The Caribbean Court of Justice (CCJ) has ordered a fresh trial of a 2008 case brought by Republic Bank (Guyana) Limited against Guyadin Construction Co. and others after finding that a summary judgment should not have been made by the trial judge.
In an order on July 25th, 2014, the court said in part,”…we agree that this was not a case in which it was appropriate for summary judgment to have been given by the trial judge. We agree that the case should be remitted to the Commercial Court for the trial judge to give a reasoned decision after taking evidence. We wish to make clear that at this trial all the relevant issues should be canvassed and, entirely unfettered by any remarks or orders made by the Full Court, the trial judge should feel at liberty to make such decisions as he or she considers appropriate.”
For the purposes, of this case, the CCJ also assumed the powers of the Guyana Court of Appeal in making one of the rulings.
According to the CCJ decision, between April 2001 and April 2007, Michael Gayadin, Damianti Gayadin, Garvin Gayadin and Guyadin Construction Co.Ltd had credit extended to them by Republic Bank including overdraft facilities and monies secured by promissory notes. In June 2008, the borrowers defaulted and Republic Bank initiated proceedings.
On January 22, 2010, the trial judge in the Commercial Division of the High Court struck out the defence provided by the borrowers as providing no triable issues and awarded summary judgment in the bank’s favour. The court ordered that the debts be paid in full and gave Republic Bank full liberty to proceed in the execution against the properties that were the subject of the bonds and deeds of mortgage.
The borrowers appealed the decision of the trial judge to the Full Court. The Full Court reversed the judge’s decision by saying that there were triable issues and remitted the case for a fresh trial where evidence is led. However, the CCJ said that the Full Court then purported to determine some aspects of the case and to issue directions to the trial judge.
The borrowers were still dissatisfied with this ruling and applied for the leave of the Guyana Court of Appeal to appeal the decision of the Full Court. However, by a majority decision, the Guyana Court of Appeal dismissed the proceedings on the procedural ground that it lacked the jurisdiction to entertain the borrowers’ application. The Court of Appeal’s majority decision was based on its interpretation of Section Six of the Guyana Court of Appeal Act.
In the face of this decision, the borrowers then turned to the CCJ for special leave to appeal the decision of the Court of Appeal.
After considering the case, the CCJ held that a part of Section Six of the Court of Appeal Act did provide ground for the appeal to be considered. The CCJ said that Justice of Appeal Yonette Cummings-Edwards was correct when she dissented from the majority decision of the Guyana Court of Appeal.
The CCJ said that the issue then remained what should be the way forward in the case. It drew up three options.
One possible and extremely narrow option it said was to remit the matter to the Guyana Court of Appeal so that it could do what it would have done if it had determined, as it should have, that it had the jurisdiction to hear the application of the borrowers for leave to appeal the decision of the Full Court.
The CCJ said that a second option was a slight variation on the first and was for the CCJ to in effect determine in the borrowers’ favour the application for leave to appeal to the Court of Appeal and remit the matter to that court so that it could hear the merits of the borrowers’ complaints about the orders of the Full Court.
The third option it said was for the CCJ “to grasp the nettle” and itself pronounce on the application made by the borrowers to the Court of Appeal and the orders of the Full Court as the CCJ had been provided with extensive submissions from each side on the merits of the appeal against those orders.
“We consider that this third option prejudices no one and best meets the ends of justice. The parties had specifically requested that, if we were minded to grant special leave, we should treat the Borrowers’ application for special leave to this Court as the appeal itself. We were also provided with extensive submissions from each side. In all the circumstances and having examined the submissions and authorities presented, we agree that the case should be remitted for trial afresh by a judge of the Commercial court. We have decided on this course of action bearing in mind as well that it was as long ago as July 2008 that the Bank commenced these proceedings in the High Court by specially indorsed writ and, if we could help it, we should avoid further delay in the prosecution of a case which is still only at an interlocutory stage.
“So as not to prejudice the fair trial of the merits of the case it would be inappropriate at this stage for this Court to comment on either the reasoning of the Full Court or the respective submissions made to us on those reasons. Suffice it to say that while we specifically reserve our views on the reasoning and opinions expressed in the Full Court, we agree that this was not a case in which it was appropriate for summary judgment to have been given by the trial judge. We agree that the case should be remitted to the Commercial Court for the trial judge to give a reasoned decision after taking evidence.
We wish to make clear that at this trial all the relevant issues should be canvassed and, entirely unfettered by any remarks or orders made by the Full Court, the trial judge should feel at liberty to make such decisions as he or she considers appropriate”, the CCJ ruled.
It then made the following orders: “The application for special leave to appeal to this Court is granted and the Court treats that application as a hearing of the appeal itself. The Court of Appeal had jurisdiction to consider the Borrowers’ application for leave to appeal the decision of the Full Court. This Court, in accordance with section 11(6) of the Caribbean Court of Justice Act, assumes the powers of the Court of Appeal and determines the application to it for leave to appeal by dismissing the same and remitting the case for trial afresh by the High Court. Each side is to bear their own costs.”
Attorney Timothy Jonas appeared before the court for the borrowers and attorney Kamal Ramkarran for Republic Bank (Guyana).
