Othniel R Sylvester Appellant v Satrohan Singh Respondent [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Judge: BYRON, J.A.,C.M. DENNIS BYRON,Justice of Appeal,ALBERT REDHEAD,Justice of Appeal [Ag.],ODEL ADAMS
• Judgment Date: 18 September 1995
• Judgment citation (vLex): [1995] ECSC J0918-1
• Court: Court of Appeal (Saint Vincent)
• Docket Number: CIVIL APPEAL NO.10 OF 1992
• Date: 18 September 1995

[1995] ECSC J0918-1

IN THE COURT OF APPEAL

Before:

The Hon. Mr. C.M. Dennis Byron Justice of Appeal

The Hon. Mr. Albert Redhead Justice of Appeal [Ag.]

The Hon. Mr. Odel Adams Justice of Appeal [Ag.]

CIVIL APPEAL NO.10 OF 1992

Between:

Othniel R Sylvester

Appellant

and

Satrohan Singh

Respondent

Appearances:

Mr. Norman Hill, Q.C. and Dr. Ralph Gonsalves for the Appellant

Mr. Karl Hudson-Phillips, Q.C. and Mr. Hans Matadial instructed by the Solicitor-General of St. Vincent for the Respondent

BYRON, J.A.

1 By a generally indorsed writ filed on the 16th day of April, 1991 the appellant, one of Her Majesty's Counsel, claimed damages for slander against the respondent, a member of the East Caribbean Supreme Court, and also an injunction to restrain the respondent from repeating the defamation.

2 By separate summonses filed on the 14th day of April, 1992 the appellant applied for an order extending the validity of the said writ pursuant to Order 6 rule 7 of the Rules of the Supreme Court 1970 and for an order for substituted service pursuant to Order 50 rule 9 of the aforesaid Rules. These summonses were supported by an affidavit of Ms. Nicole Sylvester, Barrister at Law and Solicitor, sworn and filed on the 14th day of April, 1992. A summary of the persons to resolve the matter the Appellant had not attempted to serve the writ until the period 9th to 14th April, 1992 when the deponent went to St.kitts-Nevis, where at that time the Respondent was the resident puisne judge, and all her efforts to effect service of the writ were frustrated. She returned to St. Vincent where this application was made.

3 On 15th April, 1992 Joseph J. granted the following orders:

• 1. That the validity of the Writ of Summons in the above-captioned Suit be extended to July 31^st, 1992;

• 2. That the application for substituted service of the said Writ of Summons as extended as aforesaid be granted;

• 3. That substituted service as aforesaid be done by registered post to the Defendant at his address at the Registry, Supreme Court, Bassetere, St.Kitts-Nevis;

• 4. That all other pleadings in this matter follow the Rules of the Supreme Court.

4 Service of the writ having been effected on him, the Respondent, by summons filed on 12th May, 1992 applied for leave to enter a conditional appearance, on the ground that it was his intention to challenge the above mentioned orders because:

• (i) No time was specified for entry of appearance in the order for substituted service;

• (ii) The order purported to permit service of the writ at a Court House which was contrary to Order 50 Rule 9 of the Rules of the Supreme Court;

• (iii) There was no endorsement on the writ sent by registered mail to the defendant that the same had been extended.

5 Leave was granted and on 20th May, 1992 the Respondent applied by way of summons to have the orders extending the validity of the writ of summons and granting leave for substituted service thereof set aside. On the 10th day of July, 1992 Georges J. set aside the writ and the orders extending its validity and granting substituted service of it and ordered that service of the said writ be discharged. On 21st October, 1992 the Appellant lodged a notice of appeal against that order, without first having obtained the leave of the judge or of the Court of Appeal.

6 On 1st December 1992 the Respondent gave notice that he intended to rely on a preliminary objection to the hearing of the appeal on the ground that the same was filed without leave to appeal having been obtained.

7 There is an automatic right of appeal against a final judgment or order. However, the Privy Council case ofOwens Bank v Cauche [1988] 36 W.I.R. confirmed that leave is required for an appeal to lie from an interlocutory judgment or order by virtue of the Eastern Caribbean Supreme Court [Saint Vincent and the Grenadines ] Act, 1970 section 32[2][g] which provides:

Section 32 provides:

[2] " No appeal shall lie under this section—

[g] without the leave of the judge or the of the Court of Appeal from any interlocutory judgment or any interlocutory order given or made by a judge except….. "

8 [None of the exceptions are relevant to this case].

9 This provision means that any notice of appeal filed against any interlocutory order or judgment, without leave having been first obtained is of no effect and is completely valueless and void. SeePatrick v Walker [1966] 10 W.I.R. 110 and Henderson v Archila [1983] 37 W.I.R. 90.

10 The preliminary objection, therefore, raises only one question, is the order appealed against interlocutory?

11 In arguing this point counsel renewed a debate that had been joined in the English Court of Appeal well over a century ago, should the court answer that question by employing the application test or the order test?

12 Under the application test, an order would be final if it was Made on an application which would have determined the matter in litigation for whichever side the decision was given. It is conceded that if the application test was applied the order made by Georges J. would be interlocutory, because if he had not set aside the writ and discharged its service, the proceedings would have continued.

13 Under the order test an order is final if it finally determined the issue in litigation, or disposed of the rights of the parties. It seems to me that although the order, having adjudged the writ and its service to be invalid, effectively determined the proceedings, it did not determine any issue in litigation between the parties nor dispose of their rights, and therefore was not a final judgment or order.

14 In England by virtue of the Supreme Court of Judicature (Consolidation) Act 1925, section 68(2), what orders or judgments are final, and what are interlocutory, are to be determined by the Court of Appeal, which, in 1984 declared itself to be firmly committed to the application test. In the leading case ofWhite v Brunton [1984] 2 All ER 606 Sir John Donaldson MA considered the history of the debate and said at p.607:

"InShubrook v Tufnell (1882) 9 QBD 621 [1881–8] All ER Rep 180 Jessel MR and Lindley LJ held, in effect, that an order is final if it finally determines the matter in litigation. Thus the issue of final or interlocutory depended on the nature and effect of the order made. I refer to this as the 'order approach'.

InSalaman v Warner [1891] 1 QB 734, in which Shubrook's case does not appear to have been cited, a Court of Appeal consisting of Lord Esher MR, Fry and Lopes LJJ held that a final order is one made on such an application or proceeding that, for whichever side the decision is given, it will, if it stands, finally determine the matter in litigation. Thus the issue of final or interlocutory depended on the nature of the application or proceedings giving rise to the order and not to the order itself. I refer to this as the 'application approach'.

InBozson v Altrincham UDC [1903] 1 KB 547 a Court of Appeal consisting of the Earl of Halsbury LC, Lord Alverstone CJ and Jeune P reverted to the order approach ………The next occasion on which the problem was looked at on broad lines of principle was in Salter Rex & Co v Ghosh [1971] 2 All ER 865 [1971] 2 QB 597, where Lord Denning MR with the agreement of Edmund Davies and Stamp LJJ, considered and contrasted the judgment of Lord Alverstone CJ in Bozson's case with that of Lord Esher MR in Salaman v Warner. Lord Denning MR said [1971] 2 All ER 865 at 866, [1971] 2 QB 597 at 601):

"Lord Alverstone CJ was right in logic but Lord Esher MR was right in experience. Lord Esher MR test has ways been applied in practice……..I would apply Lord Esher MR's test to an order refusing a new trial. I look to the application for a new trial and to the order made. If the application for a new trial were granted, it would clearly be interlocutory. So equally when it is refused, it is interlocutory…….. "

The court is now clearly committed to the application approach as a general rule andBozson's case can no longer be regarded as any authority for applying the order approach."

15 Shortly after this case, the matter received statutory attention in England, and rules made under s.60 of the Supreme Court Act 1981came into force with effect from October 1, 1988. These new rules specifically incorporated the application test. The matters under consideration in thisappeal are covered by the new Order 59 rule 1 A[6][c] which provides that "an order for or relating to the validity, service [including service out of the jurisdiction] or renewal of a writ or other originating...