Augustin v Francis and Tobierre

JurisdictionSt Lucia
JudgeLewis, C.J.
Judgment Date13 March 1972
Neutral CitationLC 1972 CA 5
Docket NumberMotion no. 2 of 1972 in Civil Appeal No. 2 of 1970
CourtCourt of Appeal (Saint Lucia)
Date13 March 1972

Court of Appeal

Lewis, C.J. Cecil Lewis, J.A., St. Bernard, J.A

Motion no. 2 of 1972 in Civil Appeal No. 2 of 1970

Augustin
and
Francis and Tobierre

M. Gordon for applicant.

P. Bledman (holding for Foster) for respondent, Rosella Augustine.

Practice and procedure - Appeal — Grant of unconditional leave to appeal — Non compliance with order.

Lewis, C.J.
1

This is an application by Editon Francis for an order to rescind a previous order of this Court made on the 23rd September, 1970 whereby conditional leave was granted to the appellant, Rosella Augustin to appeal to Her Majesty in Council from a judgment of this Court. The court granted conditional leave, one of the conditions being that the record should be prepared and dispatched to England within four months of the date of the order. That order was made under section 5(a) of the West Indies Associated States (Appeals to Privy Council) Order, 1967. The time therefore expired on the 23rd of January, 1971, learned counsel for the applicant states that he relies not only on section 12 of the rules, but also upon the inherent jurisdiction of this Court to control its own orders and its own procedure. Section 12 gives the court power, where an order granting conditional leave to appeal has been made, and the conditions have been complied with but the order is not otherwise prosecuted diligently, to rescind the order granting conditional leave to appeal notwithstanding the compliance.

2

Learned counsel for the appellant, Rosella Augustin, has raised two objections to this application. The first is that section 12 is not applicable since he has not complied with conditions; and the second is that as the affidavit in support shows that the other respondent, Tobierre, died on the 25th of January, 1971, this application is out of order and the applicant is not entitled to come to the court until he has taken steps to have somebody put into the place of the other respondent. Both these objections may be described as somewhat Gilbertian. That the court should not have power in rescind its order where the conditions have not been complied with although it is given power to rescind it where they have been complied with, seems too fantastic for words. As learned counsel for the applicant said, the conditions not having been complied with, in the absence of any further order by the court, the order would be deemed to have lapsed.

3

On the other point, to say...

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