Lennox Slinger Applicant v W. E. Julien Estate of W. S. Mitchell Estate of A.W. Lewis Grenada Baking Company Ltd Respondents [ECSC]

• Jurisdiction: Grenada
• Judge: LEWIS, C.J.,GORDON, J.A.,CECIL LEWIS, J.A.,Chief Justice
• Judgment Date: 03 November 1970
• Judgment citation (vLex): [1970] ECSC J1103-1
• Docket Number: Motion No. 1 of 1970
• Court: Court of Appeal (Grenada)
• Date: 03 November 1970

[1970] ECSC J1103-1

IN THE COURT OF APPEAL

Before:

The Honourable the Chief Justice

The Honourable Mr. Justice Gordon

The Honourable Mr. Justice P. Cecil Lewis

Motion No. 1 of 1970

IN THE MATTER OF THE COMPANIES ORDINANCE CAP. 47

and

IN THE MATTER OF THE GRENADA BAKING COMPANY LIMITED

Between:

Lennox Slinger

Applicant

and

W. E. Julien

Estate of W. S. Mitchell

Estate of A.W. Lewis

Grenada Baking Company Limited

Respondents

A.Williams for Applicant

C. St. Bernard for Respondents

LEWIS, C.J.

1 This is an application on behalf of one Lennox Slinger who wishes to appeal against a decision of the High Court ordering the winding up of a company given on the 23rd of July, 1970. Under rule 14 (1) of the Court of Appeal Rules Notice of Appeal should have been filed within 21 days from the date of the judgment. That time would have expired on the 13th of August.

2 On the 26th of August, 1970, the applicant tendered at the Registry a notice of appeal and this was erroneously accepted and entered as a proper notice of appeal. Subsequently in October the applicant, by his solicitor, went before a Justice of Appeal with an application for extension of time. He purported to go under rule 14 (3) which says that a judge of the Court may by order extend the time prescribed in paragraph (l) of this rule within which an appeal may be brought provided an application for this purpose is made within one month of the expiration of the time so prescribed. The time allowed for filing that application, one month, had already expired and it was dismissed. Thereafter, on the 26th of October, this motion was filed. It was supported by an affidavit in which the solicitor, Mr. Derek Knight, takes upon himself the whole blame for the lateness of the filing of the notice of appeal and of these proceedings. He said he made an error in advising himself that the time limit for the bringing of the appeal was 6 weeks after the order. Apparently he also made an error in advising himself that he should go before a single judge for an extension of time after the period of one month. Both he and the Registrar made a further error, which of course was only discovered during the course of this hearing, in that although his application had been rejected by a single judge and there was in fact no appeal properly lodged he was able to persuade the Registrar to settle the record.

3 The rule under which this appeal was brought, rule 14 (4), says—

"In exceptional circumstances the Court having power to hear and determine an appeal, may on application extend the time within which an appeal may be brought although the period delimited for an application to a Judge of the Court under this rule has expired."

4 Rule 14 (5) says –

"Every application for enlargement 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 an affidavit setting forth good and substantial reasons for the application and by grounds of appeal which prima facie show good cause therefor."

5 Now in his affidavit the solicitor says that "I verily believe that the appellant has good grounds of appeal and that great hardship will be caused to him if he is not allowed to proceed with his appeal." He has attached to the papers with which the Court has been supplied a document marked "Civil Appeal No. 6 of 1970" which purports to be a notice of appeal and sets out the grounds of appeal.

6 Counsel for the applicant has urged the Court to accept the mistake of the solicitor as being "exceptional circumstances" and "good and substantial reasons" for which the Court should exercise its discretion to grant his application and extend the time. He has referred the Court to the well-known case of Gatti v. Shoosmith (1939) 3 All E.R. 916 in which the Court of Appeal in England held, on the interpretation of Order Six rule 7, that the Court had an unfettered discretion to grant an extension of time, and, in a case where there was a misinterpretation by a solicitor's clerk as to the time within which notice of appeal should be lodged under Order 58, rule 15, held that this was a proper ground on which the Court would grant an extension.

7 Order 58, rule 15 of the English Supreme Court Rules was re-worded some time in 1909 because the attention of the Court had been drawn in more than one ease to the fact that the rule as it stood required special leave to appeal and that there must be special circumstances which...