Bank of Nova Scotia v Ghirawoo et Al

• Jurisdiction: St Lucia
• Judge: Bishop, J.
• Judgment Date: 03 May 1968
• Neutral Citation: LC 1968 HC 10
• Docket Number: No. 34 of 1968
• Court: High Court (Saint Lucia)
• Date: 03 May 1968

West Indies Associated States Supreme Court. (High Court)

Bishop, J.

No. 34 of 1968

Bank of Nova Scotia

and

Ghirawoo et al

Appearances:

D.A. McNamara for the plaintiff.

V.A. Cooper for first and second opposants.

Defendant in person.

Practice and procedure - Appeal — Article 513 of the Civil Code of Procedure — Whether the opposition as regards a sale was properly filed

Held: The phrase “except upon the Judge's order permitted the filing of an Opposition” is another way of stating that leave must be given by the judge to file the opposition, and that in the absence of such leave, the filing of the opposition could not be legally done. Application dismissed.

Bishop, J.

1 This is exclusively a question of the interpretation that should be given to the relevant article of the Code of Civil Procedure of Saint Lucia.

2 It has not been disputed that the Code of Civil Procedure of Saint Lucia is based upon or has close relationship with the Code of Lower Canada; indeed comparison has been made of the Code of Civil Procedure of Saint Lucia and that of Lower Canada and of Quebec. To me it is significant that in drafting the local provision — i.e. article 513 of Code of Civil Procedure– there was a departure in the wording from that in the Code of Quebec or Code of Lower Canada. In my view, this must be regarded as a deliberate decision on the part of the draftsman and the reason though not at all clear would seem to me at an immediate glance to be probably to avoid the filing of frivolous and frequent oppositions thereby stifling sale.

3 I have heard and considered the contentions advanced by counsel and wish to thank them for their assistance on the point. After analyzing their views, and on a consideration of the Quebec and Lower Canada Codes alongside the Code of Civil Procedure of Saint Lucia I am of opinion that the phrase: “except upon the Judge's order permitting the filing of an opposition” is another way of stating that leave must be given by the judge to file the opposition and that in the absence of such leave the filing of cannot be legally done.

4 The Sheriff therefore cannot stop the sale unless the opposant first seeks leave to file an opposition and if granted then the Sheriff is directed to stop the sale. This would take effect from then and remain in force until the opposition was filed and heard.

5 This opposition now before me was prematurely filed i.e. without leave and cannot...