Gafoor v Choy

• Jurisdiction: Caribbean States
• Judge: Archer, J.,Phillips, J.,Rennie, J.,Wylie, J.
• Judgment Date: 14 June 1960
• Court: Federal Supreme Court (West Indies)
• Date: 14 June 1960

Federal Supreme Court

Rennie, J.;

Archer, J.;

Wylie, J.

Gafoor

and

Choy

S. L. Van B. Stafford, Q.C., and B. O. Adams, Q.C., for the appellant.

J.O. F. Haynes, Q.C., and C. A. F. Hughes for the respondent.

Practice and procedure - Request for hearing — Consent to treat affidavits in interlocutory proceedings as pleadings — Statement of claim not filed- Whether request for hearing a nullity — O. 30, r. 8, O. 32, r. 1, and O. 38, r. 3.

Archer, J.

1 The respondent is the occupier of a flat owned by the appellant. He was already a tenant of the flat when the appellant purchased the buildings of which it was a part in 1952 and had been occupying it since 1928. On February 12, 1957, he issued a writ against the appellant claiming damages for trespass, or, in the alternative, for breach of agreement, and an injunction restraining the appellant, his servants and agents from entering upon the premises rented by him from the appellant and from interfering with, taking down and removing therefrom, any of his property. On the same day, he made an ex parte application for the issue of an interim injunction in the same terms. In his affidavit in support of the application, he alleged acts of trespass committed on December 27 and 28, 1956, and February 9, 1957. The interim injunction was granted on February 13, 1957, and the summons to continue the injunction was made returnable for March 2, 1957. The appellant entered appearance to the action on February 26, 1957, and on March 1, 1957, he swore an affidavit in answer to the respondent's affidavit of February 12, 1957, and asked for a discontinuance of the injunction. Both parties filed further affidavits and an order was made on March 23, 1957, continuing the injunction until April 30, 1957, and fixing the hearing of the action for that day. On April 15, 1957, the respondent filed a request for hearing. On April 30, 1957, he took out a summons to continue the injunction until May 22, 1957, or the final determination of the action. This summons was disposed of on May 11, 1957, when the action was fixed for hearing on May 22, 1957, and the injunction was continued until that day.

2 On May 22, 1957, when the action came on for hearing, the appellant objected to its proceeding on the ground that no statement of claim had been filed. The respondent was granted leave to file a statement of claim on or before June 3, 1957, and the appellant was given leave to file a defence within ten days of the service of the statement of claim; and the action was “taken off the hearing list to be re-fixed”.

3 There was a further application by the appellant on June 3, 1957, supported by affidavit dated May 30, 1957, for discontinuance of the injunction, to which the respondent replied by affidavit dated June 15, 1957. In his statement of claim, which he had filed and delivered on June 3, 1957, the respondent claimed to be the tenant of the flat and a strip of land adjoining it and alleged acts of trespass to the demised premises both before and since the filing of the writ. These charges were repeated in his affidavit of June 15, 1957. The appellant put in a defence and counterclaim on July 10, 1957. He denied that the respondent was a tenant of the strip of land adjoining the flat. He also denied the allegations of trespass and counterclaimed for damages for trespass and for an injunction. In denying that he had trespassed, the appellant dealt seriatim with the allegations of trespass made in the statement of claim.

4 On July 24, 1957, the appellant's application for discontinuance of the injunction was dismissed. On September 3, 1957, the respondent took out a summons for an order against the appellant for committal for contempt, alleging breach of the injunction and specifying acts alleged to have been done by the appellant on July 25 and 27, and August 7, 1957. The appellant replied to these charges by affidavit dated September 11, 1957, in which he dealt with each charge specifically. The respondent's application for committal was disposed of by an order dated January 13, 1958. The application was refused and the action was fixed; for hearing during the first week of March, 1958. Thereafter the action came on for hearing on several occasions, on two of which (May 30 and September 25, 1958) it was “taken off the list to be re-fixed”.

5 On December 5, 1958, the appellant wrote to the Registrar of the Supreme Court of British Guiana making application for a certificate of abandonment in terms of O. 32, r. 9, of the Rules of the Supreme Court, 1955. The Registrar did not issue a certificate, and on March 9, 1959, the appellant took out a summons for an order directing the Registrar to issue a certificate and for orders deeming the action altogether abandoned and incapable of being revived and for dismissal of the action for want of prosecution. The action had come on for hearing before PHILLIPS, J., on December 22, 1958, when it had been fixed for March 6, 1959. It was later fixed for March 5, 1959, and subsequently for April 16, 1959.

6 The appellant's summons of March 9, 1959, came on for hearing before JAILAL, Ag. J., on March 14, 1959, and was adjourned from time to time. It finally reached PHILLIPS, J., and was dealt with together with the action. The contention raised before PHILLIPS, J. (and repeated before this court), was that the only request for hearing made by the respondent had been prematurely made on April 15, 1957, when the action was not yet ripe for hearing; that the action had accordingly perished and had become incapable of being revived by virtue of O. 32, r. 9 (1).

7 Phillips, J., refused the application for the orders sought by the appellant and proceeded to hear the action. In dismissing the summons, he accepted the word of counsel for the respondent that the appellant's objection on May 22, 1957, to the trial proceeding on the ground that the respondent had not filed a statement of claim was in face of his previous consent to treat the affidavits sworn in the interlocutory proceedings as the pleadings.

8 The action proceeded. Before counsel for the respondent opened, counsel for the appellant, who had asked for leave to appeal against the dismissal of the summons of March 9, 1959, intimated that the appellant was appearing under protest and repeated his objection that there were no proper proceedings before the court. In his opening, counsel for the respondent dealt with all the acts alleged in the statement of claim and in the respondent's several affidavits and on the basis of trespass. Counsel for the appellant did not take any objection to the terms of the opening of the respondent's case, but he made repeated objections when evidence was led in support of the allegations in the statement of claim of acts committed subsequent to the filing of the writ and of allegations which had not been pleaded in the statement of claim. In each instance, he was overruled. At the close of the respondent's examination-in-chief his counsel asked for, and was granted, leave to amend the statement of claim. The amendment was subsequently...