Hewlett v Antigua Beach Hotel Ltd

• Jurisdiction: Antigua and Barbuda
• Court: High Court (Antigua)
• Judge: Bishop J.
• Judgment Date: 10 August 1976
• Neutral Citation: AG 1976 HC 2
• Docket Number: No. 26 of 1976
• Date: 10 August 1976

High Court

Bishop, J.

No. 26 of 1976

Hewlett

and

Antigua Beach Hotel Limited

Practice and procedure - Judgment — Setting aside — Whether Court of Summary Jurisdiction had power to set aside its judgment — Whether a defence on the merits existed — Whether there was a delay in making application.

Bishop J.

1 On Saturday 1 ^st May this year, at a sitting of the court of Summary Jurisdiction, Charles Ashon Shelley Hewlett was awarded judgment in the sum of $125.00 with costs $117.25 against Antigua Beach Hotel Limited.

2 It is agreed that the judge was regularly obtained.

3 This application before me now seeks to set aside the said judgment. No ground was stated in the summons which was filed on 12 ^th May but when the matter first came on for hearing on 14 ^th July, learned counsel for the applicant advised that the ground was Athat the judgment was given in the absence of the defendant Company which did not have opportunity to be defend.

4 As affidavit sworn to by Brian Gonsalves was filed in support of the application, and at the first hearing learned counsel for the applicant was granted leave to file a supplemental affidavit, there being no objection to his request so to do

5 On the 6 ^th August the hearing was resumed. Learned counsel for the applicant completed his address and then learned counsel for the respondent addressed and asked that the application be dismissed with costs.

6 In support of the contention that the judgment should be set aside, Mr Watt dealt with the facts disclosed in the affidavits and he relied upon section 39 of the Summary Jurisdiction Act, Cap. 80, and the West Indies Associated States Supreme Court Act 1969 (no specific section mentioned). As I understood counsel he urged that by virtue of 39 of Cap. 80, the provisions of the Act of 1969 ought to be applied to the instant application; and it is not without significance that at this stage, Mr. Forde pointed out that he was not contesting the procedure used to bring the application. Then Mr. Watt further urged that a judge of the court of Summary Jurisdiction was clothed with the same powers and rights as a Judge of the High Court, and if this court was satisfied that there was a defence and that the defendant company had not been dilatory bringing its application, then this court has the power to set aside the judgment.

7 In opposing the application Mr. Forde referred to the entire Summary Jurisdiction Act, Cap. 80, and he said that nowhere in that Act was there any power or authority given to this court to set aside its judgment. Counsel contended strenuously that the Court of Summary Jurisdiction is a creature of Statute with its powers all expressed “in extenso” in the statue creating it.

8 By way of assistance to this court, Mr. Forde referred to section 38 of the Cap.80, wherein the judge is given power to order a new trial; and he contended that in the circumstances of the instant application a new trial could not be ordered because no irregularity in the proceedings nor any fraud had been alleged by the applicant. Mr. Forde also submitted that (a) setting aside a judgment is not a matter of procedure which would fall within section 39 of Cap. 80 but is, what he termed, a “jurisdictional point,” and (b) the proper procedure was to appeal against the decision of the Court of Summary Jurisdiction to the Court of Appeal.

9 Learned Counsel for the respondent also dealt, though briefly, with the facts in this matter H urged that the events which occurred in the office of the applicant's solicitor ought not to attract attention of the court, and he commented that some of the facts deposed to in the affidavits were untrue or irreconcilable or stated mala fide. It was Mr. Forde's view that a counter affidavit was not necessary in this matter.

10 Mr. Watt replied and submitted that (i) section 39 clearly allowed - in the absence of rules for the Summary Court - for the rules of Supreme Court to apply; (ii)...