Augustin v Francis et Al
| Jurisdiction | St Lucia |
| Judge | Lewsi, C.J.,Lewis, C.J.,Cecil Lewis, J.A.,St. Bernard, J.A. |
| Judgment Date | 09 April 1970 |
| Neutral Citation | LC 1970 CA 3 |
| Docket Number | Civil Appeal No. 2 of 1970 |
| Court | Court of Appeal (Saint Lucia) |
| Date | 09 April 1970 |
Court of Appeal
Lewis, C.J.; Lewis, J.A.; St. Bernard, J.A. (Ag.)
Civil Appeal No. 2 of 1970
K. Foster for appellant.
St. G. Murray for defendant-respondent.
D. McNamara, Q.C., and M. Gordon for opposant-respondent.
Practice and procedure - Notice of appeal — Amendment
Learned counsel for the respondent Tobierre has drawn the attention of the court to the fact that in the heading of the Notice of Appeal Rose Adelina Tobierre is not described in her representative capacity, and he has raised a preliminary objection to the hearing of the appeal on that ground.
In his reply learned counsel for the appellant has asked leave to amend the Notice of Appeal in order to substitute Tobierre in her representative capacity for Tobierre in her personal capacity and he has pointed out that in the body of the Notice of Appeal itself she is cited as administratrix.
On the other hand Mr. McNamara has said it is true the word “administratrix” appears, but it appears in similar manner to the description of the other parties as “housewife” and “shopkeeper” respectively; and he has submitted that the result, if this application to amend is allowed, will be to allow a person to be served with a notice of appeal out of time without formal application to that effect.
The court has looked at the petition commencing the opposition proceedings, and sees that the opposant did oppose in her representative capacity, which is clearly set out. In the title to the learned judges written decision no reference was made to the opposant's representative capacity, and one must assume that this was merely a short way of citing the title because the judgment itself refers to the fact that the petition was filed by the opposant in her representative capacity; and the formal order of the court as drawn up does contain the full title. What this court has to decide therefore, is, whether the fact that the heading does not contain reference to the representative capacity, and the body of the notice merely mentions her as administratrix without going on to set out the whole of what is set out in the main petition, really makes the notice of appeal so substantially defective as to require that leave should be given, to serve the opposant afresh in her representative capacity.
The court takes the view that the reference in the body of the notice to “administratrix” could only be understood by the opposant, on whom it was served, as being a reference to her in the capacity in which she had filed her opposition, and in which the whole suit was carried on. Therefore, the court feels that no injustice will be done and no hardship caused if leave is given to amend the heading of the Notice of Appeal so as to make this clear and to indicate that this appeal does in fact represent an appeal against the order made in the suit wait referred to in the body of the notice.
Indeed, having mentioned that, one sees immediately that to do otherwise than to grant the application would really be giving substance to a highly technical objection because the notice of appeal says that the appeal is against the ruling of Mr. Justice Bishop dated 16 th January 1970 in Suit No. 95 of 1963; so that anybody reading the notice of appeal would see clearly that the opposant is being cited in the same capacity in which she had lodged and prosecuted her opposition. Therefore the court will grant leave to amend the heading accordingly.
An amended notice of appeal has already been served on the parties and the court will grant leave for it to be filed.
ALLEN LEWIS
Chief Justice.
This is an appeal against the judgment of Mr. Justice Bishop on the 16 th January 1970 on an opposition filed by the respondent Rose Adelina Tobierre in her capacity as administratrix of the succession of one Victoire Tobierre deceased, in which opposition she prays the court to annul the judgment of the former court, the Supreme Court of the Windward Islands an Leeward Islands rendered on the 4 th of August 1996.
The judgment in that case, which was between the plaintiff/appellant Rosella Augustin and the defendant/respondent Edition Francis, ordered the defendant to deliver up to the plaintiff in one year from the 4 th day of August 1966 vacant possession of the portion of land situated at Desruisseaux in the quarter of Micoud in the island of Saint Lucia. Of course, it ought to have specified more particularly the portion of land so that it could be executed, but it does not, however that is not material to the present appeal.
In the petition for revocation the opposant claimed that she was in her representative capacity entitled to an undivided one-fifth share in the property which was the subject matter of the suit and that she was not and is not desirous of selling any part of the said land in which she has an undivided share; and it also set out that she has instituted improbation proceedings to impugn the deed of sale upon which the plaintiff bases her title.
The plaintiff's solicitor filed a notice of preliminary point of law in which he alleged that the opposant was out of court because there was a six months limitation period laid down by the Code and the petition, of course, was filed long after that six months had expired.
No answer other than that was filed, and when the matter came before the judge all parties by their counsel agreed that the preliminary point should be argued and that its decision would create finality on the whole opposition. This court, at the beginning of the argument of the learned counsel for the appellant, asked him exactly what that meant, and what was intended, and he quite frankly stated, and the other learned counsel in this case agreed that the argument was and was intended to mean that if the preliminary point was decided against the plaintiff, then the Court would be he entitled to make an order annulling the judgment.
The learned judge decided the preliminary point against the plaintiff on the ground that section 382 of the Code of Civil Procedure does not impose any limitation period against a third party seeking to oppose a judgment which affects his interest; and that the reference in that section to a period of a year and a day concerns only the privilege to serve the opposition upon the solicitors who represented the other party in the suit. I shall deal with the article in a moment. Then he went on, in accordance with what was agreed, to make an order that the judgment rendered in suit No. 95 of 1963, that is the suit in which the...
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