Daniel v Elva

• Jurisdiction: St Lucia
• Judge: Lewis, C. J.,Cecil Lewis, J. A.,Louisy, J. A.
• Judgment Date: 06 October 1971
• Neutral Citation: LC 1971 CA 20
• Docket Number: Motion No. 5 of 1971
• Court: Court of Appeal (Saint Lucia)
• Date: 06 October 1971

Court of Appeal

Lewis, C.J., Lewis, J.A., Louisy, J.A. (Ag.)

Motion No. 5 of 1971

Daniel

and

Elva

Appearances:

E.H. Giraudy for the applicant.

L.A. Williams for the complainant/respondent.

Practice and Procedure - Appeal — Application for extension of time

Lewis, C. J.

1 This is an application for extension of time to file an appeal. The application is made under section 25(2) of the West Indies Associated States Supreme Court (Saint Lucia) Act No. 17 of 1969.

2 The applicant was convicted on the 13th May 1971 of the offence of assault with a dangerous instrument and was sentenced to 6 months imprisonment. He appealed against the magistrate's decision, and on 2nd June 1971 a solicitor signed a recognizance on his behalf. When the appeal came on for hearing on the 7th September, it was pointed out that the recognizance, which ought to have been signed by the applicant personally, had been signed by his solicitor. There was no authority in the Criminal Code or in any other statute to which the attention of the court was drawn for the solicitor to sign this document, and the court then ruled that the appeal had not been perfected and dismissed it.

3 This application seeks the leave of the court to file a new appeal out of time. It now appears from discussion between the Bar and the Bench that there were two provisions under which counsel for the appellant might, on the hearing of the appeal, have applied for the discretion of the court to be exercised and the case heard. One is section 25(2) of the Supreme Court Act, which undoubtedly gives the court wide powers to grant extension of time both for filing an appeal and for filing any bond or security that is required. The position in law was that there was no recognizance before the court as required by the Criminal Code. An application might have been made at that time for the discretion of the court to be exercised under section 25(2) to permit the recognizance to be filed out of time. The court would then have considered whether it ought to exercise its discretion in that way or not,

4 There is also in the Criminal Code itself; Ch. 250 section 1127(2) which says that if it appears to the court that the appellant has not complied with the requirements relating to the giving or service of notice of appeal or requirements of section 1119 (which relates to the lodging of the recognizance) the court “shall dismiss the appeal and affirm the magistrate's decision, with or without costs of appeal against the appellant, as it may think fit unless, on good and sufficient cause shown, it considers it would be most unjust in the circumstances to o so, in which case it may hear the appeal on such terms and conditions as it may consider proper or make such other order as it thinks fit.” So an application might have been made under that subsection, 1127 (2), and...