29, 1972, leaving a Will which was executed on February 10, 1961. This Will was prepared by the Honourable Miss M.E. Charles who was then a solicitor in private practice in Dominica. Under the terms of the Will the appellants and the first named respondent Augustus Leopold Emanuel were named executors.
The second-named respondent Veronne Emanuel is a daughter of deceased Victor Eustatius Pemberton, and the wife of the first-named respondent. The third-named respondent, like the appellant herein, is also a son, of the deceased.
Under the terms of the Will, there were numerous devises and in particular there was one germain to this appeal which will hereinafter be referred to as Clause 2 of the Will. It reads as follows:- “I give and devise that part of Union Estate known as “Tom” and in accordance with the survey made on my behalf to Sydney Pemberton absolutely.”
The clause immediately following (Clause 3) was couched in identical terms and gave that part of Union Estate known as Chamouth or “Cham” to Garcia Moise in trust for her children.
Union Estate as sworn to by the respondent and co-Executor Augustus Emanuel, consisted of approximately 347 acres. The record also disclosed that in the year 1969, which would be after the making of the Will but before the deceased died, Karol Winski a Chartered Land Surveyor extracted from a 1927 plan of Union Estate for and on behalf of the deceased Victor Pemberton a plan of that portion of Union Estate known as Chamouth or “Cham” comprised of 52.80 acres. There was therefore no problem in identifying the area of land which was devised under Clause 3, as “Cham in accordance with survey”.
The same however could not be said of Clause 2, which purported to devise that part of Union Estate known as “Tom” in accordance with survey. No plan of any survey could be produced by anyone up to the year 1978, and by then, the first-named respondent was complaining that the appellant was excluding him wrongfully from the administration of the Estate. He therefore filed in the High Court on November 24,1978 an originating summons asking for an account to be ordered of his co-executor the appellant, and for the following:
“(4) That it may be determined what, upon the true construction of the said Will, and in the events which happened,
(a) comprises that part of Union Estate known as “Tom” and
(b) comprises the residue of the Estate of the above-named Victor Eustatius Pemberton.”
An appearance was entered on behalf of the appellant by Miss Charles on December 1, 1978 and the usual affidavits were duly place on record. The matter came on for hearing before Singh J. on March 12, 1984 at which time the respondents were represented by the same counsel now appearing for them in this appeal. The appellant at that time however was represented by Derick Knight, Q.C., and Eamon DeFreitas. The latter who appears in this appeal, placed his name on the record replacing Miss Charles as the appellant's solicitor, by a notice filed on March 31, 1984, after the hearing had been concluded and the judgment delivered, on March 19, 1984. Despite this however, the record shows that he appeared and took part at the hearing. In his judgment Singh J. held that the devise to the appellant in Clause 2 of the Will which related to “Tom” was void for uncertainty and so fell into the residue of the Estate. The appellant duly appealed.
When the appeal care on for hearing, the appellant was represented by Henry Forde, Q.C. who replaced Mr. Knight as leading counsel, and by the said Eamon DeFreitas who appeared at the hearing. This was on Monday, September 23, 1985. On that morning Mr. DeFreitas for the appellant indicated to us that the appellant was not ready to proceed and an adjournment was sought until 2.00 p.m. Ten minutes before the court was ready to sit at 2.00 p.m. An application to adduce fresh evidence in the form of an affidavit sworn by Miss Charles was put before us. This was supported by an affidavit sworn to by Mr. DeFreitas which stated in part that the evidence contained in the affidavit of Miss Charles Acould not have been obtained with reasonable diligence for use at the trial”.
The court firmly expressed its disapproval of the late filing of this affidavit, and with Mr. Alexander for the respondents stating that he was taken by surprise, the matter was adjourned until the following morning when we heard arguments from both leading counsel. We then refused the application, promising to give our reasons in writing in the course of preparing this judgment.
The evidence sought to be adduced by Miss Charles affidavit was that she prepared the Will on the deceased's instructions and, accompanied by the first-respondent Augustus Emanuel, she attended on the deceased at his home on February 10, 1961 where it was duly executed. Thereafter, still in the presence of Emanuel, the deceased pointed out the boundaries of Tom Estate, which he had devised under his Will to the appellant. At the request of the deceased, Emanuel undertook to get Jerome Robinson a Surveyor to survey the area pointed out. She concluded the affidavit by saying that she never saw the completed plan nor did she know if it was completed.
When the matter came on before Singh J, the respondent Augustus Emanuel was cross-examined on his affidavit by Mr. Knight, yet not a single word on any aspect of Miss Charles affidavit was put to him. What comprised the boundaries of “Tom” was the vital question being asked in the originating summons from as far back as 1978 when it was filed. This was known to all counsel engaged in the case, as well as to the parties themselves, and it was with this in mind that extrinsic evidence was led in the court below. Why then was not this proposed evidence of Miss Charles put before the judge for his consideration?
The Honourable Miss Charles originally was the appellant's solicitor and even after she became Prime Minister she was available at all times except for short periods when her official duties take her abroad. She was replaced by Mr. Knight and Mr. DeFreitas, and with reasonable diligence her evidence whether by affidavit or otherwise could have been obtained for use at the trial. It is not so that the existence of this evidence only came to light subsequent to the hearing. It was always there. Such evidence not having then been called, ought the appellant, now that he has failed, to be permitted at this stage to advance a further segment of his case, by calling fresh evidence before us, when such evidence was and had always been available.
Mr. Alexander for the respondent referred to the case of Brown v. Dean [1910] A.C. 373 at 374. Where Lord Loreburn, L.C. said:
“When a litigant has obtained a judgment in a Court of Justice whether it be a County Court or one of the High Courts he is by law entitled not to be deprived of that judgment without solid grounds…”
This case was applied in the leading case on the reception of fresh evidence Ladd v. Marshall [1954] 3 All E.R. 745 where Lord Denning said at A. page 748:
“In order to justify the reception of fresh evidence or a new trial three conditions must...
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