IN THE COURT OF APPEAL JOAN FREDERICK AND. MAUREEN BROOKS (Executrix of the Last Will of Ena Frederick, Deceased)

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL Civil Appeal No. 256 of 2008 BETWEEN JOAN FREDERICK AND Appellant MAUREEN BROOKS (Executrix of the Last Will of Ena Frederick, Deceased) Respondent PANEL: P. Jamadar, J.A. N. Bereaux, J.A. G. Smith, J.A. APPEARANCES: Ms. A. Daniel for the Appellant. Mr. J. Toney for the Respondent. DATE OF DELIVERY: 10 th March, Page 1 of 13

2 Delivered by P. Jamadar, J.A. REASONS Introduction 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 14 th 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 22 nd 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 17(1) of the Rules of the Supreme Court, 1975 (RSC, 1975). 1 The respondent also sought the costs of this application. The second application was filed by the appellant on the 21 st November, 2013, by which the appellant sought the following: 2 1. The Order of the Honourable Madame Justice of Appeal Yorke-Soo Hon dated the 14 th day of December, 2009 be vacated. 2. The Application made on the 22 nd 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. 1 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. 2 Page 1 of the Appellant s application dated 21 st November, Page 2 of 13

3 4. Further payments of the Taxed Costs herein pursuant to the Allocutur dated the 15 th 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. On the 16 th December, 2013 these two applications were heard and determined by this court. Disposition 3. On the application dated the 22 nd 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 26 th 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 20 th December, 2001 and the testatrix died on the 11 th March, On the 19 th 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 20 th 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 8 th December, The Record of Appeal was not settled within the three-month period allowed under Order 59 Rule 17(1) RSC, An application was made some nine months later on the 22 nd 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 14 th December, The appellant did nothing further in this matter for four years; in particular she never sought to review or appeal the decision of the 14 th December, Four 3 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 20 th December, Page 3 of 13

4 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 14 th December, 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: 4 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. 4 Paragraphs 7, 8 and 9 of the Appellant s affidavit. Page 4 of 13

5 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 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. 6 She further explained that the illness was clinical depression. 7 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 were taken for four years. 5 See respondent s affidavit in opposition to the appellant s application, paragraph See page 3 of the Transcript. 7 See page 10 of the Transcript. Page 5 of 13

6 Climate in the Court of Appeal 9. The second reason given by the appellant for the inordinate delay to utilize Order 59 Rule 20(2) of the RSC, and challenge the order of the single judge, is that she believed that she would 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. The appellant s attorney submitted that: 9 She believed that the legal atmosphere of that time, which was austere in the enforcement of sanctions, and in the timeliness of proceedings, and was adamant in policing those guilty of the Cancerous Laissez-faire approach to Civil Litigation. The Appellant feared that the rightness of her cause and the merit of her appeal may have been overlooked once more, given the strong view of the Court in cracking down upon tardiness and delays in proceedings. No doubt this perception was based on the advice of the appellant s attorney-at-law. In the appellant s words: 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. 10. Counsel for the appellant went on to submit, that the Privy Council decision of The Attorney General v Keron Matthews 10 shed new light to the powers of the Court with regard to its inherent jurisdiction and the circumstances in which it is to exercise its discretion in relation to delay. 11. First, a perceived climate in the court of appeal is not a good reason for delay. Second, and in any event, the decision of the Court of Appeal in the case of the National Lotteries Control Board v Michael Deosaran, 11 was available since the 2 nd June, This judgment 8 Order 59 Rule 20(2) of the RSC, 1975 provides: Every order made by a single Judge of the Court in pursuance of this rule may be discharged or varied by the Court. 9 Paragraph 4 of the appellant s submissions. 10 PCA No 68 of Civ. App. No. 132 of Page 6 of 13

7 provided clear guidelines to be followed when an application is brought under Order 3 Rule 5 12 seeking leave to extend time. The guidelines are worth repeating in this case. Paragraph 53 of the judgment states: 53. I am of the opinion that in Trinidad and Tobago, even though Order 3, rule 5 does confer a wide discretion in applications for extensions of time which necessitates a consideration of all the circumstances of a case with the overriding objective that justice be done, in doing so the following factors must be particularly considered where there has already been a determination of a trial on the merits and judgment has been delivered. (i) (ii) (iii) (iv) The length of the delay and whether it is inordinate. The longer the delay the less likely a court would find that there is reason to extend time. The reasons for the delay and whether there is an acceptable explanation for it. The cogency of the explanation should be greater the longer the delay. Whether the application for the extension of time was made promptly. This assessment should at least be made in relation to the default and the reasons for it, but could also include all other relevant circumstances. The degree of prejudice to the respondent caused by the delay and that may result if an extension is granted. The greater the 12 Order 3 Rule 5 Rules of the Supreme Court, 1975 provides: (1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a period is required or authorised by these Rules, or by any judgment, order or direction, to do any act in any proceedings. (2) The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period. (3) The period within which a person is required by these Rules or by any order or direction, to serve, file or amend any pleading or other document may be extended by consent (given in writing) without an order of the Court being made for that purpose. (4) In this rule reference to the Court shall be construed as including reference to the court of Appeal or a single judge thereof. Page 7 of 13

8 prejudice the less likely a court would find that there is reason to extend time. (v) The merits of the appeal, which are to be evaluated in a comparative way relative to the length of delay, the reasons for the delay and the degree of prejudice to the respondent. The stronger the merits of an appeal the more likely a court would find that there is reason to extend time. (vi) Special cases or exceptional circumstances. (vii) The bona fides of the application and whether the party seeking the extension has generally complied with the rules and any orders and directions. A lack of bona fides is a matter of serious concern. (viii) The interests of the administration of justice. Doing justice is not limited to justice between parties to particular litigation, but includes larger considerations of the administration of justice. One important aspect of this is the recognition that time requirements laid down in the rules of procedure or by orders of the court are to be observed if there is to be meaningful change and sustainability in the efficiency and effectiveness of the administration of justice and in public trust and confidence in it. Litigants are entitled to have their matters determined according to the rules and with reasonable expedition. Attorneys are obliged to know the relevant rules and conduct their matters in accordance with them. Doing justice includes doing it according to the established rules, and litigants who are in breach of the rules are not entitled to complain that justice has not been done. 12. The decision of the Privy Council in Keron Matthews is not relevant to the issue raised by the appellant in this case. Keron Matthews dealt with the CPR, 1998 and specifically the issue of implied sanctions, neither of which fall for consideration in this appeal. As explained Page 8 of 13

9 above, Deosaran s case is apposite. Further, in Deosaran s case eight factors were set out that ought to be considered in an application to extend time to file a record of appeal, including the merits of appeal. While it is true that in Deosaran s case the court stated that factors (i), (ii) and (iii) must... be specially weighed, 13 it is difficult to read into this statement of policy a rigid or inflexible approach to delay. This second ground is also devoid of any merit. The rules of court are intended to be obeyed, 14 and neither litigants nor attorneys can disregard them because they consider the climate unfavourable. 13. In any event, Yorke-Soo Hon, J.A. generally followed and applied the guidelines outlined in Deosaran s case. 15 However, the appellant further submitted that Yorke-Soo Hon, J.A. did not give the full weight she ought to have when considering the merits of the case under paragraph 53(v) of Deosaran. We will address the substance of this submission later on in these reasons. 14. For the time being the question is whether: even if the chamber court judge did not fully consider the merits of the case, is this enough to set aside her order after four years when the appellant did nothing to advance the appeal? It is true that Yorke-Soo Hon, J.A. gave greater importance to the length of delay in the exercise of her discretion. This was not undue, as delay must be specially weighed in Trinidad and Tobago when it is inordinate, as in this case. 16 This case has been in the judicial system since the 26 th March, 2004, it is almost a decade old. For four years following the decision of the chamber court judge this case was asleep, only to be aroused from its slumber by the respondent s application to dismiss the appeal for want of prosecution. The respondent in her affidavit of opposition deposed to the chronology of the 13 See paragraph 54 of the judgment of Jamadar, J.A.. 14 See Ratnam v Cumarasamy [1965) 1 WLR 8, per Lord Guest, at page 935 (PC). 15 See pages 4 6 of the judgment of A. Yorke-Soo Hon J.A.. 16 See Jamadar, J.A. at paragraph 54 of the judgment of Deosaran s case: In my opinion factors (i), (ii) and (iii) must at this time be specially weighed. Thus if the delay is lengthy and/or there is no acceptable explanation for it and/or the application for an extension of time was not made promptly, a court may refuse an application for an extension of time. The more of these that are present, the less likely a court would find that there is reason to extend time. It goes without saying that there must be material upon which the court is to exercise its discretion. Page 9 of 13

10 proceedings from the time she decided to apply for a Grant of Probate. That chronology is as follows: 17 November 2003 December 2003 March 2004 June 2008 November 2008 December 2008 October 2009 December 2009 March 2011 October 2013 October 2013 November 2013 My Application for Grant of Probate of the Will of Ena Frederick, deceased dated December 20, Caveat filed by the Appellant. I filed my action in Court to have the Court decree probate of Will in solemn form of law. Trial. Judgment in my favour from Mr. Justice Ibrahim. Appeal from Respondent. Application of Appellant for leave to extend time for filing of application to settle the Record of Appeal pursuant to O.3 R.5 of the RSC Application dismissed by Madame Justice Alice Yorke-Soo Hon. Taxed Costs of $101, to be paid by Respondent to Appellant. $10, of Taxed Costs paid. My application to dismiss Appeal for want of prosecution. Respondent s Application for leave to extend time for Application to settle the Records of Appeal to be reinstated and granted. 17 See paragraph 27, page 7 of the respondent s affidavit filed on the 12 th December, Page 10 of 13

11 15. What stands out, is that the appellant woke up and acted only after the respondent took a step in this appeal. In our opinion, to have the respondent defend this appeal after four years of unreasonable delay is unfair, unjust and unconscionable in the circumstances of this case. There must be an end to litigation and it is the responsibility of an appellant to prosecute his/her appeal with due diligence. Failure to do so can be fatal. Merits 16. On the issue of the merits of the appeal, the appellant also argued that the trial judge did not look at the merits and issues of the case fully and in the way that it should have been done. In particular, that he did not address at all the facts that showed that suspicions were raised in relation to the preparation and execution of the will. 17. We disagree. In our opinion the trial judge did deal with all the issues raised in the matter and especially considered in detail the evidence on preparation and execution of the will In fact, the trial judge considered each of the six issues raised by the appellant. The first issue dealt with the preparation of the will of the testatrix. The trial judge succinctly stated and assessed the evidence of the witnesses; the respondent, Mr. Cyril Forde, who prepared the Will, Mr. Richard Campbell, one of the witnesses to the will and Ms. Glenda Frederick, the respondent s daughter. 19 The execution of the will was considered next by the judge. 20 The third issue considered is whether the testatrix herself gave instructions for the preparation of the will and the dispositions contained therein and whether she was aware of same and therefore, whether in the circumstances the propounding of the said will were flawed. 21 The fourth issue considered by the trial judge was whether the testatrix was suffering from senile dementia and hemi paresis stroke and was permanently, psychologically and physically unable to conduct business and was taken unfair advantage of by the respondent, who knew full well that the 18 See paragraphs 7 and 8 of the judgment of Justice M. Ibrahim. 19 See paragraphs of the judgment of Justice Ibrahim. 20 See paragraph 21 of the judgment of Justice Ibrahim. 21 See paragraph 22 of the judgment of Justice Ibrahim. Page 11 of 13

12 deceased had no clear understanding of what was happening in relation to the transaction. 22 fifth issue the judge dealt with was the allegation that the respondent did not provide the testatrix The with independent legal advice on the contents contained in the will. 23 The final issue considered by the trial judge, was the allegation that the respondent unduly influenced the testatrix to affix or have affixed her thumb print to the will It is difficult, in the face of the trial judge s careful and detailed treatment and analysis of the issues and the relevant evidence, to conclude that the decision of Yorke-Soo Hon, J.A. was somehow flawed because of her failure to treat with the merits of the appeal. In our opinion the appellant does not have such a meritorious case as would permit us to override the unconscionable delay which occurred. Conclusion 20. Without any doubt this is an appeal which has been delayed in the system for an extremely long time. In our opinion, this delay rests entirely with the choices the appellant made along the way. Balancing the interests of justice on both sides, we are of the opinion that, but for the respondent s application to have this appeal dismissed, the appellant would not have done and was not intending to do anything to prosecute this appeal. To wait four years before challenging a decision of an appellate chamber court judge, in the absence of good reasons, undermines the administration of justice and also runs contrary to the policy that litigation must come to an end. There must be some measure of certainty and finality in court proceedings. Appellants who sit on their appeals, will sometimes have to pay the ultimate price, as in this case. 21. In the circumstances an affirmative order on the respondent s application dated the 22 nd October, 2013 was made; the appeal was dismissed for want of prosecution. The application filed on the 21st November, 2013 by the appellant, was dismissed. In both applications the court 22 See paragraph 23 of the judgment of Justice Ibrahim. 23 See paragraph 24 of the judgment of Justice Ibrahim. 24 See paragraph 25 of the judgment of Justice Ibrahim. Page 12 of 13

13 ordered that the appellant pay to the respondent s costs agreed to at fifty per cent of the assessed costs. P. Jamadar Justice of Appeal I have read the reasons of Jamadar, J.A. and I agree. N. Bereaux Justice of Appeal I have also read the reasons of Jamadar, J.A. and I also agree. G. Smith Justice of Appeal Page 13 of 13