Archibald (Jacqueline) v Lester Roberts
Jurisdiction | Jamaica |
Judge | K. HARRISON, J.A : |
Judgment Date | 20 December 2007 |
Neutral Citation | JM 2007 CA 73 |
Judgment citation (vLex) | [2007] 12 JJC 2013 |
Court | Court of Appeal (Jamaica) |
Date | 20 December 2007 |
SECURITY FOR COSTS - Payment - Application for extension of time
This is an appeal from the judgment of His Honour Mr. Oswald Burchenson, Resident Magistrate for the parish of Manchester, who on the 6 th March, 2007 ordered the defendant Jacqueline Archibald ("the Appellant") to vacate premises situate at Greenvale Road, Mandeville, Manchester on or before June 5, 2007. A Notice of Appeal was filed in the Mandeville Resident Magistrate's Court on the 20 th March, 2007 but the payment of security for the due prosecution of the appeal and the security for the payment of costs of the appeal were not paid into court until the 22 nd March, 2007.
In view of the late payment, the Appellant made an application to the Court of Appeal on July 3, 2007, for an extension of time for payment of the security for the due prosecution of the appeal. At this hearing, the Respondent made a preliminary objection contending that there was no appeal before the Court. The objection succeeded and on July 4, 2007 we dismissed the appeal with costs to the Respondent. An oral judgment was delivered and we promised then to put our reasons in writing for dismissing the appeal. This is a fulfilment of that promise.
The background facts
On June 7, 2007 the Appellant had filed an amended application in the Registry of the Court of Appeal seeking the following orders:
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1. That leave be granted for stay of execution of the Judgment dated March 6, 2007 pending the hearing of the Resident Magistrate Civil Appeal; and
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2. That service of the Notice and Grounds of Appeal be regularized and time extended for service of the Notice and Grounds of Appeal.
On June 27, 2007 a further amended notice of application was filed seeking the following orders:
"(1) ...
(2) That the time for the payment of the securitv for costs of the appeal and for the due and faithful performance of the judgment and orders of the court of appeal and for the service of the Notice of Grounds of Appeal be extended by the court and same accordingly be regularized.
(3) ....."
The Appellant alleged that her non-compliance was unintentional and done through inadvertence.
An affidavit in support of the application which was sworn to on the 27 th June 2007 by Stephanie N. R. Gritton deposed Inter alia:
"(1)....
(2) ....
(3) That a Notice of Appeal in this matter was filed on the 20 th March, 2007 by my office.
(4) That on that date I was requested to file the Notice of Appeal in Mandeville as I had been asked to assist in this matter as Messrs. Patrick Bailey & Co., Attorneys at Law who do not have an office in Manchester.
(5) That the funds to pay the security for the Appeal were sent in cash to my bank account in Mandeville on March 21, 2007.
(6) That unfortunately I was not aware that both Notice of Appeal and the security for the due prosecution of the Appeal would have to be submitted together. That the funds were accepted by the Mandeville Resident Magistrates Court on the 22 nd of March 2007 (sic) and I was not aware that there had been any problems in respect of same.
(7) That this was inadvertent and not intended to delay the matter and I had not realized the implication thereof.
(8) That I am instructed and do verily believe that the Appellant has an appeal with great prospects of success.
(9) In the circumstances, I humbly pray that the time to file the Notice of Appeal be extended".
Dukharan, J.A (Ag.), granted an interim order for stay of execution and ordered that the matter be heard inter partes . On June 19, 2007 McCalla, J. A. (as she then was), adjourned the application into open court for hearing.
The objection in limine
Mr. Owen Crosbie who appeared for the Respondent, submitted that there was no appeal in existence at the time when the matter was dealt with by Dukharan, J.A. (Ag.), since section 256 of the Judicature (Resident Magistrates)...
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