Martin Francis Defendant/Appellant v Elizabeth Amelia Ambrose (Administratrix of the Estate of Percival Wallace Ambrose, Deceased) Plaintiff/Respondent [ECSC]

CourtEastern Caribbean Supreme Court
Docket NumberCivil Appeal No. 1 of 1970
JudgeGORDEN, C.J. (Ag.), Acting Chief Justice
Judgment Date29 Apr 1970
JurisdictionCaribbean States
Neutral Citation[1970] ECSC J0429-1
[1970] ECSC J0429-1

IN THE COURT OF APPEAL

Before:

The Honourable the Acting Chief Justice

The Honourable Mr. Justice P. Cecil Lewis

The Honourable Mr. Justice St. Bernard (Ag.)

Civil Appeal No. 1 of 1970

Between:
Martin Francis
Defendant/Appellant
and
Elizabeth Amelia Ambrose (Administratrix of the Estate of Percival Wallace Ambrose, Deceased)
Plaintiff/Respondent

Daniel Williams for the Appellant

E.A.C. Hughes for the Respondent

GORDEN, C.J. (Ag.)
1

On the 13th of February, 1970 the appellant in this case filed what purported to be an appeal from an order which Peterkin J. made on the 14th January, 1970. The order if was in the following terms:—

(1) That the hereditaments described in the Schedule to the Summons filed herein on the 3rd day of November, 1969, (hereinafter called "the premises") be sold in satisfaction of the judgment debt, interest and costs outstanding In this Suit.

(2) That an affidavit of valuation of the premises be sworn by a competent valuator to be selected by the Plaintiff such affidavit to be filed herein.

(3) That subsequent to the filing of the affidavit of valuation the terms of the sale shall be fixed by the Registrar and approved by the Court.

2

On the 14th February, 1970, on an application made by the defendant/appellant the trial judge made an ex parte order enlarging the time for filing the appeal to the 25th February, 1970. The record of appeal was not filed until the 8th April, 1970.

3

On the appeal coming on for hearing before this Court yesterday counsel for the respondent sought the leave of the Court to argue certain preliminary objections which he filed on the 2hth April, 1970, and served on the defendant that day even though it was not in strict compliance with Rule 18 (1) of the Court of Appeal Rules 1968, (hereinafter referred to in this Judgment as the Rules) which provided that 3 clear days notice of such objections should be given.

4

Having regard to the fact that the preliminary objections in question merely raised questions of fact as to whether certain documents were or were not filed on specific dates, and the fact that the Court on hearing counsel for the appellant was satisfied that no prejudice or hardship could result to him, in accordance with rule 18 (2) of the Rules gave leave for the preliminary objections as filed to be argued.

5

Counsel for the respondent urged on the Court that the order appealed from was in the nature of an interlocutory order, and as such an appeal should have been lodged within 14 days as provided for by rule 14 (1) (a) of the Rules, and further that the notice of appeal was not filed in accordance with rule 15 (1) in that no true copy of the notice of appeal had been served on the respondent within the seven days specified in sub-rule 2 of that rule.

6

Continuing, counsel pointed out that inasmuch as the appeal was lodged on the 13th February, 1970, and the record filed on the 8th April, 1970, the record had not been filed...

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