EDMA Y CELESTIN v HEIRS OF FRANCHETTE REMY

SAINT LUCIA IN T:iE H'~H COURT OF JUSTICE CIVIL SUIT NO. 949 OF 1996 BETWEEN: EDMA Y CELESTIN and HEIRS OF FRANCHETTE REMY or ST. REMY represented by AGNIS REMY a.k.a. AGNES LUBIN Defendant Appearances: Mrs. Shirley M. Lewis for the Plaintiff. Mr. Michel Magloire for the DGfendant. 1999: November 12 December 16 JUDGMENT

[1]HARIPRASHAD-CHARLES J. [Ag ] : This is an application by way of summons filed on 20th day of May 1999 by the Plaintiff pursuant to Order 34 Rules 7(2) and 11 (b) of the Rules of the Supreme Court, 1970 seeking a revivor of the action in a land matter. The application was heard on 12th day of November 1999 and I granted the Order for revivor of the action. I indicated that the reasons therefor would be reduced into a written judgment subseauentlv Thl'l fn'Inwinr; rl'lnreC::l':mts my reasoned judgment. On 24th day of October 1996, the Plaintiff issued a Writ of Summons aaainst Defendant claiming that lands which were mistakenly registered ill the name Defendant in the Registration Quarter of Micoud ae; SluGr\ and Parcet No.1 be declared lands of the Plaintiff and that the said 13nds be surveyed pr·rtitioned. The Defendant, represented by Agnis Remy was served a copy of of Summons on Thursday, 27th day of February 1997. No appearance havina been entered, the Plaintiff, on 12th day of September 1997 filed a Summons Judgment in Default of Appearance. This matter was pending before was scheduled to be heard on 19th day of November 1997. There is no the record of the Court as to what transpired on that day. is however is that the next adjourned date was 10th day of December 1997. day of December 1997, Mr. Michel Magloire made his first appearance as Counsel the Defendant and requested an adjournment. As the record reflected, the Defendant formally entered an appearance on 18th day of December 1997 and filed a Defence on 13th day of January 1998. Counsel for the Plaintiff agreed accept service of the Defence beyond the prescribed by Law, as can be on gleamed from the record. The Defence was served on the Plaintiffs was an 21 st day of January 1998 The record reflected that the last document affidavit verifying service of the Defence on the Solicitor. This was on 28th day of January 1998. SUMMONS FOR REVIVOR OF ACTION It cannot be disputed that almost fifteen months later, on 20th day of May 1999, Plaintiff filed a summons seeking the revivor of the action. Learned Counsel for Plaintiff based her application for revivor on two grounds: (1) That her application was made under Order 34 Rules 11 (1 ) (b) and, That Learned Counsel for the Defendant to that the matter was in the course of settlement of such assurance. she even withdrew in Default of Apt~earance.

[5]The application for revivor of c.~tion was set down for hearing on 23rd day 1999. There is again no record as to what transpired on that day in Court However, on the said day, the Defendant filed an affidavit deposed to bv one Wheatley Lubin who alleged that he is an heir to the Estate of Fanchette Remy. His affidavit is two-pronged in nature and stated as follows: That none of the heirs of Fanchette Remy nor approached the Plaintiff or the to settlement; (3) that the last document filed in this matter was on January 1998 and and by virtue of Order 34 Rule 11 (1) cause is deemed abandoned and incapable of being revived. The gist of the affidavit of Wheatley is an opposition to the summons revivor of action on the aforesaid grounds. (i) ORDER 34

[7]By Order 34 Rule 3, if the Plaintiff does not deliver a reply within the period allowed for that purpose the pleadings shall be deemed to be closed at the expiration of that period and all the material statements of fact in the pleading last filed shall be deemed to have been denied and put in issue.

[8]By Order 18 Rule 20 (b), the pleadings in the action are deemed to be closed if neither a Reply nor a Defence to Counterclaim is served, at the expiration of 14 days after service of the Defence. By virtue of Order 34 Rule 3(1 )(b). the matter became ripe for hearing fourteen days after service of Defence, that is on of February 1998. Under Order 34 Rule '(1), it is the duty of the to file a rE;Cluest six weeks after matter became ripe that 19th day of March, 1998.

[10]That the matter became deserted on 19th day of September, 1998; that is six months after the time for filing by virtue of Order 34 Rule 7 (1) and that the effect of the desertion is that proceedings cannot be restored to there is an or consent to revivor by virtue of Order 34 Rule 7 [11 J And that the matter became abandoned by Order 34 Rule 11 (1 March 1999, that is six months after the matter was deemed deserted. [12J This would seem to be the result of a careful reading of the rules and the view of Mitchell J. and the entire Court of Appeal in Barbuda Enterprises Ltd v The Attorney General of Antigua & Barbuda (Privy Council Appeal No 32 of 1992). [13J Harsh as it may seem, this is the inescapable consequence of the of Order 34 and the Court has no discretion to relieve it. See: (1) Henry St. Hilaire et al v. Ena Baptiste [unreported] Civ. App. No.21 of 1993; (2) Ena Lewis v Henry St Hilaire et al (Privy Council Appeal No. 58 Of 1995. (3) Gustavus Frett v Idalia Davies et al (unreported) Civ. App. No.2 of 1995 from thp- Brit:sh Virg:~ !~!:mds. (4) BNP Traders Company Limited v atways Investments Limited (unreported) Civ. App. No. 5 of 1997 (Grenada). (5) Barbuda Enterprises Limited v Tile Attorney General of Antigua & Barbuda (Priv\/ Cou'lc.lI Appeal No.32 of 1992).

[14]I have no difficulty in concluding that this Court is bound by these decisions to hold that Order 34 Rule 11 (1) (a) of the Rules of the Supreme the court to deem the cause abandoned and incapable of being revived because more than one year had elapsed before either party took any proceeding or any document in the matter. I also agree therein the benefitting from the rule could waive it. (ii) MATTER IN COURSE OF SETTLEMENT [1 i1] Learned Counsel for the Plaintiff, Mrs. Shirley Lewis submitted that the Defendant led her to believe that the matter would or could be settled. She further deposed that with a view to settlement of the matter, the Plaintiff withdrew the Summons Judgment in Default of Appearance on 19th day of January 1998. Learned Counsel for the Plaintiff tendered as an Exhibit EC2 to verify her statement that there were on-going discussions at a resolution of this matter. On 9th day of March 1999, Lewis wrote to Mr. Magloire, Counsel for the Defendant. Her letter reads thus "In an effort to settle this matter, kindly let us meet along with your clients on April, 1999 in the Library of the High Court." [16J On 12th day of March 1999, Learned Counsel for the Defendant replied to Lewis: "Dear Mrs. Lewis We are in receipt of your letter of 9th March, 1999 and we are attempting to contact our client in order to confirm the arrangements for the meeting. Once we have our client's instructions we will be in touch with you again. Yours sincerely CALDERON, MAGLOIRE & CO. Magloire. [17J Learned Counsel for the Defendant, Mr. Magloire, in his submissions to transpired. accepted the chronology of events as having approached Mrs. Lewis at a view to contended that the only issue in was most reluctant to consent to the Summons [18J It is clear from the evidence application for a revivor of on of a letter to Learned Counsel for the Defendant, she would been statutory time to do so. But instead, she directed a letter Defendant. The underlying question is why did she choose such course add, dangerous one as it turned out to be? Analysing and the submissions of both Counsel, I am of the the Defendant misled Learned Counsel for the Plaintiff in I"IOII0liln matter could be settled. I believed Mrs. Lewis when she deposed well as related to the Court that had there not been discussions at settlement. she would not have withdrew the Default Judgment.

[19]I agree with Mrs. Lewis that Learned Counsel for the Defendant acquiesced whatever occurred and the Defendant not now benefit misrepresentation. She further submitted that since it is a land matter, it is a case where the issues should be ventilated and determined bv the Court. (iii) LOCUS STANDI OF WHEATLEY LUBIN

[20]The affidavit of Wheatley Lubin filed on 23rd day of July 1999 stated as I am a heir to the estate of Fanchette Remy the Defendant in father F8r:Cf\ Lubin was Fanchette Remy's grandson. who represents the D6fendant is mv mother and the wife I am duly authorized to make this Affidavit on behalf of heirs of Fanchette Remy." Learned Counsel for the Defendant submitted that it was the this action and chose the Defendant. I cannot agree with Learned submission. He has acquiesced to the Defendant being represented by Agnis Remy. Why did Agnis Remy not swear to the affidavit of 23rd day of Julv 1999 opposing the summons for revivor of action. I conclude that Wheatley Lubin no locus standi in this matter to swear affidavit and for purposes, there is really no opposition to the summons for revivor of action.

[22]Based on the above findings, the only application that the Court is left to consider is the summons for revivor of action. I am of the when a is deemed deserted it is in suspense but not wholly dead it is deemed altogether abandoned under Order 34 Rule (11) (1)

[23]What principles should guide the Court in considering applications for orders revivor under the rule. After a careful review of the authorities, I have no doubt as to the main principle, which is expressed in general terms in quotation from the Encyclopaedia of the Laws of England (2nd edition), cited at page 1448 of the Annual Practice, 1948: " An application to enlarge time is an appeal to the Court for increased facilities to carry on the action and the court in such a case is always inclined to act with clemency towards the applicant provided he can show that his opponent will not thereby be injuriously affected." [24J An application for revivor of action is an appllcalloil for renewal of an action and is analogous to applications for renewal of a writ.

[25]It is my considered taking consideration transpired particular case, it is a fittino case for the issues to be ventilated in Court if a possible settlement could not be achieved. It is a idr,d matter and are involved. As I earlier indicated, the affidavit to dee'll t:,e matter abandoned incapable of being revived was sworn to by someone who has no locus standi in this matter and the Court is duty bound not to consider it. In granted the Order for the revivor of the action was the application pending before the Court.

T'o..).d. '1<.= ............. ~

Indra Hariprash d·Charles

High Court Judge rag]

CIVIL SUIT NO. 949 OF 1996 Hariprashad-Charles, J [Ag] Delivered: 16/12/99