Inglis v A.F. Valmont & Company Ltd
| Jurisdiction | St Lucia |
| Judge | Bishop, J. |
| Judgment Date | 01 October 1968 |
| Neutral Citation | LC 1968 HC 27 |
| Docket Number | No. 54 of 1968 |
| Court | High Court (Saint Lucia) |
| Date | 01 October 1968 |
West Indies Associated States Supreme Court. (High Court)
Bishop, J.
No. 54 of 1968
K.A.H. Foster for petitioner.
V.F. Floissac for respondent.
Practice and procedure - Judgment — Default — The respondent company claimed a sum of money being the balance due on the price of goods sold and delivered to the appellant at his request. Judgment in default was obtained by the company. The question whether the judgment ought to be set aside — The company was entitled to judgment forthwith after the defendant failed to plead within the statutory limit required in summary matters. The Registrar was not wrong to issue a certificate of foreclosure, and the judgment which was rendered under Article 85 of the Civil Code of Procedure was properly obtained.
On the 4 th November 1965, A.F. Valmont & Co. Ltd. a Company incorporated under the Laws of this Island and having its registered office in the City of Castries, through its solicitors filed a writ of summons and declaration headed “In the Supreme Court of the Windward Islands and Leeward Islands (St. Lucia) Summary Procedure”, in which it claimed from Jerome Inglis, a butcher, the amount of six hundred and thirty-one dollars and thirty-five cents being the balance on the price of goods sold and delivered to him at his request.
On the 12 th November 1965, a solicitor filed an entry of appearance on behalf of Jerome Inglis, though not following the legal retirement that the matter be entitled as stated above.
On the 30 th November 1965, the Company's solicitor filed a demand for pleas and instructions to serve a copy on tile solicitor for Inglis, Return of service was made on 1 st December 1965.
More than a month later, i.e. on the 10 th January 1966, a defence was filed and served on the Company's solicitors.
Judgment by default was obtained on 22 nd January 1966, by the solicitors for the Company, who, despite this, filed an “Inscription for proof and hearing ex parte” on the 6 th March 1968.
On the strength of the inscription the case came before the court on the 19 th April 1968, and counsel then agreed that a decision had already been made in the matter, and judgment delivered. Consequently I held that I would not entertain the matter “for proof and hearing ex parte” as a judgment was already delivered which was still valid.
On the 29 th April 1968, Jerome Inglis filed a petition seeking to set aside the judgment of the 22 nd January 1966 or “in the alternative for the expungment of the document dated 22 nd January 1966”.
In the petition it was contended that:
“(1) the said document, purporting to be a Judgment by default, if genuine, should be set aside for the following reasons:
(a) It was not duly filed.
(b) No Stamp Duty was paid therefor.
(c) It does not appear on the Index of the File record for this Suit particularly as the said Index reads as shown in.
(d) Your Petitioner was never foreclosed from pleading, and was therefore entitled to file a Defence, the service of which was accepted by the Respondent's solicitor.
(e) In any event, foreclosure does not take place without an Order from the Court or Judge, the respondent having failed to file the exhibits or written proofs upon which the Respondent's pleadings were founded.
(f) This Action, being founded upon verbal agreement to pay specific sums of money, upon detailed accounts for goods sold and delivered, the respondent erred by its failure to produce with the Inscription of an Affidavit duly made before the Judge, Registrar or Commissioner of the Supreme Court, and establishing that to the knowledge of the Deponent the amount claimed was due by Your Petitioner to the Respondent.
(2) In the alternative Your Petitioner contends that, in the event the said document purporting to represent a Judgment by Default Is not set aside it should be expunged from the Record for the reasons stated above with reference to the said setting aside.”
The affidavit in support of the petition stated:
“I, JEROME INGLIS of Castries in the said Island of Saint Lucia, Butcher, do make oath and say that:
(1) I am the Defendant in Suit No. 157 of 1965.
(2) The Plaintiff purported to obtain a Judgment of Default against me without complying with the rules of the Code of Civil Procedure, the Civil Code.
(3) My Legal Rights in this Suit have been prejudiced, or denied me, if the said Default is allowed to stand in spite of my Defence which stands on record.”
The hearing of the petition commenced on the 15 th May 1968. Counsel for Jerome Inglis, hereinafter called the petitioner, dealt with the sole reasons for his petition as contained in the six contentions mentioned. I referred to the affidavit in support, and counsel for the petitioner agreed that it contained conclusions of law which should be supported by facts. He applied for leave to file an additional affidavit “to support the facts stated in the petition more fully and to support the basis of the legal conclusions arrived at by the deponent in paragraphs 2 and 3”. Counsel for the Company opposed the application on the grounds that “if the applicant were allowed to file a supplementary affidavit it would constitute an amendment of the original affidavit and the institution of fresh proceedings altogether”, further:
“an order approving such application would be analogous to permitting a plaintiff to file a supplementary statement of claim after it appeared that the original disclosed no cause of action and would normally have entitled the defendant to apply that the pleadings be struck out. If the applicant were permitted to remedy fatal detects in his pleadings or affidavit by amendments or the filing of supplementary or additional documents it would be open to the court to strike out a pleading or proceedings on the ground that it is bad ab initio.”
Counsel concluded his objection by stating that he was, “not aware that power of amendment is exercised so as to remedy a fatal defect in a pleading”.
The objection was overruled. In my view an affidavit filed in support of a petition to be regarded as a statement of claim or other document showing a cause of action. It is not of the nature of a pleading. It is simply the evidence by which it is intended to establish the allegations contained in the pleadings; so that an application to file an additional affidavit is equivalent to an application to lead further or additional evidence. The objection could not therefore succeed on the grounds advanced by counsel for the Company.
An order was made granting leave to file a supplementary affidavit within seven days of the 15 th May 1968, on payment of cost fixed by agreement of counsel at fifteen dollars. The supplementary affidavit was filed on the 21 st May 1968, and it read thus:
“I JEROME INGLIS of Castries in the State of Saint Lucia, Butcher do make oath and say:
1. That on Monday the 20 th May 1968, I went to the Registry with my Solicitor Mr. Foster for the purpose of perusing the Record of Suit 157/1965.
2.Having perused the said Record I observed the following facts:
(a) That an Appearance dated the 9 th November 1965 was duly filed on the 13 th November 1965.
(b) That on the 30 th November 1965, the Plaintiff filed a Demand for Pleas which was served on my Solicitor on Wednesday the 1 st day of December 1965.
(c) That on the 8 th January 1966, the Respondent's Solicitor accepted the service of my Defence.
(d) This Defence was filed on the 10 th January 1966.
(e) That on the 5 th March 1968, the Respondent filed an Inscription for Proof and Hearing.
(f) A document entitled “Judgment by Default” was neither stamped, recorded, nor entered.
(g) That no exhibits in support of the Respondent's case were filed.”
On the 25 th May 1968 — the date fixed for further hearing — counsel for the Company sought an adjournment on the grounds that he had misplaced his file and in the circumstances could not do justice to the case. In reply, counsel for the petitioner stated that in the interests of justice he was not opposing the application. The request was granted.
The hearing of the petition was concluded on the 31 st July 1968.
I shall deal with the contentions in the order in which they were presented in the petition:
Counsel for the petitioner urged, and I quote him: “up to the 23 rd April 1968, the judgment had not been entered”.
In reply, counsel for the Company contended that the judgment was properly obtained and that failure to enter such judgment did not invalidate that judgment.
He urged further that there was no indication that the Company had taken any steps to act on the, judgment and the point that it had not been entered would only have been available to the petitioner if the Company had not entered it and had taken steps to act upon it. Counsel for the Company also stated that the judgment was entered on the 23 rd April 1968, whereas the petition to have it set aside was filed some six days later. He also expressed the view that article 350 of the Code of Civil Procedure on which the petitioner sought to rely did not apply to a judgment by default but was confined to a judgment on the merits.
It is my opinion that in the circumstances of this case, if the judgment was properly obtained then the mere failure to file, enter, or record that judgment would not be a good reason to set it aside. This first contention must fail if the judgment was properly obtained. I shall return later to the question whether or not the judgment was properly obtained.
I do not think that this...
To continue reading
Request your trial