Hugh Blanco Applicant/Defendant v Federal Investments Ltd Respondent/Plaintiff [ECSC]

• Jurisdiction: Grenada
• Judge: CECIL LEWIS C.J.(Ag.),ST. BERNARD, J.A.,LOUISY J.A.(Ag.)
• Judgment Date: 20 July 1973
• Judgment citation (vLex): [1973] ECSC J0720-1
• Docket Number: Motion No. 1 of 1973
• Court: Court of Appeal (Grenada)
• Date: 20 July 1973

[1973] ECSC J0720-1

IN THE COURT OF APPEAL

Before:

The Honourable Chief Justice (Ag.)

The Honourable Mr. Justice St. Bernard

The Honourable Mr. Justice Louisy (Ag.)

Motion No. 1 of 1973

Between:

Hugh Blanco

Applicant/Defendant

and

Federal Investments Ltd.

Respondent/Plaintiff

E.A. Heyliger for Applicant

G.E.D. Clyne for Respondent

CECIL LEWIS C.J.(Ag.)

1 This is an application by the applicant/defendant Hugh Blanco for leave to appeal to Her Majesty in Council from a decision of this Court delivered on January 25, 1973. The application is made under section 106(2)(a) of the Constitution of Grenada which reads as follows—

"Subject to the provisions of section 37(7) of this Constitution, an appeal shall lie from decisions of the Court of Appeal to Her Majesty in Council with the leave of the Court of Appeal in the following cases—

• (a) where in the opinion of the Court of Appeal the question involved in the appeal is one that, by reason of its great general or public importance or otherwise, ought to be submitted to Her Majesty In Council, decisions in any civil proceedings; …. "

2 The question involved in the appeal is stated in the applicant's notice of motion as follows:—

"Whether, notwithstanding the provisions of 0. 18 r. 1 of the Rules of the Supreme Court 1970 no statement of claim is required where a writ is endorsed for a liquidated demand under Order 6 rule 2(b)."

3 The facts leading up to this application are as follows—On March 23, 1972 the respondent/plaintiff issued a writ against the applicant in Suit No. 135 of 1972. Appearance was entered on March 29, 1972.The respondent/plaintiff's writ contained a claim for a debt amounting to $402.45 and was endorsed in accordance with the provisions of Order 6 rule 2(1)(b) in the following terms:

"THE PLAINTIFFS' Claim is for money due and owing by the Defendant to the Plaintiffs for the price of goods sold and delivered to the Defendant by the Plaintiffs at the Defendant's request.

1972 March

To this amount due and owing by the Defendant to the Plaintiffs for gasolene sold and delivered to the defendant by the Plaintiffs at the Defendant's request during the period 31st August 1969 to 18th September 1969, detailed particulars of which have been already supplied to the Defendant …….. $402.45 The Plaintiff Claims: $402.45 And $35.00 for costs. If the amount claimed and costs be paid to the Plaintiffs or their Solicitor or Agent within 8 days after service hereof (inclusive of the day of service) further proceedings will be stayed."

4 The applicant did not enter a defence to the claim and on May 19, 1972 the respondent/plaintiff entered judgment in default of defence for the sum claimed in the writ and costs amounting to $35. On September 11, 1972, the applicant applied to this court for an extension of time within which to file an appeal against the default judgment. In support of his application he urged that (a) no statement of claim was served on the defendant (b) the writ of summons filed and served in the action was not endorsed with nor was it accompanied by a statement of claim; and, consequently, there was no authority enabling the plaintiff to enter judgment in default of defence in the circumstances in which it was entered.

5 When the application came before this court—it was contended on behalf of the applicant that the appropriate form of writ which the respondent/plaintiff should have used was Form No. 2 in the Appendix A to the Rules of the Supreme Court, 1970, which font, relates to a writ of summons with a statement of claim endorsed thereon; that the writ failed to contain the words "statement of claim" and the note appearing in the said Form No. 2; and therefore no statement of claim was endorsed thereon.He accordingly contended that by reason of these omissions in the writ the default judgment was irregular as no statement of claim had been served on the applicant. The acting Chief Justice who delivered the judgment of the Court in which the other members concurred said he was unable to accept these submissions and that the substance of the matter had to be looked at. He held that the writ of summons issued by the respondent/plaintiff fell squarely within the provisions of 0. 6 r. 2(l)(b); that there was before the court a writ endorsed with a claim for a liquidated debt with a statement of the amount claimed in respect of the debt in the sum of $402.45; that the writ contained a claim for costs and also a statement that if within eight days after service of the writ (inclusive of the day of service) the amount claimed and costs be paid, further proceedings will be stayed. He concluded his judgment with these words

"In my opinion, the form of writ appropriate to this type of claim is Form No. 1 in Appendix A to the Rules of the Supreme Court and the plaintiff/respondent is accordingly not required to serve a statement of claim, and was entitled to enter final judgment in default of defence under 0. 19 r. 2, the time for serving the defence having expired".

6 The application was accordingly refused.

7 In the present application before the Court, counsel for the applicant concedes that he has to satisfy the court that the question which he has raised is of great general or public importance before he can obtain leave to appeal, and he urged the following grounds in support of his application: (a)the question Involves a principle of law of general local application, viz:, the interpretation of 0. 6 r. 2(1)(b) and 0. 18 R. 1 of the Rules of the Supreme Court, 1970...