The Caribbean Court of Justice (CCJ) has ruled that the Guyana Court of Appeal hear the application of Christopher Persaud, who is a litigant in an oppression action application against Toolsie Persaud Ltd but had the case dismissed in the High Court.
The CCJ, finding that neither the Full Court nor the Appeal Court had used their power to deal with the matter justly in the presence of procedural errors, ruled on July 12th that the Court of Appeal’s dismissal of Christopher Persaud’s application be set aside and directed that the court hears Christopher Persaud’s appeal of the High Court’s decision on the matter.
Furthermore, the CCJ ordered that the cost of Christopher Persaud’s application be borne by Toolsie Persaud Limited.
Christopher Persaud, who was acting as an executor for David Persaud, the deceased brother of Toolsie Persaud and a minority shareholder in the company, had also alleged that Toolsie Persaud had exercised the powers of the directors of the company to the prejudice of the deceased.
Before his death, David Persaud had filed High Court action against Toolsie Persaud of Toolsie Persaud Limited, alleging that he had administered the business and affairs of the company in an oppressive manner
The CCJ in its judgment related that the High Court proceedings took place before Justice Rishi Persaud, who eventually dismissed the application. The case, however, occurred around the time there was a change in the High Court rules, which effectively altered the way oppression actions would be instituted under the Companies Act, rendering such decisions appealable to the Court of Appeal as opposed to the Full Court or the Court of Appeal, depending on the circumstances.
The applicant, accordingly, appealed before the Court of Appeal, and had his application opposed by the company, which argued that the Court of Appeal had no jurisdiction to hear an appeal from a judge in Chambers in proceedings which began by way of originating summons.
Given their objection, Christopher Persaud filed an application to the Full Court to determine whether the application fell within their jurisdiction or the Court of Appeal, and seeking an extension of time to file an application before the Full Court if the former was found to be the case.
“Having been duly informed that there was an appeal before the Court of Appeal, the Full Court dismissed the application before it as an abuse of process. The Applicant then appealed this decision to the Court of Appeal on the basis that it was erroneous in law,” the CCJ explained.
However, in January this year, the Court of Appeal dismissed the appeal of the Full Court decision on the ground that it was void, and dismissed on jurisdictional grounds the substantive appeal of the High Court decision, stating that it was not affected by the new rules.
In its ruling on July 12, the CCJ said “This Court reiterated that Parliament introduced into Guyana the complainant oppression remedy in section 224 of Cap 89:01. This remedy is generally regarded as a broad and flexible equitable tool given to the courts to deal with complainant oppression in companies that is not to be defeated by technicalities. It is this remedy which the Applicant sought and having been unsuccessful thereafter did all that a diligent litigant ought to have done to secure his appeal,” the CCJ noted.
“Notwithstanding this, the unfortunate result was that the Applicant ended up being caught in a web of procedural technicalities which frustrated his substantive appeal. This Court stated that despite the confusion which arose with the promulgation of the CPR, the Court of Appeal had an inherent power to rectify matters where there has been a procedural error to ensure cases are dealt with justly. Unfortunately, neither the Full Court nor the Court of Appeal availed itself of this power. This Court therefore felt duty bound to exercise its inherent power to ensure that unnecessary disputes over procedural matters are discouraged in order to uphold the overriding objective to deal with cases fairly and expeditiously so as to produce a just result,” it continued.
The CCJ, therefore, ruled in favour of Christopher Persaud, ordering that his appeal of the matter be heard.
Timothy Jonas and Sandia Ramnarine appeared for the applicant while Robin Stoby SC and Stephen Fraser SC appeared for Toolsie Persaud and Toolsie Persaud Ltd.
