DAVIJEAN INVESTMENTS LTD v FRANCIS FELIX MARQUIS

SAINT LUCIA IN THE HIGH COURT OF JUSTICE (CIVIL) A.D. 1996 -, ---c: Suit No. 879 of 1994 t- BETW~EN: '-' DAVIJEAN INVESTMENTS LTD. PI iff r v. FRANCIS FELIX MARQUIS <::: Ibi Defendant Mr . K. Monplaisir Q.C. and Miss H. i for Plaintiff Mrs. C. Malaykan for Defendant - <'~. c v 1996: July 17; October

2.J U D G MEN T r MATTHEW J. (In Chambers). c November 16, 1994 the PIa iff filed a writ of summons '-/ th statement of claim asking for damages trespass to land, an order that the Defendant pull down, demolish and remove buil r on the Plaintiff's land, injunctive relief and further or other relief. The Defendant was served with the writ of summons on 28, 1 95 and an appearance was entered on behalf of the Defendant on March la, 1995. On November 16, 1995 judgment in default of defence for damages to be assessed was entered against the Defendant. ~ ~ :!J/ The~e were other interlocutory proceedings between the Parties but -,-- , /J ~) <: they do not pertain to the present application by the Defendant to r set aside the default judgment. '" '- v ) On April 23, 1996 the Defendant took out a summons to set aside a judgment in default of defence entered on January 16, 1996 and " f led an affidavit in support by Cornelius 1, a cl oyment of Peter I. Foster and Associates. In that aff t re rs to a summons by the Defendant filed on Oct 3, 1995 and alleges his belief t judgment in def t of not been entered until the det summons. allegation is preposte~0us. Further that as tt learned Counsel for Pl iff and earned Counsel the Defendant the decision in respect of the summons il on October 30, 1995 given on January 16, 1996 nc~ th ication in respect of a judgment in fault of fence. At learned Counsel for the Defendant specifical d not an original application that the Def ed leave file and serve s defence. At. paragraph 6 Cornelius s hearsay evi as to t fendant told him to t ef was not aware udgment fault had entered aga t As t t s allegation is allowable it has merit to the extent Plaintiff obtained judgment and did not serve the DefeLlucu th a copy of the order. But even if the judgment was not served on the De it was a ar judgment which was entered. Not fol t any prejudice to the Defendant save a factor which se low. my view the default judgment entered could be as ar. The Defendant desp this has tted a draft fence ch it will be necessary to examine before the Court's scretion can be invoked to set aside the default judgment. the course of her submissions learned Counsel the Defendant submitted that he had a good defence. In reply to the submissions learned Counsel for the Plaintiff she was of the view that estoppel did not lie to the De from s present application. Learned Senior Counsel t a iff resisted icat f the Defendant on three grounds. rst all sa re was too lengthy a delay between filing of t j on November 1 , 1995 and the applicat to set it as I 23, 1 96. A little while ago I referred to a tor prejudiced the Defendant if he had not been served of defa 1 t judgment. been no response to 6 of the affidavit of Cornelius Daniel. If t the Def was not served with the fault judgment or at I it hardly be said t delay t in present thlS ication is long. Counsel for the PIa iff then submitted that re were no merits the defence to support an arguable case. In a ler j delivered on October 2, 1996 I went 0 t es ch the Courts apply in setting aside default j set out I paragraph 13/9/14 of the ted Kingdom Court Practice 1 95 and I went udgment of ALPINE BULK TRANSPORT CO. INC. VW SAUDI EAGLE SHIPPING CO. INC. case showed t it is not sufficient to show a merely Ilarguable!! would justi eave to defend under Order 14; it must both II a real success" and "carry some degree of convict t stated that the Court must form a provis view e outcome action. The decision also took into consideration t of Defc~dants in the case in deliberately ignoring t proceedings In my judgment an inordinate delay after the entry of a de t judgment could be regarded as conduct to be taken into account but a position to say how long was as indicated above I could not be delay in this case. Turning to the merits of the case learned Counsel a iff submitted that there was not sufficient specifici in t de determine the relevant issues. To my mind it cannot be sa the statement of claim is any more if ic. In ier edings the Defendant had asked to strike out the PI iff's c aim as disclosing no cause of action and one the reasons sated for this was the fact that the statement claim f to s ate the title under which tre Plaintiff cIa to t owner of property and failed to refer to t nature of t ch he held the land. Although the Defendant failed to have the statement of claim st out there was much merit in the ticism t sta tement of c aim. The defence must be considered ong statement of CLa and I am not prepared to hold that the De not a prospect of success on the pleadings. 2 of defence he said he had been possession the propertv s not 1965 and therefore has an overriding interest ed. rdly, the Plaintiff leges that the De is est from the Court to set aside judgment. As aut for proposition Counsel referred to Civil Appeal No. 20 of 1989 SUZANNA ISIDORE and others against CHRISTOPHER GEORGE, a is f Moe J.A. especially at pages 4 5 and to paragraph 1529 Volume 16 of the Fourth Edition of Halsbury's Laws case of Suzanna refers to "a wider principle en treated as covered by the plea of res judicata, s a litigant from relyins- on a claim or defence which he an opportunity of putting before a court in the earlier proceedings which he chose not to put forward. II heading of the paragraph of Halsbury is "Doctrine applicable wherever same cause of action determined on the merits. II i way in which Counsel seeks to base principle is as lows: In previous interlocutory proceedings the Defendant t out a summons filed on October 30, 1995 asking a~ injunction granted against him on March 8, 1995 set as 2) that the statement of aim be struck out as sc no cause of action; (3) in the ternative De ed leave to file dne serve his defence. In the course of the hearing of the summons Counsel fendant did not pursue the application leave to file serve the defence despite Court's reminder of it to Counsel. was not a determination of the third matter on me ts previous proceedings and my view e I s not 1 to the Defendant making present icat 1 that has been said above would be context t fault judgment was a regular judgment. A i if judgment was irregular the Defendant should have to have judgment set aside. This takes me to 19 of t es Court - Default of pleadings. I am of the view that e 7 of Order 19 would aintiff has made against the Defendant a claim a s not mentioned in rules 2 to 5. The prayer to the PI iff's cl fers to an injunction which is not covered Rules 2 to 5. prayer also asks for an order that the De do th I demolish and remove the buildings erected on the PIa iff's That too is not covered by Rules 2 - 5. is to be noticed that under rules 2 5 the Plaintiff is empowered to enter judgment against the Defendant. No such power is granted under Rule 7. Under that rule he can only apply to the Court for judgment and on the hearing of the application the Court I give such judgment as the Plaintiff appears entitled to s statement of claim. Rule 7(3) states that such an icat be by summons or motion. Plaintiff cannot avoid the e by ente j for damages to be assessed. Rule 7 applies wbere t Pla iff makes a claim other than claims covered by Rules 2 tc 5 and Suit 879 of 1 94 was such other claim. the exercise judic discretion I set as t default judgmen:::. filed by the Pl iff on November 16 I 1995. I leave to the Defendant to file and serve s de on the aintiff within 10 days failing which final judgment and costs to taxed shall be entered in favour of the a iff. order the Defendant to pay to the aintiff costs any event to agreed or taxed occasioned by the sett as of the default udgment. A.N.J. MATTHEW sne

Suit No. 879 of 1994 Matthew, J Delivered: 02/10/96