REPUBLIC OF TRINIDAD TOBAGO IN THE HIGH COURT OF JUSTICE CV 2011-02975 IN THE MATTER OF THE PARTITION ORDINANCE CHAPTER 81:02 IN THE MATTER OF ALL SINGULAR THAT CERTAIN PIECE OR PARCEL OF L COMPRISING ONE LOT MORE OR LESS FORMING PORTION OF A PARCEL OF L COMPRISING TWO ROODS SITUATE AT BETHEL IN THE PARISH OF ST. PATRICK IN THE ISL OF TOBAGO BOUNDED ON THE NORTH BY NEW STREET, BETHLEHEM ON THE SOUTH EAST BY OTHER LS OF CAROLINE A. LAWRENCE ON THE WEST BY LS OF ELEASAR KING OR HOWSOEVER OTHERWISE THE SAME MAY BE BUTTED OR BOUNDED MORE PARTICULARLY DESCRIBED IN DEED REGISTERED AS NO. DE200901886640 BETWEEN EDWIN MARCELLE (in his own right) First Claimant EDWIN MARCELLE As Lawful Attorney for HARRY MARCELLE, SRA GOPAUL, MARGARET MARCELLE, JOSEPH GRANADO, IMA MARCELLE, JACQUELINE VERNA MARCELLE, CECIL MARCELLE and GLORIA MARCELLE Second Claimant NEVA GUY-MARCELLE Administratrix of the Estate of MARCUS MARCELLE, deceased Third Claimant YVONNE MARCELLE Defendant 1
Before the Honourable Mr. Justice A. des Vignes Appearances: Mr. Christo Gift, S.C. Instructed by Mrs. Jocelyn Gift for the First, Second and Third Claimants Ms. Nera Narine Holding for Ms. Rekha Ramjit for the Defendant REASONS THE PROCEEDINGS 1. On the 5 th August 2011, the Claimants filed a Fixed Date Claim Form claiming against the Defendant the following reliefs: (i) (ii) (iii) (iv) (v) An order for the partition of All and Singular that certain piece or parcel of land comprising one lot more or less forming part of a parcel of land comprising two roods situate at Bethel in the Parish of St. Patrick in the island of Tobago... more particularly described in deed registered as No. DE200901886640; An Order that the sum found to be due to the Defendant be set off against the sum of $143,837.00 taxed costs owing by the Defendant to the Applicant, HARRY MARCELLE, in respect of the said property in H.C.A. No. T-35 of 2003. Alternatively, an order for sale in lieu of partition of the said property and that the proceeds of the said sale be divided in the same proportion as their shares and/or interest but subject to the taxed costs outstanding in H.C.A. No. T35 of 2003. Alternatively, an order that the Claimants be at liberty to purchase the Defendant s share or interest as determined by the Court. Costs 2. This Claim was supported by a joint affidavit in the names of both claimants also filed on the 5 th August 2011. 3. The first hearing of the claim was listed for hearing on the 11 th October 2011 via video conference at 9.00 a.m. 2
4. On the 3 rd October 2011 an appearance to the Fixed Date Claim was entered by the Defendant in person in which the Defendant acknowledged receipt of the Claim Form on the 22 nd September 2011 and indicated that she intended to defend the Claim. Of significance to this matter is that on the Appearance Form the following words appear in parenthesis after Question 6, Do you intend to defend the Claim? : (If so you must file a defence or an affidavit within 28 days of the service of the Claim Form on you) 5. On the 11 th October 2011, the hearing of the Claim was dealt with via video conference between 9.03 a.m. to 9.45 a.m. There was no appearance of the Defendant or any Attorney on her behalf during the hearing of the matter. Further, there was no Notice filed by any Attorney in compliance with Rule 65.4 informing the Court that the Defendant was now being represented by an Attorney and that the Claimants Attorneys had been served with a copy of the Notice. After hearing arguments from the Claimants Attorney, I granted an Order in the terms shown on the Order hereto attached. 6. On the 3 rd November 2011 the Defendant applied to set aside the judgment entered in her absence, granting her relief from sanctions under Rule 26.7 and extending the time for filing her affidavit in response to the Claimants application. This application was filed by Mrs. Deborah Moore-Miggins as Attorney-at-Law for the Defendant and was supported by an affidavit in the name of the Defendant filed on same date (hereinafter referred to as the Defendant s principal affidavit. 7. The hearing of this application was fixed for the 23 rd January 2012. 8. On the 13 th December 2011, a Notice of change of Attorneys was filed on behalf of the Defendant from Mrs. Moore-Miggins to Rekha P. Ramjit & Associates. On the same date, an Amended Notice of Application was filed together with a supplemental affidavit of the Defendant, (hereinafter referred to as the Defendant s supplemental affidavit ) and an affidavit of Mrs. Moore-Miggins. 9. On the 20 th January 2012 an affidavit in opposition in the name of Renee Gift was filed by the Claimants Attorneys. However, at the hearing on the 23 rd January 2012, Counsel for the Claimants informed the Court that he would not rely on this affidavit since the points made in the affidavit were all legal submissions based on the Civil Proceedings Rules. Accordingly, I proceeded to hear arguments from both sides without reference to this affidavit. 3
GROUNDS OF DEFENDANT S APPLICATION 10. By the Amended Notice of Application, the Defendant put forward the following grounds in support of her application: (a) Her affidavit was not due until the 21 st October 2011; (b) Through inadvertence, her affidavit was filed in the wrong proceedings; (c) She filed her appearance on the 3 rd October 2011 and indicated that she intended to defend the Claim; (d) When the Order was made by the Court on the 11 th October 2011 the Claim ought not to have been dealt with pursuant to Part 27.2 (3) since (a) the Defendant had given notice of intention to defend; and (b) no application for summary judgment had been made by the Claimants pursuant to Part 15.4 (1); (e) The Order/Judgment is irregular since (i) on 11 th October 2011 there was no ex parte trial of the claim; (ii) If there was a trial, the same would have been null and void and of no legal effect since there was an express intention to defend the claim; and (iii) summary judgment was not available to the Claimants as there was no application for summary judgment. (f) The Claim was disposed of before the time limited for the Defendant to file an affidavit in response; (g) The Judgment/ Order is oppressive and contrary to the overriding objective; (h) The Defendant has a good reason for failing to attend the hearing; (i) It is likely that had the Defendant attended the hearing, some other judgment or order might have been given or made. 11. At the hearing on the 23 rd January 2012, Attorney for the Defendant, Ms. Narine, made the following significant concessions: (a) (b) (c) The Court was not obliged to adjourn the hearing on the 11 th October 2011 when the Defendant and/or her Attorney failed to appear; The Court had the power to make the Order that it did in the absence of the Defendant; The Defendant was not challenging the making of the Order by the Court. 12. In the light of these concessions, the primary arguments pursued by Ms. Narine were that the Defendant had a good reason for her non-attendance at the hearing on the 11 th October 2011 and 4
if she had attended, she would have informed the Court that she intended to defend the matter and the Court may have given a different decision. 13. In answer thereto, Counsel for the Claimants briefly submitted that the Court had the power to grant the Order which it did and the Defendant had failed to satisfy the requirements of Rule 40.3 (3) of the Civil Proceedings Rules. 14. At the conclusion of the submissions by both sides, I dismissed the Defendant s Amended Notice of application with costs to be paid by the Defendant to the Claimants, assessed in the amount of $2,500.00. My reasons for so doing are set out hereunder. REASONS 15. The claim herein having been instituted by way of Fixed Date Claim Form was listed for hearing on the 11 th October 2011. The Defendant was notified of the date of hearing and that if she failed to attend the hearing, judgment may be entered against her. Further, she was notified of the requirement to file an affidavit setting out all the facts on which she relied to dispute the claim, that she must attend the hearing and if she did not, the Judge may deal with the claim in her absence. Therefore, notwithstanding the notation to Question 6 on the Appearance Form, I considered that the Defendant had been duly notified in the clearest terms of the date of hearing and of the need to file her affidavit in time for the hearing and I was of the opinion that the ground of the Defendant s application to the effect that her affidavit was not due until the 21 st October 2011 was without merit. 16. I was of the opinion that the explanation given for the Defendant s and/or her Attorney s failure to attend the hearing was not a good reason for their absence. In my opinion, placing the documents in the hands of her Attorney and focusing on the preparation of an affidavit in reply could not justify the failure of the Defendant to appear at the hearing, bearing in mind the clear and unequivocal language of the notifications contained in the Claim Form as well as the Notes for the Defendant. Even if the Attorney overlooked the date of hearing due to pressure of work, the Defendant ought to have attended since she had been served since the 22 nd September 2011 and she had entered an appearance in person on the 3 rd October 2011. 17. By the time the Defendant s Attorney filed the Defendant s affidavit on the 20 th October 2011 in the wrong proceedings, the Order on the hearing of the Fixed Date Claim had already been made 5
since the 11 th October 2011. Accordingly, I was of the opinion that the fact of the erroneous filing was irrelevant to the issue of why the Order of 11 th October 2011 should be set aside. 18. The mere filing of an appearance on the 3 rd October 2011 indicating an intention to defend the Claim was insufficient. Having regard to the facts alleged by the Claimants in their affidavit filed on the 5 th August 2011 and, in particular, the judgment of the Court in the previous action, H.C.A. T 35 of 2003, the Order for costs made against the Defendant and the withdrawal of the appeal by the Defendant on the 29 th January 2007, it was of critical importance for the Defendant to file an affidavit in response setting out all the facts on which she intended to rely and to appear at the hearing of the Fixed Date Claim. When the matter was called before me on the 11 th October 2011, there was no Attorney on record for the Defendant, an appearance had been entered by the Defendant in person, there was no affidavit in opposition filed on behalf of the Defendant and there was no correspondence from the Defendant explaining her absence. 19. The Defendant, having been served on the 22 nd September 2011, had twenty (20) days notice of the hearing. Under Part 27.2(3), the Court was empowered to deal with the matter in the absence of the Defendant or any affidavit in response. I considered that based on the uncontroverted facts contained in the Claimants affidavit, the Claimants were entitled to the Order sought and that the Claim could be dealt with summarily. In my opinion, it was not necessary for the Claimants to apply for summary judgment since I was satisfied that the Defendant had been served, had been given adequate notice to file an affidavit in opposition and to appear at the hearing. The claim made in the Fixed Date Claim Form was supported by the joint affidavit of the Claimants and in the absence of any affidavit from the Defendant and any explanation for her absence, I proceeded to consider the merits of the Claim. I considered that the Claimants were not entitled to an Order for partition of one lot of land and granted an Order for sale in lieu of partition. Having regard to the order for costs made against the Defendant in the previous proceedings, I also ordered that the proceeds of sale be distributed in the proportions sought, subject to the taxed costs ordered against the Defendant. Accordingly, I rejected the Defendant s application that the Order made on the 11 th October 2011 was irregular, null and void and of no legal effect. 20. In keeping with the overriding objective of the Rules, I considered that in the absence of any affidavit from the Defendant and any appearance of the Defendant at the hearing, the claim should be dealt with expeditiously since, in the face of the undisputed facts alleged by the Claimants, the Defendant appeared to be abusing the process of the Court by her continued 6
occupation of the dwelling house on the property to the exclusion of the Claimants and the persons whom they represent. 21. Part 40.3 (3) requires the Defendant to adduce evidence to show: (a) (b) a good reason for failing to attend the hearing; and that it is likely that had the applicant attended some other judgment or order might have been made. In my opinion, both (a) and (b) of this Rule must be satisfied. 22. Having considered the Defendant s principal and supplemental affidavits and the affidavit of Mrs. Moore-Miggins, I was of the opinion that the Defendant s reason for not attending the hearing was not a good reason. Further, I was not persuaded that if the Defendant had appeared some other judgment or order might have been made since the Defendant had not filed an affidavit prior to the 11 th October 2011. Further, in the Defendant s principal and supplemental affidavits, she did not depose to any facts to answer the very serious allegations made against her by the Claimants. 23. For these reasons, I dismissed the Defendant s Amended Notice of Application with costs on the 23 rd January 2012. Dated the 22 nd day of February, 2012.... André des Vignes Judge 7