Trusted by the judiciary, government lawyers, prosecutors, and many leading counsel. Click here to request a subscription.
Trusted by the judiciary, government lawyers, prosecutors, and many leading counsel.
Click here to request a subscription.
Bank’s application to remit appeal proceedings to plenary hearing refused where the appeal has already been determined
|
or click here to request site subscription to search and view all judgments |
High Court, following delivery of its principal judgement allowing an appeal against a Circuit Court order for possession of property granted to bank, refuses bank's subsequent application to remit appeal to plenary hearing, on the grounds that: (1) the appeal has already been heard and determined; (2) the bank failed as the moving party in the proceedings to employ such procedural measures as would have permitted it to discharge its onus of proof in establishing that certain monies had become due and cannot now utilise the rules of court to so discharge its proofs; and (3) the bank failed to seek any special leave to adduce further evidence, other than affidavit evidence, for the appeal, such that it would not be appropriate to remit the case back to the Circuit Court to rerun the matter in full a second time.
Appeal against order for possession granted by Circuit Court - appeal allowed - unsuccessful application by plaintiff respondent to remit appeal to plenary hearing refused - ex tempore judgment - present written judgment reflecting reasons for rejecting application to remit appeal to plenary hearing - procedural history - failure to cross examine defendant resulted in plaintiff being unable to discharge onus of proof in application for order for possession under registration of title legislation - conclusions contained in principal judgment - bank's application for plenary hearing of appeal which had already been determined - O.5B, r.8(2) Circuit Court rules - discretion to adjourn - whether court not functus officio until such time as formal order perfected - appeal already heard and determined - no good reason for court to exercise its exceptional jurisdiction to reopen principal judgment - onus on moving party to employ procedural measures - O.5B, r.6(2) - rules do not absolve moving party from having to discharge onus of proof that monies had become due - conflicting evidence was not challenged by cross-examination - proceedings not 'pending' for purposes of court rule - special leave to adduce evidence not sought - no reasons proffered by bank as to why it failed to seek liberty to submit oral evidence to Circuit Court - application to remit refused
Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.
