McGoun v Rock

• Jurisdiction: St Lucia
• Judge: Bishop, J.
• Judgment Date: 03 May 1965
• Neutral Citation: LC 1965 HC 3
• Date: 03 May 1965
• Court: High Court (Saint Lucia)
• Docket Number: No. 86 of 1961

Supreme Court of the Windward and Leeward Islands. High Court

Bishop, P.J (Ag.)

No. 86 of 1961

McGoun

and

Rock

Appearances:

V. A. Cooper for the defendant/opposant.

K. A. H. Foster for the plaintiff/respondent.

Execution - Sale of goods

Facts: The opposant contested the seizure and sale of moveables which were levied in order to satisfy a judgment alleged to be given in the favour of the defendant. The opposant sought a declaration that the seizure was null and void and to set it aside. The issue was whether the judgment or order upon which the plaintiff purported to issue execution failed to comply with Article 349 of the Civil Code of Procedure.

Held: The judgment was not altered in the Register of the Court but in the interest of justice the opposant should not be permitted to escape the obligation imposed in the judgment of the trial judge and accepted by the opposant as a judgment in favour of the plaintiff.

Bishop, J.

1 The opposant in this case is contesting the seizure and sale of moveables, which were levied upon in order to satisfy a judgment alleged to be given in favour of David D. McGoun the plaintiff against the said E. W. Rock.

2 The grounds on which the opposant relies are:

• (1) That the Judgment or Order upon which the plaintiff purports to issue Execution fails to comply with Article 349 of the Code of Civil Procedure in that:

• (i) Suit No. 86 of 1961 was a contested case;

• (ii) The Judgment does not contain a summary statement of the issues of law and of fact raised and decided;

• (iii) Nor the reasons upon which the decision is founded.

• (2) That the Judgment to be entered and referred to in Article 350 of the Code of Civil Procedure must be the Judgment containing the particulars contained in sub-paragraphs (ii) and (iii) above;

• (3) That no draft of any Judgment has been initialled by the Judge.

3 Consequently, the opposant prays that the Court will declare the seizure null and void and order that it be set aside.

4 In accordance with the provisions of Article 453 of the Code of Civil Procedure of St. Lucia, 1957 the opposant move plaintiff (creditor) declare whether he intended to admit the opposition. The plaintiff' (creditor) through his solicitors declared his intention to contest it; indeed, his declaration of intention to contest the Opposition was filed on 1 ^st July 1963, some three days before the opposant moved that he should do so.

5 The opposant did not give evidence himself but summoned a witness — Albert G. Hinkson -the then Deputy Registrar of the Island of Saint Lucia who was cross-examined by Counsel for the plaintiff (creditor). The opposant closed his case at the evidence of this witness and Counsel for the plaintiff at that stage made a submission on which he elected to stand.

6 Before examining the law, which, is to be applied, it is necessary to determine what facts have been established by the evidence, which has been made available to the Court.

7 The evidence has shown that in the case McGoun v Rock — a case of Libel — the Trial Judge Mr. Justice Chenery gave for the plaintiff and awarded him damages. There was no draft judgment initialled by the Judge nor was there any record of any entry of that judgment which was delivered by the Trial Judge. Further, the Deputy Registrar referred to the Register of the Court in which Register all judgments are entered, and stated on oath that there is nothing registered which contains a summary statement of issues of law and of fact raised and decided. The Witness said: “At page 206 there is an entry of a Judgment Order. By ‘Judgment Order’: I mean a prÉcis of the actual Judgment delivered by the Judge”. The witness read the Order from the Register, which read as follows:–

Before the Honourable Mr. Justice J. W. B. Chenery

Kenneth Foster for plaintiff,

Vernon Cooper and Donald James for defendant.

Dated 22 ^nd January 1962.

ORDER

This ACTION coming on for trial on the 27 ^th November 1961 to the 11 ^th January 1962, excluding the following days 2 ^nd, 3 ^rd, 6 ^th, 9 ^th, 10 ^th, 13 ^th, 16 ^th, 17 ^th, 21 ^st, 22 ^nd December 1961, and the Christmas vacation period, before this Court in the presence for the plaintiff and for the defendant and UPON READING pleadings and UPON HEARING the evidence and what was Counsel for the plaintiff and for the defendant.

THIS COURT DOTH ORDER that Judgment be entered for the plaintiff and that the defendant do pay to the plaintiff the sum of Five Hundred Dollars ($500) damages and the Costs of this action.

BY THE COURT,

ST. GEORGE MURRAY,

Registrar.

8 This Order was filed on 5 ^th March 1962 but dated 22 ^nd January 1962, summoned. Subsequent to the date of delivery of the Judgment the plaintiff's solicitor's Bill of Costs dated 19 ^th January 1962 was filed, the actual date of filing being 31 ^st January 1962....