Noel v Maxwell

• Jurisdiction: St Lucia
• Judge: Lewis C.J.
• Judgment Date: 09 September 1971
• Neutral Citation: LC 1971 CA 17
• Court: Court of Appeal (Saint Lucia)
• Date: 09 September 1971
• Docket Number: Civil Appeal No. 5 of 1971

Court of Appeal

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

Civil Appeal No. 5 of 1971

Noel

and

Maxwell

Appearances:

K. Foster for the appellant.

H. Giraudy for the respondent.

Practice and Procedure - Setting aside order — Appellant had never been served with a summons

JUDGMENT OF THE COURT

1 (delivered by Lewis C.J.): This is an appeal from an order of Bishop, J., made on the 28th February, 1971 dismissing a petition by which the court below was asked to set aside an order made against the appellant in a suit in which he had never been served with a summons.

2 The judgment of the learned judge in the original suit, No. 42 of 1969, shows quite clearly that the appellant had never been served and that the case had been inscribed for hearing against a co-defendant only, and not against the appellant. In his written judgment the learned judge made an award for damages and went on to order an injunction. He should have ordered the injunction against the party who was served only, but no doubt inadvertently in writing his judgment, made a slip and ordered an injunction against both the party who had been served and the appellant.

3 A formal order was duly drawn up and submitted to the judge, which did not repeat the slip which had been made, and the judge approved that formal order. Unfortunately, he did so without calling the parties before him in order to indicate to them that he had made a mistake and proposed to correct it. Than formal order was entered on the 8 ^th June 1970.

4 In the meantime, a petition had been filed by the appellant, pointing out that he had not been served, and that the written judgment purported to make an order against him, asking that it be set aside. When the petition came up for hearing, for some reason which is not clear, the appellant was not present in court. Counsel for the plaintiff in the suit, who is also counsel for the respondent today, then made an application that the petition be struck out and to this application the learned judge acceded. This was most unfortunate because it clearly appeared on the record that an injustice had been done to the appellant which he had a right to have corrected. Therefore the proper course was to have either adjourned the petition or to have proceeded to cure an obvious injustice by setting aside the judgment so far as it affected the appellant.

5 Today, the matter has been discussed between learned counsel at the Bar and...