Margaret Kidd v Shenette Arju & Richard Gordon

• Jurisdiction: Jamaica
• Judge: Campbell J.
• Judgment Date: 27 May 2002
• Judgment citation (vLex): [2002] 5 JJC 2701
• Court: Supreme Court (Jamaica)
• Date: 27 May 2002

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

BETWEEN

MARGARET KIDD

PLAINTIFF

AND

SHENETTE ARJU

1 ^ST DEFENDANT

AND

RICHARD GORDON

2 ^ND DEFENDANT

^nd

CIVIL PROCEDURE - Stay of execution - Motion - Application for enlargement of time to set aside final judgment pursuant to Judicature (Civil Procedure Code) Law, s. 676

Campbell J

1 On the 27 ^th December 2001 the 2 ^nd Defendant filed a Relisted Notice of Motion dated 3 ^rd July 2001, for Stay of Execution and to set aside Service of the Writ of Summons and all subsequent proceedings.

2 The Notice sought the following Orders:

• 1) There be a stay of execution of the Judgement herein.

• 2) That the service of the Writ of Summons and all subsequent proceedings herein be set aside.

• 3) In the alternative, that the time within which to apply to set aside the Final Judgement be enlarged in accordance with section 676 of the Judicature Civil Procedure Code Law.

• 4) That the Final Judgement herein be set aside in accordance with Section 354 of the Judicature Civil Procedure Code Law and an Order made for damages to be reassessed.

• 5) No Order as to Costs.

• 6) Further and/or other relief.

3 The Court was advised by Counsel for the 2 ^nd Defendant that only paragraphs 3 and 4 were being proceeded with, and that the application to set aside the default judgement was being withdrawn.

4 The challenge was therefore, to the Final Judgement. The notice was supported by the affidavit of Richard Gordon sworn to and filed on the 11 ^th July 2001, in which Mr. Gordon depones; inter alia;

• 1. That I reside and have my true place of abode and postal address at Apartment No. 7, 73 Shortwood Road, Kingston 8 in the parish of St. Andrew, and I am the second Defendant herein.

• 2. That sometime in 1998 I received a Writ of Summons naming me as a Defendant at the suit of the Plaintiff upon which I consulted an attorney-at-law for advice on how to proceed with the matter. That the said attorney-at-law, upon perusing the documents, informed me that the Writ of Summons was not sealed nor filed and a suit number was not endorsed thereon and as such, it was irregular and I should await a further document from the Plaintiff. Accordingly, I did not instruct an attorney-at-law to enter an appearance on my behalf after I received the said document.

• 3. That I received no further documents or correspondence pertaining to this suit until the Bailiff attended at my home on the 25 ^th of June 2001 to execute a Writ of Seizure and sale for a judgement obtained by the Plaintiff against me therein.

• 4. That the cause of action herein arose from a road traffic accident in which I was involved in or around March 1998 when the vehicle I was driving collided with the Plaintiff's vehicle.

5 Stephen Jeffery Mordecai filed an affidavit dated 4 ^th October, 2001 on behalf of the Plaintiff, he states inter alia;

• 5. That I have been served with and have perused the affidavit of Richard Gordon, the Second Defendant herein, sworn to on July 11, 2001 and filed herein.

• 6. That in paragraph 2 of the said affidavit, the Second Defendant alleges that he consulted an Attorney-at-law for advice on receiving the Writ of Summons herein.

• 7. That in October 1998, I received a "Without Prejudice" letter from Jennifer Messado and Company signed by Lanza Turner-Brown (Mrs.) which letter

  • a) stated the correct suit number C.L K025/98,

  • b) made no reference to or allegation that the Writ of Summons was not sealed or filed or was irregular and

  • c) requested details of the Plaintiff's claim be sent to the said Attorney.

• 8. That since having knowledge of the Second Defendant's allegation as to the Writ of Summons served on him, I have made inquires or my then legal clerk, Rodney Bushay, who on or about the 25 ^th July 1998 served the Second Defendant personally.

• 9. That I am informed by the said Rodney Bushay that the Writ of Summons served on the Second Defendant was duly sealed, filed and was issued out of the Supreme Court Registry bearing Suit No. C.L. K025/98.

• 10. That the Writ of summons which the Second Defendant admits receiving, stated his address as 73 Shortwood Road, Kingston 8 and, accordingly, he was aware from as early as September 1998 that there was no apartment number stated on the Writ of Summons.

• 11. That the Attorneys who wrote on behalf of the second defendant were informed by my letter to them dated February 21, 2000 that the Assessment of Damages herein was set for May 11, 2000 and that letter enclosed a copy of the Statement of Claim in Suit C.L. K025/98.

6 Section 354 of The Judicature (Civil Procedure Code) Law. Provides that;

"Any verdict or Judgement obtained where any party does not appear at the trial may be set aside by the Court or a Judge upon such terms as may seem fit, upon an application made within ten days after the trial."

7 It was common ground that the assessment of damages constituted a trial for the purposes of S354. This is supported by the decision of the Court of Appeal in Mills v Lawson and Skyers (1990), 27 J.L.R. at page, 196 Carey J.A., said;

"Mrs. Benka-Coker for the respondents, seemed to think that a civil trial necessarily required a determination of liability as well as damages at one and the same time....The argument, is demonstrably unsound. On either issue, a judicial determination is called for. The party, in these circumstances the plaintiff would be required to prove his claim, he must discharge the burden of proof cast upon him. He must call evidence which the Judge must hear and consider. He must then decide as a matter of law whether the claim (whether it be as to liability or as to damages) has satisfied the standard of proof necessary.

I think also, that the argument fails, because there are not words in Section 354 limiting the word "trial" to cases where liability and damages are required to be determined, as opposed to liability or damages. Both are issues which fall to be...