Lake v Social Security Board of Control et Al

• Jurisdiction: Antigua and Barbuda
• Court: High Court (Antigua)
• Judge: Bishop J.
• Judgment Date: 24 November 1976
• Neutral Citation: AG 1976 HC 5
• Docket Number: No. 125 of 1976
• Date: 24 November 1976

High Court

Bishop, J.

No. 125 of 1976

Lake

and

Social Security Board of Control et al

Practice and procedure - Judgment — Setting aside — Whether judgment was regular — Whether a defence on the merits was disclosed.

Bishop J.

1 It was agreed that there were two summonses on record in this case, which could be considered at this stage without inconvenience or denial of justice to anyone.

2 The summons filed on the 19 ^th August 1976 was filed on behalf of the Social Security Board of Control the first named defendant, and in it this defendant sought an order “that the judgment entered in default of appearance on the 31 ^st July 1976 be ser aside on the ground that the first named defendant has a good defence to this action.”

3 The summons filed on the 15 ^th October 1976 was filed on behalf of Arthur Lake the plaintiff, who therein asked for an order the appearance purported to have been entered on behalf of the defendants on the 6h6 day of August 1976 without leave of the court be struck out and removed from the record as not having been entered in accordance with Rules of the Supreme Court 9i.e. Order 12 Rule 5 (1).

• (2) the summons and affidavit filed on the 10 ^th August 1976 on behalf of the defendants for an Order to set aside the judgment entered on the 31 ^st day of July 1976 be itself dismissed in view of the irregularity aforesaid, and also in view of its having been filed after the plaintiff had taken summonses in execution of the said judgment.

• 5. the defence or defences filed in this action on behalf of the defendants be declared void or stayed, in view of

• (a) the irregularity referred to in (1) above;

• (b) as judgment has been entered in the said matter

• (1) as matters relative to the said judgment are pending in Chambers and the defence would require continuation of pleadings and setting down for trial on court what amounts to one and the same claim or issue and might be deemed (if accepted) a waiver of the judgment or would nullify the matters pending in Chambers.

4 that judgment in default of appearance be entered against the other defendants, and that the costs of this application be the plaintiff's in any event.”

5 I think I ought to point out immediately that insofar as paragraph 2 of the summons (last mentioned) is concerned it is incorrect to state that the summons and affidavit filed on the 19 ^th day of August 1976 were filed on behalf of the defendants. It is also noteworthy that in the affidavit of Arthur Lake, sworn to on the 15ht October, he has stated that the summons was taken out on behalf of the first named defendant only (see paragraph 8).

6 I ought also to point out here that notwithstanding the mention of “summonses in execution of the said judgment.” in paragraph 2 of the summons of 15 ^th October there was no reference to any such “summonses in execution” in the affidavit in support; nor indeed did learned counsel for Arthur Lake deal with this aspect if the matter. Perhaps she did not do so as the evidence was lacking.

7 Now as far as the record in this case is concerned I have looked at it closely. The date of filling of the writ is not as cleat as it ought to be, but learned counsel for the parties have agreed that it was filed in the Registry on the 23 ^rd July. Not only the writ reflected a changed-in ink- to the date stamped on it, but so too died the affidavit of service of that writ on the Social Security Board of Control the Solicitor's certificate of search for appearance, the Registrar's certificate of non-appearance, the summons dated l9th August 1976 and the affidavit in support of that summons. It is highly undesirable that dates of filing of documents be altered. I find it difficult to understand why the date which any document is filed in the Registry cannot be stated unequivocally and clearly with a date-stamp before affixing the date on a document is incorrect then that stamped information ought to be properly cancelled by writing the word “cancelled” across it, and the cancellation then initialled by the person cancelling it. Thereafter, the correct date is stamped on the document, using the date stamp. The practice of writing, in ink, over the original date stamped on the document ought to be discontinued.

8 To return to the facts in the instant application it is agreed by learned counsel for the parties that the writ was served (1) on the Social Security Board of Control by leaving a true copy of the writ with Jack Kelsick the Director of the said Board on the 23 ^rd July (2) on the Attorney General on the 26 ^th July by delivering same to Conrad Richards and (3) on Reuben Harris as Minister of Finance by leaving a copy with a clerk-B. Henry - on the 26 ^th July. It is also agreed by both counsel that judgment in default of appearance was entered on the 31 ^st July against the first named defendant only.

9 Now under the provision of Order 12 Rule 4 of the Rules of Supreme Court 1970 the time for appearing in a case commenced by writ, such as is this case, is eight days after service of the writ including the day of service. So that the Social Security Board of Control had eight days after the 23 ^rd July, and the other defendants had eight days after the 26 ^th July, to enter appearance. It is agreed that these periods expired under normal circumstances on the 30 ^th July and 3 ^rd August respectively.

10 On the 6 ^th August a memorandum of appearance was filed in the Registry by the solicitor for the...