October 20 – 24 2003

Court of Appeal Sitting Saint Lucia 20th to 24th October 2003 RESERVED JUDGMENTS DELIVERED Coram: Hon. Chief Justice Sir Dennis Byron Hon. Justice of Appeal Albert Redhead Hon. Justice of Appeal Brian Alleyne SC Date: Monday 20th October 2003 Caroline Davies v Maundays Bay Management Ltd Civil Appeal No. 7 of 2002 Anguilla Appearances: Appellant: Mr. Roulston Glasgow holds for Webster, Dyrud and Mitchel Respondent: No appearance Issue: Civil Practice and Procedure – costs - exercise of discretion. Result: Written judgment: Saunders JA. Appeal dismissed with costs to the respondent in the sum of $750.00. Reason: The learned magistrate in his reasons for decision clearly addressed his mind to the matter of whether or not to award costs. His decision not to award costs cannot be regarded as being arbitrary or unreasonable. Furthermore, the function of an appellate tribunal is not to substitute its own discretion for that of the court below. See Eagil Trust v Piggot-Brown (1985) 3 All ER 120. Date: Monday 20th October 2003 Sheldon Thomas v The Queen Criminal Appeal No. 11 of 2002 Grenada Appearances: Appellant: Mr. Collin Foster holds for Mr. Noel Lloyd Respondent: Ms. Victoria Charles holds for the Director of Public Prosecutions Grenada Issue: Criminal law – rape - weak evidence – wrongful exclusion of evidence – failure to put defence - recent complaint - accusations made in the appellant’s presence. Result: Written judgment: Byron Chief Justice. Appeal allowed. The appellant’s conviction is overturned and his sentence is set aside. Reason: • The issue of the appellant’s credibility is within the jury’s purview. It is well settled that a conviction could be supported by the virtual complainant’s evidence alone once the jury has been properly directed on the law. • The record of appeal did not reveal that the learned trial judge had excluded the testimony of any of the defense’s witnesses. No ancillary evidence was adduced on this point. • A trial judge is duty bound to ensure that the defence’s case is put to the jury in a manner that is fair and adequate See R v Nelson

[1997]Crim LR 234 CA. This case fell far short of a case where the trial judge’s summation to the jury was imbalanced. • The learned trail judge erred in describing the complainant’s testimony as a recent complaint because no evidence was adduced from the person to whom the complaint was made. It is necessary for not only for the complainant to testify as to making the complaint but its terms should be proved by the person to whom it was made See Kory White v The Queen. • The judge did not give the jury any direction on the issue of accusations made by the complainant in the presence of the appellant because there was a grave danger that they would not have known how to assess the related testimony and may have given it greater evidential value than it deserved See 2003 Archbold at 15-316. Date: Monday 20th October 2003 Marie Adrural v Veronique Geead et al Civil Appeal No. 22 of 2001 Saint Lucia Appearances: Appellant: Mr. Evans Calderon Respondent: Mr. Michael Gordon QC and with him Mrs. Julie Charles Issue: Land Law- weight of evidence adduced - inadequacy of consideration – acquiescence -rectification of the land register – prescription - overriding interests. Result: Written judgment: Byron, Chief Justice. Appeal dismissed and the order of the learned trial judge affirmed. The appellant to pay the respondent’s costs in the sum of $15 000.00 as agreed between counsel. Reason: • There was little controversy on the findings of fact during the trial and there was ample evidence to support the learned trial judge’s findings. • The appellant alleged by her pleadings that she had purchased the disputed land in good faith and it was desirable for the judge to make findings on the related evidence. He made it clear that he found against that pleading and his reasoning process included observations on the inadequacy of the consideration. His findings were not based upon the inadequacy of consideration. • The learned trial judge’s decision enforced the overriding interests of the heirs of Theresa Donaii (deceased) in accordance with section 28(g) of the Land Registration Act [1984]. Section 28 provides that registered ownership is subject to overriding interests and protects those interests without them being registered. The protection is against persons who became registered while these interests existed. The concept of acquiescence is inapplicable to overriding interests. • The learned trial judge did not invoke the powers of rectification under the provisions of the Land Registration Act

[1984]in making his findings. His use of the word “rectified” in his reasons for decision was in an untechnical context. He used the word to convey the meaning “to correct or put right.” The language employed by him had the effect of making a declaration of title in the terms of relief prayed for by the respondents. • Section 28(f) of the Land Registration Act [1984] refers to claims to prescriptive title by virtue of any the laws relating to the limitation of actions and prescription. Sections 94 to 96 of the same Act however, deal with the procedure that may be utilized by any person who wishes to make a claim to the Registrar of Lands for registration of title claimed to have been acquired by positive prescription. The parties had acquired rights to the land by virtue of the laws of prescription (See Art 2064 of the Civil Code Chapter 242) and it was the learned trial judge’s duty to give effect to these rights. • Section 28 (g) of The Land Registration Act [1984] specifically protects the rights of persons in actual occupation of the land (See Ulina Jennifer George v Hilary Charlmagne Civil Appeal No. 24 of 2001). The evidence indicated that there were persons in actual occupation of the land whose rights were protected by that provision. APPLICATIONS/MOTIONS Date: Monday 20th October 2003 Noeline Prospere (Nee Madore) v Fredrick Prospere et al Civil Appeal No. 30 of 2001 Appearances: Appellant: Mr. Bernard Monplaisir Power of Attorney for the Appellant First Respondent: Mr. Frederick Prospere in person Second Respondent: Mr. Roulston Glasgow holds for Mr. Hilford Deterville QC Issue: Application for: Directions for the certification of the Record of Appeal; and Final Leave to Appeal to Her Majesty in Council Result: Final Leave to Appeal to Her Majesty in Council granted. Reason: The Appellant had complied with the requirements for Conditional Leave to Appeal of section 5 of the Judicial Committee (Appeals to the Privy Council) Order No. 224 of 1967. The application was unopposed. Date: Monday 20th October 2003 Blakes Estates Ltd v The Government of Montserrat Civil Appeals Nos. 2 & 3 of 2000. Appearances: Appellant: Mr. Marcus Foster holds for Mr. Dane Hamilton Respondent: Mr. Anthony Mc Namara QC holds for the Attorney General of Montserrat Issue: Application for Final Leave to Appeal to Her Majesty in Council Result: An order was entered in the following terms: That final Leave is granted to the Appellant to appeal to Her Majesty in Council against the decision of the Court of Appeal delivered on 3rd April 2003; That the Record of Appeal be settled and printed in London England in conformity with the Rules of Her Majesty’s Privy Council; and That the costs of this application shall be costs in the appeal. Reason: The application is unopposed and the full court deals with applications of this nature. In the interest of expediting the matter, the pronouncement of the order was made by the full court at this sitting rather than its next sitting in Montserrat. Date: Monday 20th October 2003 Frank Mariette v George Emmanuel Civil Appeal No. 5 of 2003 Appearances: Appellant: Mr. Evans Calderon Respondent: Mr. Winston Hinkson Issue: Application for an extension of time to file the Record of Appeal. Result: Leave granted to file the Record of Appeal within 7 days Reason: The application was unopposed HIGH COURT CIVIL APPEALS Date: Monday 20th October 2003 Garvin French v National Insurance Corporation Civil Appeal No. 9 of 2003 Appearances: Appellant: Mr. Peter Foster Respondent: Mrs. Ann Cadie Bruney Issue: Company Law - liability of directors for a company’s debts - exercise of due care and diligence by directors - sufficiency of evidence Civil Practice and Procedure - order for costs Result: Judgment entered in terms of the following Consent Order: That the decision of the learned trial delivered on 21st January 2003 be varied as follows: That the appellant do pay to the respondent the sum of $190 000.00 together with interest thereon at the rate of 10% per annum (payable in equal monthly installments) commencing on the 1st day of November 2003, over a period of 24 months. That there be no order as to costs. Reason: The parties agreed to the terms of a Consent Order. Coram: Hon. Chief Justice Sir Dennis Byron Hon. Justice of Appeal Albert Redhead Hon. Justice of Appeal Brian Alleyne SC RESERVED JUDGMENTS DELIVERED Date: Tuesday 21st October 2003 Noel Heath and Glenroy Matthew v The Government of The United States of America Civil Appeal No. 18 of 2003 Saint Christopher and Nevis Appearances: Appellant: Mr. Rolston Glasgow holds for Brown and Associates Respondent: Mr. Anthony Mc Namara QC holds for the respondent Issue: Criminal Law - extradition proceedings - admissibility of evidence - delay in proceedings – continuation of proceedings before a new magistrate - opportunity to call witnesses. Constitutional Law - Fundamental rights - freedom of movement – right to a fair hearing within a reasonable time Result: Written judgment: Saunders JA. Appeal dismissed. Order of the trial judge affirmed. Reason: • The High Court and the Privy Council in judgments previously delivered in this matter have determined that tape recordings were admissible under the provisions of sections 14 and 15 of the Extradition Act 1870. • These courts also determined that sections 14 and 15 of the Extradition Act (1870) did not contravene the provisions of section 14 of the Constitution that guarantees citizens freedom of movement. On these occasions, the appellants raised no question of sections 14 and 15 contravening section 10 of the constitution that guarantees citizens the right to a fair hearing within a reasonable time. The appellants proffered no satisfactory explanation as to why the issue now being raised under section 10 of the Constitution had not been so done previously. • If the court now determines the point of constitutionality in the appellant’ s favour it would be placed in the embarrassing position of rendering a decision in circumstances where a Higher Court albeit for different reasons had arrived at a contrary conclusion. Further, an extradition hearing is not a trial but is instead a hearing to determine whether there is sufficient evidence of an alleged extradition crime to warrant a government surrendering a fugitive to a foreign country for trial See Canada v Schmidt (1987) 1 RCS 500. The courts have consistently ruled that such hearings do not contravene the citizen’ s constitutional rights See Re United States of America v Smith 7 DLR (4th) 12. Consequently, the rights guaranteed to the appellants by section 10 of the constitution do not apply to these proceedings. • The issue of delay in the proceedings was rejected when the matter was before the Privy Council previously. Delay can therefore be addressed only in relation to the intervening period between the judgment of the Privy Council (handed down on 19th June 2002) and the present time. There has been no delay attributable to the state that would warrant the court in taking the view that the proceedings ought to be stayed. The right to a fair and speedy trial as guaranteed by section 10 of the constitution does not apply to extradition proceedings. See Republic of Argentina v Mellino 33 CCC (3rd) 334, Jhirad v Ferrandina (1976) 536 F. 2d 478 (2d Cir) and Sabatier v Dabrowski (1978) 586 F 2d 866 (1st Cir). • The issue of the order to commit the appellants before a new magistrate was argued before the Privy Council and was dismissed. The respondents had made out a prima facie case against the appellants. All that is left to be done in these extradition proceedings is of a ministerial nature, which is that a magistrate is required to formally conclude the proceedings by making an order for the committal of the accused. • At the hearing the appellants indicated that they had no evidence to offer when called upon by the learned magistrate to do so. Although they may have omitted to do so upon the false premise that the tape recordings were inadmissible, they should not for a second time be given an opportunity they once avoided. There was always a risk that the magistrate’ s decision to render the evidence inadmissible could be reversed on appeal. It is inappropriate that the appellants be offered an opportunity they had failed to avail themselves of. Failure of a magistrate at a preliminary inquiry to afford an accused the opportunity to call witnesses does not render a committal a nullity See Tiwari v The State (2002) 61 WIR 452. The right of an accused to call evidence at a Preliminary Inquiry is not as fundamental as was made out by the appellants. It must therefore be of even less significance at extradition proceedings where an accused is not charged with a criminal offence. Date: Tuesday 21st October 2003 Clendon Louis v Andrew Smith Civil Appeal No. 13 of 2001 Appearances: Appellant: Mr. Kenneth Foster QC Respondent: Mr. Vern Gill Issue: Land Law - encroachment onto a right of way Result: Written decision of Redhead JA: Appeal dismissed with prescribed costs to the respondent in the sum of $9 333.00. It is ordered that the report of the Licensed Land Surveyor, Rufinus Baptiste presented to the Court together with the attached plan be made part of the Court Order. Reason: • It is in the interest of the people of any country that litigation is brought to an end and this principle is expressed in the well-known ancient Latin maxim interest reipublicae ut sit finis litium. This case before the Court for the The application was unopposed fourth time and for the resolution of the same issue ie. the determination of the access road which adjoins the properties of the parties. • Having visited the locus in quo, the court is satisfied with the accuracy of the Surveyor’s report that there is an encroachment of the appellant’s fence and vehicles upon the right of way. The Court is of the view having regard to the history of this matter that there is a stubborn refusal by the parties particularly the Appellant to accept its decision. The Court cannot be made a party to this conduct. HIGH COURT CIVIL APPEALS Date: Tuesday 21st October 2003 Rochamel Construction Ltd v National Insurance Corporation Civil Appeal No. 10 of 2003 Appearances: Appellant: Mr. Kenneth Monplaisir QC Respondent: Mrs. Ann Cadie Bruney Issue: Civil Practice and Procedure – costs - costs following the cause – judge’s departure from established principle. Result: Decision reserved Reason: Date: Tuesday 21st October 2003 Saint Lucia Furnishings Limited v Saint Lucia Co- operative Bank Limited and Frank Myers of KPMG Civil Appeal No. 15 of 2003 Appearances: Appellant: Mr. Kenneth Foster QC First Respondent: Ms. Brenda Flemming Floissac with Ms. Shan Greer Second Respondent: Mr. Kenneth Monplaisir QC Issue: Civil Practice and Procedure - CPR 2000 - striking out proceedings for want of prosecution - opportunity to be heard. Result: Decision reserved Date: Tuesday 21st October 2003 J Spooner v T Spooner Civil Appeal No. 13 of 2002 Appearances: Appellant: Mr. Alberton Richelieu Respondent: Mr. Anthony Mc Namara QC Issue: Application for Leave to withdraw the application Result: Appeal Withdrawn. No order as to costs. Reason: Application is unopposed. Date: Tuesday 21st October 2003 Benoit Leriche v Leon Cherry Civil Appeal No. 4 of 2003 Appearances: Appellant: Mr. Kenneth Foster QC Respondent: Mr. Kenneth Monplaisir QC Issue: Land Law - constructive trusts – mortgage- sufficiency of evidence Civil Practice and Procedure – costs Result: Decision reserved MAGISTERIAL CIVIL APPEALS Date: Tuesday 21st October 2003 Jude Broomes v Shirley George Magisterial Civil Appeal No. 2 of 2003 Appearances: Appellant: The Appellant in person Respondent: No appearance Issue: Family Law – paternity - sufficiency of evidence - burden of proof - maintenance Civil Practice and Procedure – costs - magistrate’s jurisdiction to order costs. Result: The Order for costs is set aside. Appeal Dismissed. Arrears owed from 29th January 1999 to 29th October 2003, which amounts to $9,200.00 to be paid in six months. In default the Appellant is sentenced to six months imprisonment. Reason: • This matter has been in the system for about four years now and has not been resolved. The evidence put before the court by the Appellant is not sufficient to overturn the Magistrate’s order. The Appellant admitted to having sex with the Respondent and therefore he could be the father of the child. • The onus is on the appellant to show that he is not the father and not on the Respondent to show that he is. The Appellant has failed to pay the interim payments that have now accrued to $9600.00. The Court examined the Appellant’s means to ascertain his ability to pay the outstanding debt reasonably.

Court of Appeal Sitting Saint Lucia 20th to 24th October 2003 RESERVED JUDGMENTS DELIVERED Coram: Hon. Chief Justice Sir Dennis Byron Hon. Justice of Appeal Albert Redhead Hon. Justice of Appeal Brian Alleyne SC Date: Monday 20th October 2003 Caroline Davies v Maundays Bay Management Ltd Civil Appeal No. 7 of 2002 Anguilla Appearances: Appellant: Mr. Roulston Glasgow holds for Webster, Dyrud and Mitchel Respondent: No appearance Issue: Civil Practice and Procedure – costs – exercise of discretion. Result: Written judgment: Saunders JA. Appeal dismissed with costs to the respondent in the sum of $750.00. Reason: The learned magistrate in his reasons for decision clearly addressed his mind to the matter of whether or not to award costs. His decision not to award costs cannot be regarded as being arbitrary or unreasonable. Furthermore, the function of an appellate tribunal is not to substitute its own discretion for that of the court below. See Eagil Trust v Piggot-Brown (1985) 3 All

ER 120. Date: Monday 20th October 2003 Sheldon Thomas v The Queen Criminal Appeal No. 11 of 2002 Grenada Appearances: Appellant: Mr. Collin Foster holds for Mr. Noel Lloyd Respondent: Ms. Victoria Charles holds for the Director of Public Prosecutions Grenada Issue: Criminal Law- – rape – weak evidence – wrongful exclusion of evidence – failure to put defence – recent complaint – accusations made in the appellant’s presence. Result: Written judgment: Byron, Chief Justice. Appeal allowed. the appellant’s conviction is overturned and his sentence is set aside. Reason: • the issue of the appellant’s credibility is within the jury’s purview. it is well settled that a conviction could be supported by the virtual complainant’s evidence alone once the jury has been properly directed on the law. • The record of appeal did not reveal that The learned trial judge had excluded the testimony of any of the defense’s witnesses. No ancillary evidence was adduced on this point. • A

trial judge is duty bound to ensure that the defence’s case is put to the jury in a manner that is fair and adequate See R v Nelson [1997] Crim LR 234 CA. This case fell far short of a case where the trial judge’s summation to the jury was imbalanced. • The learned trail judge erred in describing the complainant’s testimony as a recent complaint because no evidence was adduced from the person to whom the complaint was made. It is necessary for not only for the complainant to testify as to making the complaint but its terms should be proved by the person to whom it was made See Kory White v The Queen. • The judge did not give the jury any direction on the issue of 2accusations made by the complainant in the presence of the appellant because there was a grave danger that they would not have known how to assess the related testimony and

may have given it greater evidential value than it deserved See 2003 Archbold at 15-316. Date: Monday 20th October 2003 Marie Adrural v Veronique Geead et al Civil Appeal No. 22 of 2001 Saint Lucia Appearances: Appellant: Mr. Evans Calderon Respondent: Mr. Michael Gordon QC and with him Mrs. Julie Charles Issue: Land Law- weight of evidence adduced – inadequacy of consideration – acquiescence -rectification of the land register – prescription – overriding interests. Result: Written judgment: Byron, Chief Justice. Appeal dismissed and the order of the learned trial judge affirmed. The appellant to pay the respondent’s costs in the sum of $15 000.00 as agreed between counsel. Reason: • There was little controversy on the findings of fact during the trial and there was ample evidence to support the learned trial judge’s findings. • The appellant alleged by her pleadings that she had purchased the disputed land in good faith and it was desirable for the judge to make

findings on the related evidence. He made it clear that he found against that pleading and his reasoning process included observations on the inadequacy of the consideration. His findings were not based upon the inadequacy of consideration. 3• The learned trial judge’s decision enforced the overriding interests of the heirs of Theresa Donaii (deceased) in accordance with section 28(g) of the Land Registration Act [1984]. Section 28 provides that registered ownership is subject to overriding interests and protects those interests without them being registered. The protection is against persons who became registered while these interests existed. The concept of acquiescence is inapplicable to overriding interests. • The learned trial judge did not invoke the powers of rectification under the provisions of the Land Registration Act [1984] in making his findings. His use of the word “rectified” in his reasons for decision was in an untechnical context. He used the word to convey the meaning “to correct or put right.” The

language employed by him had the effect of making a declaration of title in the terms of relief prayed for by the respondents. • Section 28(f) of the Land Registration Act [1984] refers to claims to prescriptive title by virtue of any the laws relating to the limitation of actions and prescription. Sections 94 to 96 of the same Act however, deal with the procedure that may be utilized by any person who wishes to make a claim to the Registrar of Lands for registration of title claimed to have been acquired by positive prescription. The parties had acquired rights to the land by virtue of the laws of prescription (See Art 2064 of the Civil Code Chapter 242) and it was the learned trial judge’s duty to give effect to these rights. • Section 28 (g) of The Land Registration Act [1984] specifically protects the rights of persons in actual occupation of the land (See Ulina Jennifer George v

Hilary Charlmagne Civil Appeal No. 24 of 2001). The evidence indicated that there were persons in actual occupation of the land whose rights were protected by that provision. 4APPLICATIONS/MOTIONS Date: Monday 20th October 2003 Noeline Prospere (Nee Madore) v Fredrick Prospere et al Civil Appeal No. 30 of 2001 Appearances: Appellant: Mr. Bernard Monplaisir Power of Attorney for the Appellant First Respondent: Mr. Frederick Prospere in person Second Respondent: Mr. Roulston Glasgow holds for Mr. Hilford Deterville QC Issue: Application for: Directions for the certification of the Record of Appeal; and Final Leave to Appeal to Her Majesty in Council Result: Final Leave to Appeal to Her Majesty in Council granted. Reason: The Appellant had complied with the requirements for Conditional Leave to Appeal of section 5 of the Judicial Committee (Appeals to the Privy Council) Order No. 224 of 1967. The application was unopposed. Date: Monday 20th October 2003 Blakes Estates Ltd v The Government of Montserrat Civil Appeals

Nos. 2 & 3 of 2000. Appearances: Appellant: Mr. Marcus Foster holds for Mr. Dane Hamilton Respondent: Mr. Anthony Mc Namara QC holds for the Attorney General of Montserrat 5Issue: Application for Final Leave to Appeal to Her Majesty in Council Result: An order was entered in the following terms: That final Leave is granted to the Appellant to appeal to Her Majesty in Council against the decision of the Court of Appeal delivered on 3rd April 2003; That the Record of Appeal be settled and printed in London England in conformity with the Rules of Her Majesty’s Privy Council; and That the costs of this application shall be costs in the appeal. Reason: The application is unopposed and the full court deals with applications of this nature. In the interest of expediting the matter, the pronouncement of the order was made by the full court at this sitting rather than its next sitting in Montserrat. Date: Monday 20th October

2003 Frank Mariette v George Emmanuel Civil Appeal No. 5 of 2003 Appearances: Appellant: Mr. Evans Calderon Respondent: Mr. Winston Hinkson Issue: Application for an extension of time to file the Record of Appeal. Result: Leave granted to file the Record of Appeal within 7 days Reason: The application was unopposed 6HIGH COURT CIVIL APPEALS Date: Monday 20th October 2003 Garvin French v National Insurance Corporation Civil Appeal No. 9 of 2003 Appearances: Appellant: Mr. Peter Foster Respondent: Mrs. Ann Cadie Bruney Issue: Company Law – liability of directors for a company’s debts – exercise of due care and diligence by directors – sufficiency of evidence Civil Practice and Procedure – order for costs Result: Judgment entered in terms of the following Consent Order: That the decision of the learned trial delivered on 21st January 2003 be varied as follows: That the appellant do pay to the respondent the sum of $190 000.00 together with interest thereon at the rate

of 10% per annum (payable in equal monthly installments) commencing on the 1st day of November 2003, over a period of 24 months. That there be no order as to costs. Reason: The parties agreed to the terms of a Consent Order. Coram: Hon. Chief Justice Sir Dennis Byron Hon. Justice of Appeal Albert Redhead Hon. Justice of Appeal Brian Alleyne SC 7RESERVED JUDGMENTS DELIVERED Date: Tuesday 21st October 2003 Noel Heath and Glenroy Matthew v The Government of The United States of America Civil Appeal No. 18 of 2003 Saint Christopher and Nevis Appearances: Appellant: Mr. Rolston Glasgow holds for Brown and Associates Respondent: Mr. Anthony Mc Namara QC holds for the respondent Issue: Criminal Law – extradition proceedings – admissibility of evidence – delay in proceedings – continuation of proceedings before a new magistrate – opportunity to call witnesses. Constitutional Law – Fundamental rights – freedom of movement – right to a fair hearing within a reasonable time

Result: Written judgment: Saunders JA. Appeal dismissed. Order of the trial judge affirmed. Reason: • The High Court and the Privy Council in judgments previously delivered in this matter have determined that tape recordings were admissible under the provisions of sections 14 and 15 of the Extradition Act 1870. • These courts also determined that sections 14 and 15 of the Extradition Act (1870) did not contravene the provisions of section 14 of the Constitution that guarantees citizens freedom of movement. On these occasions, the appellants raised no question of sections 14 8and 15 contravening section 10 of the constitution that guarantees citizens the right to a fair hearing within a reasonable time. The appellants proffered no satisfactory explanation as to why the issue now being raised under section 10 of the Constitution had not been so done previously. • If the court now determines the point of constitutionality in the appellant’ s favour it would be placed in the

embarrassing position of rendering a decision in circumstances where a Higher Court albeit for different reasons had arrived at a contrary conclusion. Further, an extradition hearing is not a trial but is instead a hearing to determine whether there is sufficient evidence of an alleged extradition crime to warrant a government surrendering a fugitive to a foreign country for trial See Canada v Schmidt (1987) 1 RCS 500. The courts have consistently ruled that such hearings do not contravene the citizen’ s constitutional rights See Re United States of America v Smith 7 DLR (4th) 12. Consequently, the rights guaranteed to the appellants by section 10 of the constitution do not apply to these proceedings. • The issue of delay in the proceedings was rejected when the matter was before the Privy Council previously. Delay can therefore be addressed only in relation to the intervening period between the judgment of the Privy Council (handed down on 19th June 2002) and

the present time. There has been no delay attributable to the state that would warrant the court in taking the view that the proceedings ought to be stayed. The right to a fair and speedy trial as guaranteed by section 10 of the constitution does not apply to extradition proceedings. See Republic of Argentina v Mellino 33 CCC (3rd) 334, Jhirad v Ferrandina (1976) 536 F. 2d 478 (2d Cir) and Sabatier v Dabrowski (1978) 586 F 2d 866 (1st Cir). • The issue of the order to commit the appellants before a new magistrate was argued before the Privy Council and was dismissed. The respondents had made out a prima facie case against the appellants. All that is left to be done in these extradition proceedings is of a ministerial nature, which is that a magistrate is required to formally 9conclude the proceedings by making an order for the committal of the accused. • At the hearing the appellants

indicated that they had no evidence to offer when called upon by the learned magistrate to do so. Although they may have omitted to do so upon the false premise that the tape recordings were inadmissible, they should not for a second time be given an opportunity they once avoided. There was always a risk that the magistrate’ s decision to render the evidence inadmissible could be reversed on appeal. It is inappropriate that the appellants be offered an opportunity they had failed to avail themselves of. Failure of a magistrate at a preliminary inquiry to afford an accused the opportunity to call witnesses does not render a committal a nullity See Tiwari v The State (2002) 61 WIR 452. The right of an accused to call evidence at a Preliminary Inquiry is not as fundamental as was made out by the appellants. It must therefore be of even less significance at extradition proceedings where an accused is not charged

with a criminal offence. Date: Tuesday 21st October 2003 Clendon Louis v Andrew Smith Civil Appeal No. 13 of 2001 Appearances: Appellant: Mr. Kenneth Foster QC Respondent: Mr. Vern Gill Issue: Land Law – encroachment onto a right of way Result: Written decision of Redhead JA: Appeal dismissed with prescribed costs to the respondent in the sum of $9 333.00. It is ordered that the report of the Licensed Land Surveyor, Rufinus Baptiste presented to the Court together with the attached plan be made part of the Court Order. 10Reason: • It is in the interest of the people of any country that litigation is brought to an end and this principle is expressed in the well-known ancient Latin maxim interest reipublicae ut sit finis litium. This case before the Court for the The application was unopposed fourth time and for the resolution of the same issue ie. the determination of the access road which adjoins the properties of the

parties. • Having visited the locus in quo, the court is satisfied with the accuracy of the Surveyor’s report that there is an encroachment of the appellant’s fence and vehicles upon the right of way. The Court is of the view having regard to the history of this matter that there is a stubborn refusal by the parties particularly the Appellant to accept its decision. The Court cannot be made a party to this conduct. HIGH COURT CIVIL APPEALS Date: Tuesday 21st October 2003 Rochamel Construction Ltd v National Insurance Corporation Civil Appeal No. 10 of 2003 Appearances: Appellant: Mr. Kenneth Monplaisir QC Respondent: Mrs. Ann Cadie Bruney Issue: Civil Practice and Procedure – costs – costs following the cause – judge’s departure from established principle. Result: Decision reserved 11Reason: Date: Tuesday 21st October 2003 Saint Lucia Furnishings Limited v Saint Lucia Cooperative Bank Limited and Frank Myers of KPMG Civil Appeal No. 15 of 2003 Appearances: Appellant: Mr. Kenneth

Foster QC First Respondent: Ms. Brenda Flemming Floissac with Ms. Shan Greer Second Respondent: Mr. Kenneth Monplaisir QC Issue: Civil Practice and Procedure – CPR 2000 – striking out proceedings for want of prosecution – opportunity to be heard. Result: Decision reserved Date: Tuesday 21st October 2003 J Spooner v T Spooner Civil Appeal No. 13 of 2002 Appearances: Appellant: Mr. Alberton Richelieu Respondent: Mr. Anthony Mc Namara QC Issue: Application for Leave to withdraw the application Result: Appeal Withdrawn. No order as to costs. 12Reason: Application is unopposed. Date: Tuesday 21st October 2003 Benoit Leriche v Leon Cherry Civil Appeal No. 4 of 2003 Appearances: Appellant: Mr. Kenneth Foster QC Respondent: Mr. Kenneth Monplaisir QC Issue: Land Law – constructive trusts – mortgage- sufficiency of evidence Civil Practice and Procedure – costs Result: Decision reserved MAGISTERIAL CIVIL APPEALS Date: Tuesday 21st October 2003 Jude Broomes v Shirley George Magisterial Civil Appeal No. 2 of 2003 Appearances: Appellant: The Appellant

in person Respondent: No appearance Issue: Family Law – paternity – sufficiency of evidence – burden of proof – maintenance Civil Practice and Procedure – costs – magistrate’s jurisdiction to order costs. Result: The Order for costs is set aside. Appeal Dismissed. Arrears owed from 29th January 1999 to 29th October 2003, which 13amounts to $9,200.00 to be paid in six months. In default the Appellant is sentenced to six months imprisonment. Reason: • This matter has been in the system for about four years now and has not been resolved. The evidence put before the court by the Appellant is not sufficient to overturn the Magistrate’s order. The Appellant admitted to having sex with the Respondent and therefore he could be the father of the child. • The onus is on the appellant to show that he is not the father and not on the Respondent to show that he is. The Appellant has failed to pay the interim

payments that have now accrued to $9600.00. The Court examined the Appellant’s means to ascertain his ability to pay the outstanding debt reasonably. 14