Robertson et Al v Lotus Ltd

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Kelsick, J.A.
• Judgment Date: 23 April 1982
• Neutral Citation: TT 1982 CA 10
• Docket Number: Civil Appeal No. 96 of 1981
• Date: 23 April 1982

Court of Appeal

Kelsick, J.A.; Hassanali, J.A.; Cross, JJ.A.

Civil Appeal No. 96 of 1981

Robertson et al

and

Lotus Ltd

Appearances:

Maharaj for the Appellant

K. Hudson-Phillips, S.C. and Mrs. V. Alcala for the Respondents

Real Property - Landlord and tenant — Lease — Renewal

Kelsick, J.A.

1 The appellant appealed against the dismissal by Des Iles, J. of its application that a judgment in default of defence made against it in favour of the respondents should be set aside and that it should be given leave to defend the action

2 The judgment was for recovery of possession of that part of premises known and assessed as No. 65 Frederick Street in the city of Port of Spain comprising the front portion thereof with a two storey building thereon and a room in a separate building at the back of the two storey building (hereinafter referred to as the “demised premises”).

3 The appellant was lessee of the demises premises for a term of ten years commencing October 1, 1966.

4 The bases for the claim are that:–

1

) the lease under which the appellant held the premises had expired by effluxion of time; and the notice by the appellant that he was exercising his option under the lease for its renewal was lawfully rejected by the respondents; 2) the appellant was in breach of three of its lessees covenants which entitled the respondents to terminate the lease.

5 In Evans v. Bartlam [1937] 2 All E.R. 646 (H.L.) after agreeing that the corresponding rules in R.S.C. 1883 to O.13 and O.19 of our 1975 give a discretionary power to the judge in chambers try set m aside a default judgment, Atkin, L.J, at p. 650 went on to state:–

“The discretion is in terms unconditional. The court, however, have laid down for themselves rules to guide them in the normal exercise of their discretion. One is that, where the judgment was obtained regularly, there must be an affidavit of merits, meaning that the applicant must produce to the court evidence that he has a prima facie defence. It was suggested in argument that there is another rule, that the applicant must satisfy the court that there is a reasonable explanation why judgment was allowed to go by default, such as mistaken accident, fraud or the like. I do not think that any such rule exists, though obviously the reason, if any, for allowing judgment and there after applying to set it aside is one of the matters to which the court will have regard in exercising its discretion. If there were a rigid rule that no one could have a default judgment set aside who knew at the time and intended that there should be a judgment signed, the two rules would be deprived of most of their efficacy. The principle obviously is that, unless, and until the court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has been obtained only a failure to follow any of the rules of procedure.

But, in any case, in my opinion, the court does not, and I doubt whether it can, lay down rigid rules which deprive it of jurisdiction. Even the first rule as to affidavit of merits could, in no doubt rare but appropriate cases, be departed from. The supposed second rule does not, in my opinion, exist. But, while the judge has such a discretion as I have mentioned, I conceive it to be a mistake to hold, as Green, L.J., [in the Court of Appeal] seems to do that the jurisdiction of the Court of Appeal on appeal from such an order is limited, so that, as Green, L. J., said, at p. 209, the Court of Appeal: ‘have no power to interfere with his exercise of discretion unless we think that he acted upon some wrong principle of law.’

Appellate jurisdiction is always statutory; there is in the statute no restriction upon the jurisdiction of the Court of Appeal, and, while the appellate court, in the exercise of its appellate power, is no doubt entirely justified in saying that normally it will not interfere with the exercise of the judges discretion except on grounds of law, yet, if it sees that, on other grounds, the decision will result in injustice being done, it has both the power and the duty to remedy it.”

6 In Farden v. Richter (1889) 23 Q.B.D. 724, the view was expressed that the affidavit of merits may in exceptional cases be dispensed with or some very sufficient reason.

7 The initial grounds of appeal were:–

• a) The decision of the learned judge is unreason- able and/or against the weight of evidence and/or cannot be supported having regard to the evidence.

• b) The learned judge erred in fact and in law in holding on the evidence that viable issue arose between the parties.

  The appellant was allowed to add the following ground:

• c) That the learned judge erred in law in holding that the plaintiff's failure to endorse their Writ with a statement as to Statutory restrictions in accordance with Order 6 Rule 2(c) was cured by the defendant's subsequent entry of unconditional appearance in the action, and that accordingly the said default judgment was not irregular.

8 With regard to ground (c), the appellant's counsel conceded before the judge and this Court that both Courts were bound by the decision of this court to the contrary in Tiffany Glass Ltd. v. F. Plan Ltd. Civ. App. 85 of 1978; but he stated that he was formally making the point before this Court so as to be in a position to argue the matter before a higher tribunal.

9 This is a convenient stage at which to recount the sequence of events which led to the instant application. Before Des Iles, J. were an affidavit by Gerald Eckel, director of the appellant, and for the respondents an affidavit in reply of Cynthia Therese Piper.

10 The writ of summons was issued on November 5, 1980; unconditional appearance was entered on November 20, 1880. As the statement of claim had not been delivered by December 4, 1980, the appellant on January 27, 1981, made application for the action to be dismissed for the want of prosecution. By consent order dated February 23, 1881, the statement of claim which had been delivered (out of time on February 20, 1881, was allowed to stand. The time for delivery of the defence having expired on March 9, 1981, the plaintiffs entered judgment in default of defence March 13, 1981. The consent order was thereafter filed on March 17, 1881, and an office copy thereof was served on Gerald Eckel, on March 26, 1981, which he delivered to the -appellant's solicitor having the conduct of the action who promptly on March 27, 1981, lodged the application to set aside the default judgment.

11 Eckel was informed by that solicitor that he was not present in court when the consent order was made and that he only became aware of it on March 26, when the time for serving the defence had already expired.

12 From the above narrative the conduct of the respondents may be contrasted with that of the appellant who agreed to extend the time for delivery of statement of claim by over two and a half months; whereas the respondents, without prior notice, took up judgment in default four days after the last day for delivery of the defence.

13 The notice of appeal impliedly accepts that the judgment was regular and any defeats in the pleading were advanced as triable issues of law.

14 A judgment must be given or taken up according to the pleading alone and the judge cannot, at least in an action of this nature, receive evidence by way of affidavit or otherwise.

15 See Young v. Thomas [1892] 2 Ch. 135 per Lindley, L.J. at p. 136:–

“… so far as the rights of the Plaintiff and the relief claimed in the action are concerned, the Judge is to look to the statement of claim, and nothing else;”

16 and per Bowen, L.J. at p. 137:–

“There is no doubt that, in determining the rights of the parties in the action, the statement of claim al one is to be looked to, and the reason of this rule is obvious, namely, that the facts stated therein are taken to be admitted by the defendant; and as has been decided Lord Justice Day in Smith v. Buchan 34 W.I.R. 631, no evidence can be admitted as to those facts.”

17 Adverting to the affidavit in support of an application for judgment under C, 14 r. 2 Hyatali, C.J. in Tiffany Glass Ltd. v. F. Plan. Ltd. had this to say:–

“One of the fundamental purposes of the rule is to allow proof by affidavit evidence on the facts alleged in the statement of claim. Being evidence cannot be employed to correct or supply any defect or omission in the writ ox statement of claim,”

18 The last sentence applies also to a statement of claim filed in a judgment by default proceedings.

19 Order 18 r. 7(1) provides that:–

“Subject to the provisions of this rules…every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved and the statement must be as brief -is the nature of the case admits.”

20 The statement of claim must plead facts and not law. The legal results of pleading facts are questions of law for the court.

21 It is important to bear in mind that on this application this curt is not required to decide any issue of fact or of law but merely to conclude that any such issue is fit for the determination by the trial judge and is a defence to the claim.

22 The...