St. Kitts Apparel Ltd v The Bank of Nevis

• Jurisdiction: Saint Kitts and Nevis
• Judge: Floissac, C.J.,Byron, J.,Joseph, J.
• Judgment Date: 26 March 1992
• Neutral Citation: KN 1992 CA 6
• Docket Number: Criminal Appeal No. 7 of 1991
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 26 March 1992

Court of Appeal

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

Criminal Appeal No. 7 of 1991

St. Kitts Apparel Ltd.

and

The Bank of Nevis

Appearances:

Dr. Henry L. Browne and Miss M. Walwyn for appellant

Mr. C. Wilkin for respondent

Practice and Procedure - Appeal — Application for leave to file Record of Appeal out of time — Appellant filed Notice of Appeal against judgment — Failed to file Record of Appeal within prescribed six (6) week period — Respondent filed motion for dismissal of appeal for want of prosecution — Appellant filed motion seeking leave to file Record of appeal and of time — Whether time for filing record should be extended.

JUDGMENT OF THE COURT:

1 On 22 ^nd July, 1991 the appellant filed Notice of Appeal against judgment of Singh J. delivered on 20 ^th June, 1991, but failed to file the record of Appeal within the six week period which expired on 2nd September 1991, as required by Order 64, rule 11 (1).

2 Following that default the respondent filed a motion on 10 ^th March 1992 for the dismissal of the appeal for want of prosecution pursuant to Order 64, r. 13 (2), and in response thereto the appellant filed a motion on 20 ^th March 1991 seeking leave to file the record of Appeal out of time.

3 The court has power to dismiss the appeal for this default vide Order 13, rule 2 which reads:–

“If the appellant has failed to comply with the requirements of paragraph (1) of Rule 11 the respondent may apply to the court to dismiss the appeal for want of prosecution and the court, if satisfied that the appellant has so failed, may dismiss the appeal or make such order as the justice of the case may require.”

4 The court also has power under Order 3, rule 5 to extend the time for filing the record, but the appellant did not avail itself of this jurisdiction until its application for leave filed on 20 ^th March, 1992. In advancing the reason for this delay the appellant's affidavit disclosed that the notes of evidence were delivered on 27 ^th September, 1991 and due to the illness of its solicitor the record could not be completed for the sitting of the court in October 1991. The appellant, however, gave no explanation whatsoever for its failure to prosecute the appeal during the period that elapsed between October 1991 and March 1992.

5 Courts have often ruled that the discretion to extend the time for filing a record of appeal will not be exercised where good and sufficient reasons for...