Amory et Al v Clendoinen

• Jurisdiction: Saint Kitts and Nevis
• Judge: Floissac, C.J.,Byron, J.A.,Joseph, J.A.
• Judgment Date: 27 March 1992
• Neutral Citation: KN 1992 CA 7
• Docket Number: Crim. Appeal No. 1 of 1992
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 27 March 1992

Court of Appeal

Floissac, C.J. Byron, J.A., Joseph, J.A. (Ag.)

Crim. Appeal No. 1 of 1992

Amory et al

and

Clendoinen

Appearances:

Mr. T. Byron for the appellant

Mr. L. L. Moore for the respondent

Practice and procedure - Judgment in default of appearance against appellants — Application to set aside — Judgment set aside and costs ordered to be paid — Whether order to set aside irregular — Whether costs should be paid in the circumstances.

1 Matthew, J.A. (Ag.): On March 28, 1991 the respondent Dora Clendoinen, then plaintiff, filed a Suit against the appellants Ashton Amory Sr. and Ashton Amory Jr. then defendants, claiming from them, jointly and generally damages and costs.

2 No appearance to this Suit was entered within eight within eight days after service of the Writ as is required by order 12, rule 4 of the Rules of the Supreme Court (Revision) 1970, and so, on April 17, 1991 the respondent entered judgment in default of appearance purportedly under order 13, rule 1, of the Rules of the Supreme Court.

3 The appellants by summons dated May 25, 1991 sought to set aside the judgment in default. The affidavits in support of the summons were to the effect that the appellants had a good defence to the action. The solicitor for the respondent and the solicitor's Clerk swore to affidavits in support of the summons.

4 Before that summons could be dealt with by the learned judge, the appellants filed another summons on June 27, 1991 to set aside the same judgment in default of appearance, but on this occasion they set aside the same judgment in default of appearance, but on this occasion they set up another reason in support of their application, namely, that the

5 judgment was irregular in that it did not comply with order 13 rule 2 of the Rules of the Supreme Court.

6 Singh, J. after hearing arguments from both sides, on June 28, 1991, ordered that the application of the appellants be granted and that the judgment in default be set aside. He further ordered that the applicants be given the respondent be paid by the appellants. He also ordered that the costs of $1,000 was to be paid before the filing of the defence.

7 On July 12, 1991 the appellants filed a summons seeking leave to appeal against the judge's order just referred to above, and on July 19, 1991 the learned judge refused the application for leave to appeal.

8 On October 9, 1991, this court granted the necessary leave to the appellants to prosecute the appeal.

9 The grounds of the appeal as found at page 1 of the record are as follows:–

• “1. That the defendants are entitled to the setting aside of the judgment dated the 17th day of April, 1991 ex debito justitiae, and without any terms being imposed against them as to costs;

• 2. That the learned judge erred in awarding costs of $1,000 to the plaintiff in setting aside a judgment irregularly entered by the plaintiff when there were no proper materials before the learned judge upon which he could do so”.

10 As I stated earlier the respondent entered judgment in default of appearance pursuant to order 13 rule 1 of the Rules of the Supreme Court. That rule pertains to a claim for a liquidated demand only. But the statement of claim is in respect of a claim for unliquidated damages and any judgment in default of appearance in this circumstance should have been entered pursuant to order 13, rule 2 of the Rules of the Supreme Court.

11 The judgment in default of appearance entered on April 17, 1991 states –

• “(a) That the defendants Ashton Amory Sr. and Ashton Amory Jr. do pay the plaintiff the sum of $37,418.70.

• (b) That the defendants pay the costs of this action to be taxed”.

12 That judgment in the terms stated above would have been appropriate in the case of a default of appearance when the claim is for a liquidated demand.

13 In his ruling found at page 40 of the record, the learned trial judge stated –

“The judgment entered was irregular only on the ground that it was entered for a liquidated sum when the plaintiff's claim was for unliquidated damages. The judgment would have been perfect had it been entered for damages to...