Jones et Al v Century National Merchant Bank & Trust Company Ltd

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Wright, J.A.
• Judgment Date: 08 February 1993
• Neutral Citation: JM 1993 CA 6
• Docket Number: No. 18 of 1992
• Date: 08 February 1993

Court of Appeal

Wright, J.A.; Downer, J.A.; Wolfe (Ag.), J.A.

No. 18 of 1992

Jones et al

and

Century National Merchant Bank & Trust Co. Ltd.

Appearances:

D. Muirhead, Q.C. and L. Smith for appellants.

D. Goffe, Q.C. and M. Palmer for respondents.

Practice and procedure - Appeal — Extension of time to file record — Court of Appeal Rules 1962, rr. 30(1) and 32(1) — Application for leave for extension of time denied — Appellants' appeal dismissed for want of prosecution with costs to the respondent.

Wright, J.A.

1 On November 17, 1992, we dismissed with costs to the respondents to be agreed or taxed, the appellants' summons dated October 22, 1992, seeking leave to extend the time within which to file the Record and for an Order that the appellants have leave to file the Record within twenty-one days from the date of the grant of such leave. We thereupon granted, in terms, with costs to be agreed or taxed, the respondent's Notice of Notion dated October 14, 1992, for an Order:

“That the appellants' appeal be dismissed for want of prosecution and that the appellants do pay the costs of this application and costs of the appeal to be taxed, if not agreed.”

2 The reasons for our decisions are set out hereunder. The judgment against which the appeal was brought was delivered by Reckord, J. on January 31, 1992, whereby it was ordered that:

• “1. Leave is hereby granted for the plaintiff to enter final judgment against the defendants for such an amount as should he found due on the taking of an account by the Registrar together wig the interest thereon up to the date of judgment.

• 2. Costs to the plaintiff to be agreed or taxed.”

3 Purely as a matter of interest the grounds of appeal which were served and filed on February 14, 1992, are set out as follows:

• “1. The learned trial judge erred in law in not granting leave to the defendants/appellants to defend the action in that his finding that there is no basis for the defendants' claim that the note for the larger sum was negotiated on behalf of one of the Defendants' companies could only have been arrived at by a determination of the very issue which was triable.

• 2. The learned judge erred in law and in fact in finding that the plaintiff/respondent had filled in the material particulars strictly in accordance with the authority given, in that for the learned judge so to find required the determination of a triable issue, and further, in that the said determination is wholly against the weight of the evidence presented before him.

• 3. The Learned Judge erred in law in holding that the defendants/ appellants wore estopped from denying liability upon the promissory notes.

• 4. The learned judge erred in fact in not having found that there was any triable issue and an finding that there was no defence to the plaintiff/respondent's action, in that that finding is wholly against the weight of the evidence.”

4 The plaintiff's claim as endorsed on the writ is as follows:

• “1. The defendants made two (2) joint and several promissory notes dated March 7, 1989, both payable to the order of the plaintiff on demand.

• “2. One of the promissory notes was for Six Million Four Hundred and Fifty Seven Thousand Dollars ($6,457,000.00) with interest at the rate of 19 percent per annum as well after as before maturity.

• 3. The other promissory note was for Four Million Six Hundred and Thirty Thousand Dollars ($4,630,000.00) with interest at the rate of 19 percent per annum as well after as before maturity.

• 4. On November 13, 1990, at the plaintiff's place of business at 14-20 Port Royal Street, Kingston, the plaintiff presented the said notes to the defendant for payment but they were dishonoured.

• 5. The plaintiff claims against the defendants jointly and against each of then severally the principal sum of Eleven Million and Eighty Sever Thousand Dollars ($11,087,000.00), together with interest thereon at a rate of 19 percent per annum from March 7, 1989 until payment or judgment. As at November 15, 1990, such interest amounted to $3,572,447.00.”

5 The affidavit of Yvette Sibble, Legal Officer for the respondent, dated September 3o, 1992, in support of the application to dismiss the appeal states:

• “1. My true place of abode and postal address are at 5 Lipscombe Avenue, Kingston 9 in the parish of Saint Andrew and I am an attorney-at-law and Legal officer for the respondent Company. I am duly authorised to swear this Affidavit on its behalf.

• 2. I am advised by my attorneys-at-law and verily believe that the appellants filed their Notice and Grounds of Appeal on the 14 ^th February, 1992 and that the Record was settled on the 23rd April, 1992. The Record of Appeal should have been filed by the 1st April, 1992, but to date it has not been filed and no steps have been taken to obtain an extension of time for filing it.

• 3. I am further advised by my attorneys-at-law and verily believe that the appellants have failed to comply with the requirements of paragraph (1) Rule 30 of the Rules of the Court of Appeal and that under Rule 32 (1) of the said rules the court may dismiss the appeal. In the circumstances, I humbly pray that this honourable court will see fit to grant an order in terms of the Summons filed herein.”

6 It is, therefore, beyond a peradventure that but for this application to dismiss which was returnable on October 26 the appeal might still have lain dormant. Spurred into action the appellants, application returnable on November 10, 1992, was filed supported only by an affidavit by Lowell Smith, two appellants, attorney-at-law, the inadequacy of which is obvious on the merest reading thereof. It states:

• “2. That on the 31st day of January, 1992, on the hearing of the Summons for summary judgment taken out by the plaintiff/respondent herein, leave was given to the plaintiff to enter judgment against the defendants, from which decision an appeal was filed on the 14th day of February, 1992.

• 3. That the appellants' attorneys-at-law ware summoned by the Registrar of this honourable court to settle the Record on a date after the time limited for filing the same, viz the 23rd day of April, 1992.

• 4. That up to the 30th day of June, the defendants/appe11ants were represented by Messrs. Stephenson, Smith, Hemming & Green, attorneys-at-1aw, but the said firm was dissolved on that date.

• 5. That since the latter part of 1991, the first-named appellant (who had personal knowledge of the matters with which this litigation is concerned as well as direct conduct of the litigation on behalf of both appellants) has been away from the island on business, and subsequent to the time of the filing of the appeal and up to recently, he had not been in communication with his attorneys-at-law, by reasons of which it was not certain whether or not he still wished to proceed with the appeal.

• 6. That as a result of efforts on the part of the second-named appellant, I have already been put in a position to proceed with the matter on their behalf.

• 7. That I do verily believe what the Record can and will be ready for filing within 21 days if leave is given to file the same out of time.

• 8. That I further believe that the appellants have a goad appeal on the merits.

• 9. That in the premises, I hereby ask that this honourable court grant the application prayed in the Summons for leave and extension of time herein.”

7 On the disclosure made in paragraph 5 only charity would prevent Mr. Smith from being labelled an intermeddler seeing he had no clear indication of the appellants' intention.

8 The application to dismiss the appeal for want of prosecution came before the court on November 2 when the court was advised of the application which had been made and which was returnable on November 10. On Mr. Smith's application, an adjournment was granted with costs for fourteen days and on November 10 Wolfe, J....