The Caribbean Court of Justice (CCJ) yesterday upheld a Court of Appeal decision granting an extension to the Guyana Rice Development Board (GRDB) to appeal a Full Court decision awarding $99 million to rice miller Arnold Sankar for breach of contract.
A release from the court related that the CCJ, in a 4-1 decision, dismissed an application made by Sankar to appeal the Court of Appeal decision, noting that it agreed with the decision of the lower court, having found that it had the power to grant an extension of time in the interests of justice.
In its judgment, the CCJ ordered that Sankar’s application for special leave to appeal be dismissed, and that the GRDB be granted an extension of time to seek permission to appeal the decision of the Full Court of the Supreme Court, which had granted Sankar judgment in the amount of $99 million for an alleged breach of contract. It was noted that the GRDB has seven days from the day that judgment was delivered (yesterday) to take action, if action has not already been taken. As to costs, both parties were ordered to bear the costs of their application.
It was explained that Sankar sought damages from the GRDB on the grounds that there was a breach of agreement for the sale and purchase of paddy between himself and the Board of the company.
Sankar filed for damages but the case, which was before Justice Diana Insanally, was plagued by delays and procedural difficulties, and the judge eventually gave the Board an extension of time for filing its Defence, subsequently withdrawing an order that if the Defence was not filed by March 2, 2017, a period of two weeks, judgment would be given to Sankar.
The Board failed to file within that time, instead filing on April 10, 2017, in breach of the order made by the judge. Sankar then filed and served a summons and affidavit in support seeking an order that the Board’s affidavit of defence be struck out for failing to comply with the judge’s order and that judgment be entered in his favour. However, the Board filed an affidavit in answer when the matter was called and asked that the judge determine the summons before entering judgment.
The affidavit in answer was struck out for technical reasons but the judge granted that Board another two weeks to serve another. They later refiled the affidavit along with a summons seeking an extension to serve its affidavit of defence. Justice Insanally then recalled the order, citing the discretion of the court, but awarded costs of $500,000 against the Board for failing to file their affidavit of defence in time and for wasting the court’s time with the hearing of further applications. Sankar moved to the Full Court to appeal Insanally’s decision and was awarded judgment in the sum of $99 million. The GRDB Board then approached the Court of Appeal over the Full Court’s decision, and that process, the release noted, was also marred by delays and procedural glitches, but nevertheless, the Court of Appeal agreed to give the Board an extension of time.
“Given the circumstances of this case, the Court found that the Court of Appeal reached the conclusion which best served the interests of justice when it ordered that the Board be granted an extension of time to seek leave to appeal and granted leave to appeal. The Court agreed with Mr (Timothy) Jonas, Counsel for the Board, that several issues raised by him required consideration by the Court of Appeal: (1) whether Sankar’s claim, which was instituted by way of specially indorsed writ, was outside the parameters of Order 4, Rule 6 of the High Court Rules 1955 because it was a claim for damages for breach of contract and not “a debt or liquidated demand” as required by those rules; (2) whether there were discrepancies in the statement of claim, including the way in which the sum claimed was calculated; and (3) whether the Full Court was correct to set aside the decision of Insanally J to grant an extension of time for the Board to file its affidavit of defence in the circumstances in which Insanally J had made and “recalled” the unless order,” the CCJ stated. “Indeed, the Court found that the Board’s challenge to the unless order made by Insanally J and the findings of the Full Court on that particular point were important issues which ought to be determined by the Court of Appeal of Guyana. As such, the Court of Appeal was entitled to grant to the Board an extension of time to seek leave to appeal and leave to appeal in the interests of justice in accordance with Order 1, Rule 8 of the Court of Appeal Rules. In those circumstances, Mr. Sankar failed to convince the Court that he had a realistic prospect of successfully appealing the judgment of the Court of Appeal. Therefore, the application for special leave was refused,” it added.
It was noted that Barrow JCCJ provided a separate opinion on the matter. He found that Sankar had a realistic prospect of successfully arguing that the Court of Appeal had erred in law when it granted an extension of time “when there was no better excuse than ‘it was counsel’s fault’”. However, considering the merits of Sankar’s case, Barrow found that the Court of Appeal did have the jurisdiction to extend time.
“He found that because the Board had filed a defence before Mr. Sankar applied for judgment, the judge was entitled to withdraw her unless order and retroactively extend time for filing the defence. For that reason, Mr Sankar failed in his argument that the Court of Appeal misled itself into thinking that the Board had a reasonable prospect of success on appeal. The Court of Appeal had the jurisdiction to extend time and correctly exercised its discretion in granting the orders. Accordingly, he would have dismissed the appeal,” it was stated.
Mohabir Anil Nandlall and Rajendra R. Jaigobin appeared for Sankar.
