Lockhart v Sherman

JurisdictionBahamas
CourtSupreme Court
JudgeLongley, J.
Judgment Date18 Dec 1997
Docket NumberNo. 119 of 1995

Supreme Court

Longley, J.

No. 119 of 1995

Lockhart
and
Sherman
Appearances:

Cedric L. Parker, ESQ; counsel or the appellant.

Kirkwood Seymour, ESQ; counsel for the respondent.

Practice and procedure - Writ of summons — Appellant contended that the writ of summons issued by the magistrate was void because the date inserted in the summons was a date that was more than thirty days after the issue of the writ and violated Rule 2(1) of the Magistrate's Rules of Court — Judgment that there was nothing wrong in law with the process — Magistrate had the power to extend the number of days and he may do so either before or after the issue of the writ and he may do so after the expiration of the period of thirty days — Appeal dismissed.

Longley, J.
1

The very simple point taken by the appellant is that the writ of summons issued by the magistrate in these proceedings is void. He says it is void because the date inserted in the summons for his appearance before the magistrate is a date that was more than thirty days after the issue of the writ which was therefore issued in violation of Rule 2(1) of the magistrates Rules of Court.

2

The relevant rules provide as follows:

  • “1. All civil proceedings shall be commenced by application to a magistrate for the issue of a summons.”

  • “2. (1) The summons shall contain the names and addresses of the parties and the day on which the defendant is to appear and shall be endorsed with a statement of the nature and where possible with the particulars of the claim or of the relief claimed.

“If necessary, particulars may be attached to the summons. In the case of a summons issued in New Providence where the defendant resides therein, the day of appearance shall not be less than five days or more than thirty days after the issue of summons, and where the defendant resides in a district other than that in which the summons is issued, the day of appearance shall not be less than 14 days or more than 42 days after the issue of the summons. In cases where a summons is issued at an out island by the magistrate for service within his district, the day of appearance shall not be less than five days or more than to days after the issue of summons. Provided the magistrate may, on application, extend the number of days.”

3

To my mind, the point taken by the appellant cannot succeed for two reasons: First, the magistrate may, at the time of the application for the issue of summons, extend the time and permit the insertion of a date for the appearance of the defendant, which date would be more than thirty days after the date of the issue of the writ and there would be nothing wrong in law with that process....

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