Williams, Girvan v Omotoso Uzwale

• Jurisdiction: Jamaica
• Judge: DAYE, J (Ag.)
• Judgment Date: 22 November 2002
• Judgment citation (vLex): [2002] 11 JJC 2201
• Date: 22 November 2002
• Court: Supreme Court (Jamaica)
• Docket Number: SUIT NO. C.L. 1996/W 239

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

SUIT NO. C.L. 1996/W 239

BETWEEN

GIRVAN WILLIAMS

PLAINTIFF

AND

OMOTOSO UZWALE

DEFENDANT

IN CHAMBERS

CIVIL PROCEDURE - Summons - Setting aside of proceedings ex debito justitiae - Whether judgment irregular - Whether judgment null and void

DAYE, J (Ag.)

1 The issue in this summons to set aside proceedings rest on whether the writ of summons dated the 5 Sept. 1996, which commenced this action was served on the applicant/ defendant.

2 The applicant/defendant contends the writ of summons and the Statement of Claim was not served on him and challenges the affidavit of Detective Corporal Ross of September 8, 1996. He further contends that the judgment and all proceedings accordingly were irregularly obtained and applies them be to set aside ex debito (italics) justitiae.

3 I accept as a the principle of law that any judgment obtained without jurisdiction, e.g. without a writ being served or not properly served, can be set aside as a nullity by this court in its inherent discretion. I accept also that it is never too late to set aside an order made without jurisdiction.

4 Having heard the submissions of law of counsel on both sides I formed the view that there were issues of fact concerning the writ of summons to be determined. This was necessary before the law could be applied.. As a result counsel agreed with the suggestion of the court that Detective Corporal Ross should be called for cross examination.

5 He attended the hearing and gave oral evidence and was cross examined. The applicant countered this evidence by calling a witness from his place of employment through whom a record of attendance was admitted, as exhibit sought to prove that he was at work when the writ of summons was allegedly served on him. On the evidence I found the witness Detective: Corporal Ross to be frank and truthful about the service of the writ of summons. I hold the applicant was not at work when the writ of summons was served on him. The evidence of system of keeping the record of attendance and the process of checking in and out of employees at the applicant's place of employment is unreliable and does not satisfies me that he was at work at the relevant time. I find on a balance of probability:

• 1. Detective Corporal Ross served the writ of summons on the 8 Sept. 1996 on the applicant.

• 2. The witness Ross made an error in the affidavit of service which stated the writ was...