GEORGE OCTAVE et al v FRANCIS MAURICE

,- SAINT LUCIA <::. rr "- IN THE HIGH COURT OF JUSTICE (CIVIL) G' LV o ;;:- Consolidated Suit No. 439 of 1993 Suit No. 92 of 199: Between: 0t u ~ (1) GEORGE OCTAV~ (2) IVENIA OCTAVE Plaintiffs ~ vs FRANCIS MAURICE Defendant <.. Mr. P. I. Foster & Mrs. Malaykhan for Plaintiffs Mr. Martinus Francois for Defendant ;x 1997: March 12th April 22nd ~ c:! o t-I v JUDGMENT d'Auvergne, J These two matters were consolidated by order dated 21st February, - ::2 s: 1996 and entered on the 9th of April, 1996. 7- r r There are various applications on file to be heard in this act m but the application being argued is for the granting of leave in order to file an Order for an extension of time to file an Order which was granted on the 20th of July, 1994. The Affidavit in Support of application is hereby reproduced: AFFIDAVIT II FRANCIS MAURICE Forestierre in the Quarter of Cast es the said State make oath and say as follows:-

1.That I am the Defendant in this action

2.That a certain interlocutory order this act was Chambers by the Honourable Madam Justice d l on 20 1 1994.

3.That I was informed by my Solicitor and bel that the said Order had to be drawn up and lodged not later than fourteen (14) days from the date when it was accordance with Order 42 Rule 5 of the Rules of t Court. That in compliance with the said OrdE. r 42 Rule 5 t Order was drawn up and lodged on 25th 1994 and on July 27 I 1994 (produced and exhibited th marked HAf!

5.That I have been informed and verily believe t to an omission on the part of my Solicitor I the Order was not filed and/or entered until July 23, ed and exhibited herewith marked HB").

6.I now therefore respectfully apply to this honourable court for an extension of time to file and enter the said Order. matter was heard on the 12th of March, 1997, and at the aring, Learned Counsel for the Defendant/Applicant cont that an extension of time was not necessary to file the order granted on 20th July, 1994 since he had complied with Order 42 Rule 5 of the es of the Supreme Court. He said that the said order was drawn up and lodged within t required fourteen (14) days as stated by the Rules of t Court. He said that Counsel for the Plaintiff/Respondents ed Subsections 5(1) and 5(3) of Order 42. He said that the order of 20 July, 1994 filed on , 1996 was in compliance with Order 42 Rule 5(3). Learned Counsel for the Respondents commenced his arguments giving a history of the Order of 20th July, 1994. He told Court that on the 19th June, 1996 when the application a ation of court order dated 20th July, 1994 for t removal of a caution on property Matthew J pointed out that there was no on file, draft or otherwise; that again on t 27th day of September, 1996 the same Judge pointed out that the order on file was not proper since it had been filed without leave an e:~tension . Learned Counsel for the Respondents emphasised that a draft order was not an 'Order of the Court' and therefore Counsel licant should not be allowed to argue that his draft order filed on the 25th of July, 1994 and approved on the 27th of was an Order of the Court referred to by Order 42 Rule 5(1) of t es of the Supreme Court. He contended further that the application for leave to extend the time to file an order should be based on the Court's discretion as to whether or not to grant the extension and that the exercise of the Court's discretion the Court should take cognisance of all the circumstances of the case. He said that since that order was made, another Suit No. 92 of 1995 had been filed and consolidated with Suit No. 439 of 1993; that in t last filed t, namely, Suit 92 of 1995 the iffs cont the consideration for the contract between the parties wholly failed and that the contract should be rescinded. He concluded that there was no valid excuse for late fil order and urged the Court to refuse the application. Learned Counsel for the Applicant replied by t Court to take into consideration the reason for the late fil r. CONCLUSION Order 42 Rule 5 Drawing up of judgment or order states: 1. Every judgment or order shall, unless ot se be drawn up and lodged with the Registrar t having the conduct of the suit or t of order not later than fourteen days from e the judgment was pronounced or the order made, to the circumstances of the case. 2. Every judgment or order when drawn up I dated as of the day when such judgment is pronounced or made, unless the Court or a judge I othe se rect, and shall take effect from that date: Provided that by special leave of the Court or a j a judgment or order may be ante-dated or post- 3. A draft of every judgment or order shall left Registrar to be settled before the judgment or is signed and sealed. If the Registrar deems it necessary he may summon the parties before he settles the draft.

4.After the draft has been settled by the Registrar the judgment or order shall be signed sealed and filed by and the e of such filing on judgment or order as the date of entry. As was stated by Learned Counsel the Sf t application sought is based on the Court's scret s scretion however, can only be properly exercised after all circumstances of the case have been carefu: considered. Learned Counsel for the Applicant has argued t the ft r w~s drawn up and approved within fourteen (14) days, " to an omission" it was not lodged until two years later, z 996. le I would be willing to low an omission of a few or even months, I cannot say the same for two years, espec since another Suit, viz 92 of 1995 has been filed the same subject matter. It is necessary to emphasise the importan~e of care with to the application of the Rules the Supreme Court. A ect of a e should not be read in isolation, but in unct th the entire rule. The section is explicit. Order 42 Rule S(l} and (2) re to "";udgment or order". Order 42 Rule S(3} and (4) refer to Ita t II therefore a draft order and a judgment or order cannot stretch of the imagination mean the same thing. Based upon the above the application is refused. My order is as follows: application is dismissed. There will be no order ~3 to Costs.

SUZIE d'AUVERGNE

HIGH COURT JUDGE

Suit No. 439 of 1993 & 92 of 1995 D’Auvergne, J Delivered: 22/04/97