Frederick v Brooks

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Jamadar, J.A.
• Judgment Date: 10 March 2014
• Neutral Citation: TT 2014 CA 9
• Docket Number: Civil Appeal No. 256 of 2008
• Date: 10 March 2014

Court of Appeal

Jamadar, J.A.; Bereaux, J.A.; Smith, J.A.

Civil Appeal No. 256 of 2008

Frederick

and

Brooks

Appearances:

Ms. A. Daniel for the appellant.

Mr. J. Toney for the respondent.

Civil practice and procedure - Application to seek leave — Appeal against a decision not to allow the application to seek leave to extend the time to settle the record — Delay — Whether the appellant should be permitted to appeal and request a variance or discharge of the order of a single judge (Order 59 Rule 20 (2) of RSC) where there was inordinate delay and the adequate reasons were insufficient — Merits — Whether the trial judge examined all the merits of the case — Appeal dismissed.

Jamadar, J.A.

1 This appeal is in relation to two motions, one filed by the respondent and another filed by the appellant. This was a review by the full court of the decision of a single judge of the Court of Appeal (Yorke-Soo Hon, J.A.) made in Chambers, some four years earlier. On the 14th December, 2009, Yorke-Soo Hon, J.A. dismissed an earlier application made by the appellant, seeking leave to extend the time for the filing of an application to settle the Record of Appeal. Following this nothing further was done by the appellant in relation to her appeal until November, 2013, when the second of these two applications was filed.

2 The first application was filed by the respondent on the 22nd October, 2013, by which the respondent sought to dismiss the appeal for want of prosecution, on the grounds that the appellant failed to comply with the requirements of Order 59 Rule 170) of the Rules of the Supreme Court, 1975 (RSC, 1975). [Order 59 Rule 17(1) of the RSC, 1975 provides: (1) The appellant shall within three months from the date when the Record has been settled or within such extended time as may be granted by the Registrar under paragraph (2) or by the Court or a single judge thereof — (a) file with the Registrar at the Registry, or where the appeal is proceeding in the Sub-Registry of Tobago, with the Registrar in that Sub-Registry for transmission to the Registry — (i) the record; (ii) an affidavit of service of the notice of appeal in Form 6 in Appendix B; and (b) leave three copies of the record for the use of the Judges of the Court.] The respondent also sought the costs of this application. The second application was filed by the appellant on the 21st 1 November, 2013, by which the appellant sought the following: [Page 1 of the appellant's application dated 21m November, 2013]

The Order of the Honourable Madame Justice of Appeal Yorke-Soo Hon dated the 14th day of December, 2009 be vacated. 2. The Application made on the 22nd day of October, 2009 for leave to extend the time for the filing of an application to settle the Records of Appeal herein be re-instated and granted. 3. The time for the making of the application be enlarged to the date of hearing of the same. 4. Further payments of the Taxed Costs herein pursuant to the Allocutur dated the 15th day of March, 2011 be suspended pending the outcome of the Appeal. 5. Such further or other Order as the Court deems necessary. 6. The Costs of these applications be costs in the cause.

1 On the 16th December, 2013 these two applications were heard and determined by this court.

DISPOSITION

3 On the application dated the 22” October, 2013 (the first application), the court granted the application and ordered that the appeal be dismissed for want of prosecution. On the application filed on the 21st November, 2013 (the second application), the court dismissed the application. In both applications the court ordered that the appellant pay to the respondent's costs agreed to at fifty per cent of the assessed costs.

FACTUAL BACKGROUND

4 On the 26th March, 2004, the respondent brought an action against her sister, the appellant, for a claim that the Court decree probate of the will of their mother Ena Frederick. The will was made on the 20th December, 2001 and the testatrix died on the 11th March, 2003. [The appellant entered a caveat in the estate of Ena Frederick (deceased) in which the respondent sought to propound in non-contentious form the said will made on the 20th December, 2001] On the 19th November, 2008, Justice Ibrahim delivered his judgment in the matter in favour of the respondent and ordered that probate be granted in solemn form of the will dated 20th December, 2001, which has been propounded by the respondent. The respondent was also granted costs to be taxed fit for advocate attorney, in default of agreement. The appellant being dissatisfied with this decision filed a Notice of Appeal on the 8th December, 2008. The Record of Appeal was not settled within the three-month period allowed under Order 59, Rule 17(1) RSC, 1975. An application was made some nine months later on the 22nd October, 2009 by the appellant, seeking leave to extend the time for the filing of an application to settle the Record of Appeal. This application was heard in Chambers by Yorke-Soo Hon, J.A. and dismissed on the 14th December, 2009. The appellant did nothing further in this matter for four years; in particular she never sought to review or appeal the decision of the 14th December, 2009. Four years later the parties are before the full court on the two above stated applications. The appellant's application followed that of the respondent (to have the appeal dismissed). It is safe to say, on a balance of probabilities, that but for the respondent's application the appellant would not have challenged the order made on the le December, 2009.

APPELLANT'S REASONS FOR DELAY/ANALYSIS

5 The appellant advanced two (2) reasons for the delay in seeking to review the decision of the chamber court judge, namely: (i) the appellant was ill; and (ii) the appellant believed that she could not be successful with the application before the Full Court, because of the perceived climate of the Court of Appeal, in terms of its approach to these kinds of matters. In addition, the appellant contended that neither the chamber court judge nor the trial judge properly considered the merits of the case.

ALLEGED ILLNESS

6 The first reason advanced by the appellant for not pursuing her matter for four years after her application to extend time was dismissed, was that she was ill. The appellant deposed in her affidavit the following explanation to support her case: [Paragraphs 7,8 and 9 of the appellant's affidavit]

• “7. That by the dismissal of the said Application, I was informed by my said Attorney-at-Law and verily believed that I was thereafter precluded from being enabled to comply with Order 59 Rule 17(1) of the Rules of the Supreme Court and thereby could not settle the record. My said Notice of Appeal was thereafter left in limbo.

• 8. That as a result of the aforesaid, I lost hope and faith in the Appeal process. I felt deprived of my right to be heard, and became very physically and mentally depressed. I became ill for some time as a result.

• 9. That in spite of my said Attorney-at-Law, Miss Alice Frederica Daniel's willingness to make Application to the Full Court on my behalf and free of charge, I instructed her as to my condition and state of mind, and informed her then that I could not go on. MY SAID ATTORNEY-AT-LAW COULD NOT HAVE ASSURED ME OF ANY CHANCE OF SUCCESS AND I FELT IT WAS POINTLESS. ACCORDINGLY, MY APPEAL LAID DORMANT BEFORE THE COURT.”

[Emphasis Added.]

7 Despite these assertions of illness, no medical evidence was produced to the Court to support the appellant's contentions. The respondent's strenuous objection to this ground was because:“the appellant neither produced nor annexed to her affidavit any medical document to support that she was ill for some time. I do not know the nature of the illness and what effect it had on her. She has given no particulars”. [See respondent's affidavit in opposition to the appellant's application, paragraph 18]

8 In response, attorney-at-Law for the appellant explained from the bar table, that the appellant “was suffering from depression I think no doubt brought on by the fact that she had been summarily dismissed from the court below, and was not of a mind to proceed.” [See page 3 of the Transcript] She further explained that the illness was “clinical depression”. [See page 10 of the Transcript] No evidence was produced to support this serious assertion of a debilitating medical condition, that allegedly prevented the appellant for four years from taking any steps to pursue her appeal. In these circumstances, such a bold and bare assertion can be given no probative value or weight. In any event, the appellant was only ill “for some time”, and so this ground is not a complete explanation as to why no steps...