High Court

Trinidad and Tobago

2177 of 2007

Adams
and
Beharry (t/a Home Builders) and Gosine
01 01 2011
Paray-Durity, J.

Civil practice and procedure - Enforcement of judgment — Whether Inter — pleader claimant was beneficial
owner of vehicle registered to the defendant.

Appearances:

Mr. Seepersad for the claimant/execution creditor

Mr. Deena for the interpleader claimant

Mr. Bhimsingh for the Marshal

Paray-Durity, M.

REASONS
By Notice of Application for relief by way of Interpleader the Marshal applied to the court pursuant to Part 54.3 of
the Civil Proceedings Rules, 1998 as amended (hereinafter referred to as the “CPR”), for an order that:

The Application came up for hearing on the 17th June, 2009 and after defining the question at issue and to be
tried the court directed that the interpleader claimant be the claimant and the claimant/ execution creditor be the
defendant in the issue to be tried. The issue to be determined was whether the vehicle which was registered in
the name of the defendant/execution debtor was in fact the property of the interpleader claimant.

One affidavit was filed by the interpleader claimant on the 7th January, 2009 and two on behalf of the
claimant/execution creditor on the 22” July, 2009.

The claimant/execution creditor presented to the court a Bill of Sale which was entered into on the 1st April,
2008. The terms of the Bill of Sale were that the purchase price of the vehicle was $150,000.00, that the
defendant/execution debtor as seller would retain use of the vehicle until final payment was made and that the
vehicle would be transferred at the interpleader claimant's request thereafter. These payments were to be made
as follows:

a) 10% of the purchase price to be made immediately,

b) $5,000.00 was to be paid on or before the 30th May, 2008 and
c) the final payment of $130,000.00 was to be paid on or before the 30th November, 2008.
Counsel for the claimant/execution creditor argued that the Bill of Sale was not attested to. If it is that the Bill of
Sale is rendered void by that omission, it can be construed as an agreement to sell as defined under section
3(3) of the Sale of Goods Act, Chapter 82:30 (hereinafter referred to as “the Act”).

Section 3(3) reads as follows:

“(3) Where, under a contract of sale, the property in the goods is transferred from the seller to the buyer, the
 contract is called a sale: but where the transfer of the property in the goods is to take place at a future time or
subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell.”
Counsel for the claimant/execution creditor submitted that the defendant/execution debtor became the
registered owner of the vehicle on the 30th July, 2008 and therefore was not in a position to enter into an
agreement to sell the vehicle on the 1st April 2008.

Section 14 of the Act states, inter alia, that:

“… there is an implied condition on the part of the seller that in the case of a sale he has
a right to sell the goods, and in the case of an agreement to sell he will have such a right
at the time when the property is to pass.”
The defendant/execution debtor became the registered owner on the 30th July 2008 and on that date would
have had the right to sell the vehicle.

It was also argued by Counsel for the claimant/execution creditor that the payments made by the interpleader
claimant on the 1st April, 2008, 30th May, 2008 and 6th November, 2008 amounting to the purchase price of
$150,000.00 were made to Home Builders and not to the defendant/execution debtor who was the registered
owner of the vehicle.

The defendant/execution debtor was sued as Linwald Beharry trading as Home Builders, an individual who
carried on a business on his own account. It is trite law that a sole trader has no separate legal personality from
his trade name and the fact that the monies were paid to Home Builders is irrelevant.

Counsel for the claimant/execution creditor further argued that the vehicle would have been encumbered by the
judgment which was entered on the 27th June, 2008 and so could not be sold by the defendant/execution
debtor. He also raised the point that the last two payments were made by the interpleader claimant after this
date.

As stated in Gokool et al v. Scotia Bank Trinidad and Tobago Limited HC 5557 of 1996, section 27 of the Act
sets out “quite clearly at what point in time the Writ of Execution binds the property in the goods of the execution
debtor.” This section reads as follows:

(1) A writ of fieri facias or other writ of execution against goods shall bind the property in the goods of the
execution debtor as from the time when the writ is delivered to the Marshal to be executed; and, for the better
manifestation of such time, the Marshal shall, without fee, upon the receipt of any such writ, endorse upon
the back thereof the hour, day, month and year when he received the same.No such writ shall prejudice the
title to such goods acquired by any person in good faith and for valuable consideration, unless such person
had, at the time when he acquired his title, notice that such writ or any other writ by virtue of which the goods
of the execution debtor might be seized or attached had been delivered to and remained unexecuted in the
hands of the Marshal.”
In the instant case, judgment was entered against the defendant/execution debtor on the 27th June, 2008 and
registered in the 29ffi July, 2008. The writ of execution was filed on the 11th November, 2008. The agreement to
sell was entered into on the 1st April, 2008 and the final payment to the defendant/execution debtor was made
on the 6th November, 2008.

As such, the writ of execution did not prejudice the defendant/execution debtor's title to the vehicle nor did it
prejudice the interpleader claimant's title because at the time of final payment, when title passed, the
claimant/execution creditor had not applied for the writ of execution.

Although the defendant/execution debtor remained the registered owner of the vehicle the court found that there
was an agreement to sell, that the interpleader claimant did pay the purchase price to the execution debtor,
trading as Home Builders and that he did take possession of the vehicle. These facts were sufficient to rebut
proof of ownership of the vehicle in the defendant/execution debtor.

In Samaroo and Anor. v. Bookhal and Jagernauth H.C.S 365/1994 it was held that the registration of a vehicle in
the name of the execution debtor was proof of ownership which could be rebutted by proof of the actual facts. In
that case, the facts used to rebut this presumption included the existence of an agreement between the
execution debtor and the claimant whereby the claimant bought and took possession of the vehicle and paid off
the outstanding loan to the bank prior to the seizure of the vehicle.

In the circumstances the court accepted the interpleader claimant's evidence that he was the beneficial owner of
the vehicle on the 24th April, 2009, the date the vehicle was levied upon, and ordered inter alia that the vehicle
be returned to the “claimant”, the costs of the Interpleader Application be taxed and paid by the interpleader
claimant and the defendant/execution debtor equally as well as all fees and charges and that no action be
brought against the Marshal.

If, in the circumstances, the court had found in favour of the claimant/execution creditor the court would not
have directed the vehicle to be returned to him. The usual order in such circumstances is for the court to direct
that the vehicle be sold, that no action be brought against the Marshal and make an appropriate order with
regard to costs.

CORRECTION OF THE ORDER MADE ON THE 5TH MAY, 2010.

Through inadvertence the court referred to the interpleader claimant as the “claimant”. On the 26th May, 2010
the court sought to correct the accidental slip and that part of the Order with respect to costs. This being a new
rules matter it is for the court to assess costs unless the costs are agreed.

Part 43.10 (1) reads as follows:

“The court may at any time correct (without an appeal) a clerical mistake in a judgment or
order, or an error arising in a judgment or order from any accidental slip or omission.”
In the case of St. Christopher Club Ltd. v. Saint Christopher Club Condominiums et al. Civil Appeal No. 4 of
2007, a Court of Appeal decision arising out of St. Kitts and Nevis, the applicants applied to the court to vary an
Order of the court under rule 42.10 of the Eastern Caribbean Civil Procedures Rules, 2000. This rule is referred
to as the “slip rule” and is equivalent to rule 43.10 of the CPR.

In his judgment, Rawlins, J.A provided helpful guidance regarding the interpretation of this rule. At para. 19 he
stated that:

“It is noteworthy that the English CPR 40.12 is in similar terms to rule 42.10 of CPR 2000.
CPR 40.12 states as follows: ‘40.12(1) The court may at any time correct an accidental
slip or omission in a judgment or order…’
He then went on to explain that although the English rule did not include the words “any error arising in a
judgment or order”, these words did not “add anything to permit the court to correct any error caused otherwise
than by an accidental slip or omission. This is because they cannot be taken to empower a court to correct any
error of substance in a judgment or order except on appeal…”(emphasis mine)

The learned judge quoted from page 774 of the Green Book 2005, which reads as follows:

“Only genuine slips or omissions in the wording of the sealed judgment or order made by
accident may be corrected by this rule; for example, the misdescription of a party… any
substantive mistake (such as a mistake of law by the judge) may only be corrected by
way of appeal… The rule allows the court to amend the terms of a decision to give effect
to its original intention but the rule does not enable the court to have second or additional
thoughts: Bristol-Myers Squibb Co v Baker Norton Pharmaceuticals Inc [2001] RPC 1.”
Rawlins, J. then quoted the commentary on the slip rule contained at paragraph 40.12.1 of the White Book
2007, which states that:

“The rule applies only to “an accidental slip or omission in a judgment or order”.
Essentially it is there to do no more than correct typographical errors (e.g. where the
order says claimant when it means defendant… the rule is limited to genuine slips and
cannot be used to correct an error of substance nor in an attempt to get the court to add
to its original order… The slip rule cannot be used to enable the court to have second
 thoughts or to add to its original order… A judge does have the power to recall his order
before it is issued but not afterwards. Once the order is drawn up, judicial mistakes have
to be corrected by an appellate court. However, the court has an inherent jurisdiction to
vary its own order to make the meaning and intention of the court clear and can use the
slip rule to amend an order to give effect to the intention of the court…” (Emphasis mine)
It would appear that the court:

The court corrected the Order that was made on the 5th May, 2010 to make the meaning and intention of the
court clear and assessed the costs of the Interpleader Application in the sum of $5,000.00 to be paid by the
interpleader claimant and the defendant/execution debtor equally having regard to the circumstances of the
case.