The Caribbean Court of Justice (CCJ) has ruled in favour of Malweg Darnley in a case against Joy Reid and Anthony Reid and ordered that a decision of the Guyana Court of Appeal that it didn’t have jurisdiction to hear the matter be set aside and that the local court set the date to hear Darnley’s appeal to it as soon as possible.
Delivered on December 17th, 2014 the CCJ ruling again raised concern about the lengthy delay in arriving at decisions in the local court and the absence of written reasons for judgments.
The CCJ judgment noted that the Guyana Court of Appeal heard the motion on 28th November 2012 but did not deliver judgment until 7th May 2014 which stated “IT IS HEREBY ORDERED that the Notice of Appeal does not lie to the Court of Appeal.”
Said the CCJ “No written reasons have been provided. The lengthy seventeen months delay in delivering judgment on a short point of law clearly contravened section 5 of the Time Limit for Decisions Act 2009 requiring delivery of a judgment within 30 days (or such extended period under section 8 as may be applied for in writing and granted by the Chancellor, of which there is no evidence and which, anyhow, could not possibly extend to seventeen months) and significantly prejudiced the Applicant, now aged 87 years, in the enforcement of his rights.”
Darnley’s case concerned property and he had sought to appeal a decision of the Full Court to the Court of Appeal granting a stay of execution of the High Court judge’s decision.
The CCJ judgment considered under what circumstances under the Guyana Court of Appeal Act appeals to it on Full Court matters is permissible. CCJ justices Saunders, Wit and Hayton ruled in favour of a broader construction of the words “upon appeal” which could be applied not only to substantive appeals but interlocutory decisions.
“We consider that the broader construction is the one to take. We can see no rationale for a construction that implicitly exempts from any possibility of appeal to the Court of Appeal an interlocutory order made by the Full Court to stay execution of an order made concerning a case under appeal to it. The general rule is that there must be an as of right route and a discretionary route to the Court of Appeal unless there are special instances where no appeal at all is allowed as prescribed by section 6(5) and section 6(6) of the Court of Appeal Act. If an interlocutory order of a High Court judge can be appealed to the Full Court and its interlocutory order made during the hearing of any appeal to it can be appealed to the Court of Appeal with leave of the Full Court or the Court of Appeal under section 6(4), what sensible rationale can there be for no such appeal being possible in respect of an interlocutory order as to a stay of execution in an appeal pending before it? We can find none and so consider such an order for a stay of execution made by the Full Court during the course of an appeal pending before it to be `a decision of the Full Court upon appeal from a judge of the High Court’ within section 6(4)”, the judgment said.
The CCJ said it would however, expect the Full Court rarely to grant leave to approach the Court of Appeal, considering its own views as to staying execution or not (taking account of the prima facie strength of an applicant’s pending substantive appeal ) to be final in the absence of special circumstances. The CCJ noted that the Full Court did grant a stay but, in giving leave to appeal, must have considered that there were special circumstances to create some doubts.
Discontinuance
“Indeed, support for such doubts arises from the Respondents’ (Reid and Reid) discontinuance on 27th February 2013 of their appeal in action No 534-W of 2006 where Persaud J had held the Applicant (Malweg) to be the owner of the property that is the subject of the substantive appeal of the Applicant to the Full Court”.
The CCJ also considered whether it was appropriate for a single judge to sit in any pending matter before the Court of Appeal.
It said in the judgment “In the case before us the substantive appeal is before the Full Court and it is only the Full Court’s grant of a stay of execution of the trial judge’s order that is under appeal to the Court of Appeal. Before the Court of Appeal hears that appeal, no single judge of it can have jurisdiction in interlocutory proceedings to determine the very sole issue to be determined by the Court of Appeal.”
The CCJ said that in considering matters to determine whether Malweg’s intended appeal has a realistic chance of success it had determined that the appeal will succeed. The CCJ noted that it had issued directions to the parties to the case to make written submissions and if it decided to grant special leave to Malweg it would proceed to determine the appeal and deliver judgment on the basis of the submissions without further argument from counsel.
In its orders, noting what it said was the “significant prejudice” already suffered by Malweg, the CCJ ordered the Court of Appeal to “take steps to fix a date for such a hearing as soon as is practicable”.
It also ordered that costs in the appeal and in the Court of Appeal be borne by Reid and Reid and to be taxed if not agreed.
Roopnarine Satram, CV Satram and M Satram appeared for Malweg while Roysdale Forde appeared for Reid and Reid.
Guyadin
Earlier this year, in another case, the CCJ 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 the High Court here..
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”, the judgment had said.
