Evelyn St.Clair Harrigan Applicant/Appellant v George Emmanuel Lloyd Respondent/Defendant [ECSC]

• Jurisdiction: Anguilla
• Judge: MOE, J.A.,Chief Justice
• Judgment Date: 25 April 1988
• Judgment citation (vLex): [1988] ECSC J0425-1
• Docket Number: CIVIL APPEAL 7/1986
• Date: 25 April 1988
• Court: Court of Appeal (Anguilla)

[1988] ECSC J0425-1

IN THE COURT OF APPEAL

Before:

The Honourable Sir Lascelles Robotham—Chief Justice

The Honourable Mr. Justice Bishop

The Honourable Mr. Justice Moe

CIVIL APPEAL 7/1986

Between:

Evelyn St.Clair Harrigan

Applicant/Appellant

and

George Emmanuel Lloyd

Respondent/Defendant

Appearances:

B. Lake, Q.C., for Appellant

J. Benjamin for Respondent

MOE, J.A.

1 This is an appeal from an Order of a Judge of the High Court withdrawing an Order which the said Judge had made three hours earlier on the 24th November, 1986. On that day the Judge heard an application by the appellant for an Order that the respondent comply in certain respects with an Order of the High Court made on the 17th July, 1981.

2 Material portions of the 17th July, 1981 Order is as follows:-

"…..it is ORDERED:

• 1. That the Respondent do administer the Estate of Joseph Benjamin Harrigan without further delay.

• 2. That the Parcel of land with the house thereon, originally recorded as Parcel 23 of Sheet No. 89118B at Shoal Bay be transferred to the Applicant.

• 3. That the Applicant's 1/3 share of Balsam Bottom be transferred to him.

• 4. That the Respondent prepare a true account of the estate by the 15th day of November, 1981.

• 5. That further Orders in this matter be stayed pending the presentation of the above account."

3 At the hearing of the application on 24th November, 1986 it was put before the learned Judge that the Parcel of land originally recorded as Parcel 23 later comprised lots created as Lots 27, 28, 23, 30 and 31.Further that there was a transfer to the appellant of Lots 28, 29, 30 and 31. The learned Judge Ordered at 12 noon:-

"That the remainder of original Parcel No. 23 which remainder is now Parcel 27 be transferred by the Respondent/Defendant on or before 5th December, 1986 as ordered in the Order dated 17th July, 1981.

2. That the respondent comply with paragraph 4 of said order on or before the 31st January 1987. Costs to the applicant to be taxed or agreed upon."

4 At 2.00 p.m. the Judge recalled the Counsel involved in the application and informed them of a matter coming to her attention after the Order was made. The Judge referred to a Judgment of the Court of Appeal in Civil Appeal No. 5 of 1984, dated 29th April, 1986 in which the Court of Appeal had ordered that the land comprised in Lot 27 be registered in the name of Connell Lorenzo Harrigan. After hearing Counsel, the learned Judge at 3.00 p.m. ruled that there was alternative but to withdraw the Order earlier made.

5 The appellant does not dispute the power of a Judge to revoke or withdraw an earlier order made by the said Judge. Counsel submitted that there may be a proper exercise of the discretion to withdraw an earlier order either on the revelation of new facts or matters to the Judge by the parties to the matter before the Judge or on the Judge's own consideration the justice of the case warranted a rethinking. The burden of the appellant's complaint is that in the instant case the learned Judge exercised the discretion carpiciously. In support of this, Counsel contended that the matter i.e., the Court of Appeal Judgment of 29th April, 1986 on the basis of which the learned Judge appeared to have acted in order to exercise the discretion to withdraw the earlier Order, was referred to already during proceedings when the original order was made at noon, and as I understand the submission there would have been no new matter or other matter which warranted a rethinking.

6 I am unable to accede to this submission. The record indicates reference to the Judgment of the Court of Appeal at the hearing around...