Emmanuel Fatima Adams Appellant v Randolph B. Russel & Felix Alexander Respondents [ECSC]

CourtEastern Caribbean Supreme Court
Docket NumberApplication No. 2 of 1972
JudgeST.BERNARD, J.A.
Judgment Date21 Sep 1972
JurisdictionCaribbean States
Neutral Citation[1972] ECSC J0921-1
[1972] ECSC J0921-1

IN THE COURT OF APPEAL

Before:

The Honourable the Acting Chief Justice

The Honourable Mr. Justice St. Bernard

The Honourable Mr. Justice Bishop (Ag.)

Application No. 2 of 1972

Between:
Emmanuel Fatima Adams
Appellant
and
Randolph B. Russel & Felix Alexander
Respondents

C.O.R. Phillips, Q.C. for appellant

A.F. Williams for first respondent

The Honourable Attorney General with Miss Monica Joseph (Legal Assistant) for second respondent

ST.BERNARD, J.A.
1

This is an application under paragraphs ( 1) and (2) of rule 6 of order 64 of the Rules of the Supreme Court, 1970, asking the Court to extend the time within which the applicant may file a notice of appeal. Judgment in this matter was delivered on the 7th July, 1972, and pursuant to rule 5 of the said Rules the applicant had six weeks within which to file his notice of appeal. This period of time expired on the 18th August, 1972. On the 23rd August, 1972, the applicant filed his application under rule 6 of Order 64 of the Rules of the Supreme Court.

2

Paragraph (2) of rule 6 of Order 64 reads:

"Every application for extension of time when made to a judge of the Court shall be made by summons and when made to the Court shall be made by motion. Every summons or notice of motion filed shall be supported by on affidavit setting forth substantial reasons for the application and by grounds of appeal which prima facie show good cause therefor."

3

Attached to the application is an affidavit by the applicant in support of his application in which he alleges in paragraph 7 thereof that he considers the grounds

4

set out therein to be substantial grounds.

  • (a) That judgment was delivered on the 7th of July, 1972 and on that very date the applicant received a copy of the judgment.

  • (b) He applied on the same day for an extra copy which was not received as it was unavailable.

  • (c) After that time he had to make stenciled copies and time elapsed.

  • (d) Having made the stenciled copies, he dispatched a copy to his leading counsel in Antigua, in order to obtain his opinion and advice.

  • (e) Leading counsel was preparing these grounds of appeal and had to leave for London.

  • (f) Every effort was made to get in touch with leading counsel who was well acquainted with the facts, and arguments of the matter.

The relevant parts of the affidavit are as follows
5

The question for this court is whether the facts set out in the affidavit are substantial reasons for extending the time for filing notice of appeal.

6

Learned counsel for the applicant urged the Court to accept the material set out in the affidavit as amounting to substantial reasons for the applicant's failure to file the notice of appeal within the appropriate time. He asked the court to consider that the delay was minimal in that it was only three or four days beyond the time for appealing and that in such cases even though the material in the affidavit was not so substantial the court should grant the application. He further submitted that the delay in getting the best available advice from counsel was a good reason, and in support of that submission he cited the case ofMcC(RD) v. McC(JA) and another. (1971) 2 AER 1097. Counsel referred the court to a passage in the judgment of Stamp L.J. at page 1104 in which the learned judge cited a passage from the judgment of Swinfen Eady M.R. in the case of Re J. Wigfull & Sons' Trade Marks (1919) 1 Ch 52 which reads:

"It is not enough to say the time has expired; it expired more than two years ago, and thereforeI cannot appeal without the time being enlarged; because it has expired, therefore I ask that it may be enlarged. That alone is no ground. In my judgment also, it is not necessarily a ground for enlarging the time that in some subsequent case a different view is taken of the construction of an Act of Parliament. The parties in the previous litigation had their advisers at hand; the judgment was pronounced in the Court of first instance; they had an opportunity of considering whether they should or should not appeal; and after considering, they determined not to appeal; and if years are allowed to go by without any appeal being presented, I am of opinion that a strong ca.se on the facts should be made out before leave...

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