Jean Mary Regan nee Aird in her representative capacity as one of the Executors of the Estate of James Otto Aird deceased and in her personal capacity Plaintiff/Appellant v Bernice Rita Matthews formerly Aird in her representative capacity and the Other Executotr of the Estate of James Otto Aird deceased and in her personal capacity Defendant/Respondent [ECSC]

JurisdictionCaribbean States
CourtEastern Caribbean Supreme Court
JudgeCECIL LEWIS. C.J. (Ag.)
Judgment Date05 Dec 1972
Neutral Citation[1972] ECSC J1205-1
Docket NumberCivil Appeal No. 1 of 1972
[1972] ECSC J1205-1

IN THE COURT OF APPEAL

Before:

The Honourable the Acting Chief Justice

The Honourable Mr. Justice St. Bernard

The Honourable Mr. Justice Louisy (Ag.)

Civil Appeal No. 1 of 1972

Between:
Jean Mary Regan nee Aird in her representative capacity as one of the Executors of the Estate of James Otto Aird deceased and in her personal capacity
Plaintiff/Appellant
and
Bernice Rita Matthews formerly Aird in her representative capacity and the Other Executotr of the Estate of James Otto Aird deceased and in her personal capacity
Defendant/Respondent

K.H.C. Alleyne Q.C., with B.G.K. Alleyne for Plaintiff/Appellant

F.E. Degazon for Defendant/Respondent

CECIL LEWIS. C.J. (Ag.)
1

The plaintiff/appellant issued an originating summons supported by affidavit dated April 25, 1972 asking the Court to determine the following questions, viz; "whether the defendant can take the property known as Rose Cottage at Morne Bruce, Dominica to which she is entitled by right of survivorship upon the death of James Otto Aird deceased, her joint tenant, and also retain the benefits given to her by the will of the said James Otto Aird deceased, or must elect between her right under the joint tenancy and the benefits given to her by the will. The said James Otto Aird having devised by his said will the said property known as Rose Cottage to the plaintiff, and devised and bequeathed part of his estate to the defendant". This summons was fixed for hearing on July 10, 1972. It required the defendant/respondent enter an appearance thereto within eight days after service thereof upon her.

2

The respondent did not enter an appearance to the summons, but instead, on May 2, 1972, caused a summons to be issued on her behalf requiring all parties concerned to attend before a judge in chambers on May 9, 1972 "on the hearing of an application on the part of the defendant that leave be granted to the defendant to enter a conditional appearance to the originating summons herein; and that the originating summons, aforesaid, be struck out on the grounds adduced in the affidavit filed therein in support of this application."

3

It will be observed that the respondent was making a dual application under the same summons, viz; an application for leave to enter conditional appearance to the originating summons, and an application for an order that this summons be set aside. The affidavit in support of the respondent's summons will be referred to later.

4

On July 10, 1972, when the originating summons came on for hearing, the plaintiff was represented by her counsel. Counsel for the respondent was present. The Judge's note of what took place reads as follows:

" F.E. Degazon appears for the defendant only for the purpose of having summons struck out. In limine, defendant will apply to have summons struck out and leave granted to enter a conditional appearance.

K.H.C. Alleyne: By o, 12 r. 6 a defendant may enter a conditional appearance. No such leave granted yet. 0. 12 r. 6(2) does not yet arise.

0. 12 r. 7 White Book sets out circumstances and. grounds on which writ may be set aside. 0. 12 r. 1

……………..

In this case, the application to enter conditional appearance does not seek to impugn the writ or service thereof for irregularity, or the jurisdiction of the Court……………..Deft. has made both applications in one."

5

In his argument in the court below, counsel for the respondent submitted that under the Rules of Court, a conditional appearance required the leave of the court and...

To continue reading

Request your trial