JOSEPH FLORENVILLE v DAMAZE SYLVAIN et al

l ... A,,· ,/ -J SAINT LUCIA IN THE I~IGH COURT OF JUSTICE T C (CIVIL) J r .oJ A. D. 1996 <: < Suit No. 224 of 1994 t T Between : I r JOSEPH FLORENVILLE "-' Plaintiff v s ( DAMAZE SYLVAIN CLARA ST. MARTHE Defendants (" c r 1996: February 7 March 20 Mrs. P. Jeffery-Nelson for Plaintiff Mr . D. Theodore fo r Defendants " J U D G MEN T d' Auvergne J By a writ of Summons indorsed with a Statement of Claim filed on ~ the 11th April, 1994 the Plaintiff claimed inter- alia damages against the defendants including special damages in the sum o f $5 , 301. 00. An appearance was entered on the 19th of April, 1994 and a defence on the 28th April, 1994 by the defendants. On the 13th J uly, 1994 a reply was entered. ~ r On the 28th August , 1995 the second named defendant filed a Summons seeking an order that (1) The above mentioned action be declared abandoned.

(2) The Costs of the action and Costs of s icat be paid by the Plaintiff or such other or as may be just and expedient. matter was heard on the 7 day of , 1996 court was infor~ej that the first fendant is now Learned Counsel for the second defendant tted that s the th of 1994, there has not been an:" filed on f of the Plaintiff, that one year had el s t last was filed and there matter must be deemed abandoned. He said that applicat was Order 34 e 11 (a) . Learned Counsel for the aintiff strenuous the ter should not be deemed abandoned and Barbuda W 1 L R page 183. Enterprises Ltd vs the Attorney General 42 said that before a defendant can seek to re on strict provisions of Order 34 of the es the Court to defeat Plaintiff's action against him must a posit to that the requirements necessary to bring those s ion have themselves been strictly compli wi quoted Lord Bridge of Harwich at Page 190 of the above mentioned case and I quote: "in any case which is gpverned by r 25, Rule 1 1) t action will not become ripe for hearing at the close of pleadings but only by t ion of Order 34 e 3 1 (c), when an order is made under Order 25 giving rect as to the trial of the cause or matter." She argued that the case under review fell on all Privy Council case quoted above, that Summons for direction had not

filed and therefore case could not be cons hearing. She concluded by requesting the applicat dismissed and that t second de t icant, ordered to pay Costs to iff. Learned Counsel for t icant i r 34 e 1 (1) (a) which provides as follows: A cause or matter shall be deemed alt incapable of revived if to st hearing or consent to judgment or t a oi judgment. party has iled to tak~ any proceeding or file any herein for one year from the date of t last or filing of last document t He concluded by stating that despite t fact t to the ain language of Order 34 Rule 11 1) (a) has a an ffect t was the law. CONCLUSION The issue this case is whether a pending cause or matter can deemed to have been abandoned under Order 34 11 1) a) stated above. In my judgment, Barbuda Enterprises Ltd vs Attorney-General of Antigua and Barbuda ed above dealt with whether the cause or matter d be deemed to have been abandoned under Rule 11 1) b c) relate to a cause or matter which was to have serted. In Civil Appeal No. 21 of 1993 Saint Vincent and the Grenadines Henry St. Hi1laire Rai1ford Baptiste

vs Ena Lewis Vincent oissac, f Justice, stat at 6 t ation of the concept of ripeness 4 11 (1) (a) would have the effect of e otiose. For this reason Order 34 e 11 (1) a) must be ann ld t apply to causes or matters which never II which consequent d not deemed to have sert I respectfully adopt s ctum of Sir ssac, ef Justice and conclude that the matter never for hearing. My order is as follows: That this action is hereby declared abandoned. the Plaintiff do pay the costs of $500.00 to defendant. SUZIE d'AUVERGNE PUISNE JUDGE

Suit No. 224 of 1994 D’Auvergne, J Delivered: 20/03/96