Ernest Randolph Henry (Plaintiff-Appellant) v Bank of Nova Scotia Trust Company (Caribbean) Ltd, Lawful Attorney of Adeline Agatha Lewis Adeline Agatha Lewis (Defendants-Respondents) [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: PETERKIN J.A. (ag.),ST. BERNARD J.A.,Acting Chief Justice
• Judgment Date: 26 June 1974
• Judgment citation (vLex): [1974] ECSC J0626-1
• Docket Number: CIVIL APPEAL NO. 7 of 1971
• Date: 26 June 1974
• Court: Court of Appeal (Antigua and Barbuda)

[1974] ECSC J0626-1

IN THE COURT OF APPEAL

Before

The Honourable the Acting Chief Justice

The Honourable Mr. Justice St. Bernard

The Honourable Mr. Justice Peterkin

CIVIL APPEAL NO. 7 of 1971

Between:

Ernest Randolph Henry

(Plaintiff-Appellant)

and

Bank of Nova Scotia Trust Company (Caribbean) Ltd., Lawful Attorney of Adeline Agatha Lewis

and

Adeline Agatha Lewis

(Defendants-Respondents)

C.E. Francis and K. Forde for the appellant

Bruce Propope, Q.C. (T'dad) and F. Clarke for the respondents.

PETERKIN J.A. (ag.)

1 The appellant claimed as a beneficiary under a will dated 8th May 1954, of Ernest Victor Henry, deceased, late of Ffreys Estate in the Parish of Saint Mary, in the Island of Antigua, farmer, who died between the 27th and 23th days of November 1964, to have letters of administration with a will of the said deceased dared 1950 annexed and granted on the 20th day of January 1969, revoked, and the said will pronounced against, and in lieu thereof to have a grant of letters of administration of the estate of the said deceased, with the will dated 8th May, 1954, annexed.

2 The respondents sought in their counterclaim to have the Court pronounce against the will propounded by the appellant, and prayed in any event that administration of the testator's estate should be granted to the second named respondent, she being the sole living person entitled to the estate of the testator on an intestacy. The respondents also asked for an order approving all just costs and expenses incurred on behalf of the estate up to the date of hearing as a charge against the estate.

3 The learned trial judge in the course of his judgment delivered on 1st June, 1970, stated as follows—

"I have examined the evidence adduced carefully and considered it fully and I find—

(a) That the will dated 8th May, 1954, was signed by Ernest Victor Henry the testator.

(b) That the witnesses Cassilla E. Francis and Adolphus W. Williams are the witnesses to the said will.

(c) That the will was signed in the presence of the witnesses by the testator at his request.

(d) That the witnesses signed the will in the presence of the testator and in the presence of each other.

(e) That Ernest Victor Henry signed the will first then Cassilla E. Francis, then Adolphus W. Williams.

(f) That the testator knew and approved of the contents of the will.

(g) That the testator did not direct anyone to destroy the will for him.

In my view, the will dated 8th May, 1954, is a valid will and unrevoked and being a later will than that dated 25th April 1950 revokes that will."

4 Later in his judgment he continued as follows—

"In view of what I have stated above I would give judgment as follows:—

(a) I order that letters of administration with the will annexed dated 20th January, 1969, be revoked.

(b) I declare the will dated 8th May, 1954, to be the tine last will of the deceased Ernest Victor Henry.

(c) I declares the person entitled to a grant of letters of administration with the will annexed to be the second-named defendant, and

(d) Order that accounts be taken of all dealings by the defendants with Ffreys Estate.

5 At the trial of this action the question of costs was reserved and is to be argued on the delivery of this judgment."

6 On l7th November 1971 the trial judge heard argument on the question of costs, and on the 19th November 1971 he ordered as follows—

"that the costs of the plaintiff and the defendants be taxed and paid out of the estate."

7 Notice of Appeal dated 20th December 1971 was filed on 22nd December 1971.

8 At the hearing of this appeal, counsel for respondents raised a preliminary objection. He contended that the judgment delivered on 1st June 1970 finally determined all the issues between the parties raised in the pleadings, and all that remained was the question of costs of the action. He therefore argued that the proper time to have challenged the judgment was within six weeks of the date of its delivery, (Vide Order 64 Rule 5...