Appeal Court confirms Grant and Powell misappropriated US$460,000; says their defence amounted to a “bare denial”
Basseterre, St Kitts, – The Eastern Caribbean Appeal has found that two local lawyers, Hon Lindsay Grant and Hon Jonel Powell, who take their seats in the St Kitts and Nevis National Assembly on Wednesday, misappropriated US$460,000 (EC$1.2 million) belonging to a client and denied their application to overturn a default judgment of High Court Judge, His Lordship Mr Justice Eddy Ventose.
Powell and Grant “have simply not demonstrated good prospects of upsetting the discretion” of Justice Ventose “when weighed by the court in exercising its discretion, grant an extension, militated against” Powell and Grant.
“Their delay in making the application was inordinate; no good explanation for the delay was proffered, any prejudice they suffered was of their own making in their lax approach to obeying timelines or seemingly uninterested in taking corrective measures even when given notice of them,” Chief Justice Her Ladyship Dame Janice Pereira wrote, with Justices Louise Blenman and Gerard Farara.
The appeal court judges said Powell and Grant failed “to demonstrate a realistic prospect of success on appeal, let alone a good prospect of success on appeal, let alone a good prospect of upsetting the ruling of” Justice Ventose.
The Appeal Court heard arguments in the case on June 10 and 29 and denied the application of Powell and Grant for leave to appeal the interlocutory decision of High Court Judge, His Lordship Mr Justice Eddy Ventose in refusing to set aside the default judgment against them and in favour of Mr Tanzania Tobin Tanzil.
In the written judgment promised, Chief Justice Pereira and Justices Louise Blenman and Gerard Farara on July 6, 2020 noted that Powell and Grant although “well-seasonal attorneys-at-law” had failed to put forward any reason which may be taken as good explanation.
“Why it took a further 13 days after the dismissal of the application by the Full Court to raise an application to extend time has been left wholly unexplained,” the Appeal Court found.
It further frowned on what it said was “a full-scale collateral attack by lawyers for Grant and Powell on the default judgment entered on 9th October 2018, noting “if ever there was an ambush this was surely one and ought not to be countenanced by this Court.”
The Court agreed with Justice Ventose that although the US$460,000 was paid by Powell and Grant after Tanzil had begun his court action, Powell and Grant have not shown that they have a real prospect of successfully defending the other aspects of the claim in respect to breach of trust, breach of fiduciary duty, failing to account or misappropriation of monies belonging to the claimant Tanzil.
“It does not follow that an eventual payment out of monies, held by a trustee or fiduciary, cures the breach of trust or breach of fiduciary duty, or that the monies may not have been misappropriated or that accounting need not be given by the custodian of the funds in respect of the period the funds were so held.
“In short the learned judge (Ventose) was merely succinct in saying that these other causes of action had not been addressed by the defendant. Further when the draft defence of Powell and Grant was examined by the Judge, the defendants’ defence amounted to a bare denial.”
Stating that this runs afoul of the rules of the Court, the judges were of the view that the applicants have fail to show that Justice Ventose “erred in his approach in his assessment of the draft defence.”
Powell and Grant were represented by Mr Brian Barnes, Dr Henry Browne QC and Mr Anthony Ross QC.
Mrs Angelina Gracy Sookoo-Bobb and Mr Sylvester Anthony represented Tanzil.