L.O.P Investments Ltd v Demerara Bank Ltd, Ward and Gaskin; Demerara Bank Ltd and Gaskin v L.O.P Investments Ltd

JurisdictionGuyana
JudgeRamson, J.A.
Judgment Date24 June 2008
Neutral CitationGY 2008 CA 7
Docket NumberCivil Appeal No. 27 of 2006 (No. 2)
CourtCourt of Appeal (Guyana)
Date24 June 2008

Court of Appeal

Ramson, J.A.; Roy, J.A.; Cummings-Edwards, J.A.

Civil Appeal No. 27 of 2006 (No. 2)

L.O.P Investments Limited
and
Demerara Bank Limited, Ward and Gaskin
Demerara Bank Limited and Gaskin
and
L.O.P Investments Limited
Appearances:

Mr. S. Datadin for the appellants.

Mr. V. Persaud for the 1st and 3rd respondents

Mr. P. Mohanlall for the 2nd respondent.

Practice and Procedure - Application for leave to appeal to the Caribbean Court of Justice — Application for stay of proceedings — Whether grant of leave as of right and a mere “gate — keeping exercise” — Prerequisites for grant of leave to appeal from Court of Appeal.

Ramson, J.A.
1

This application for leave to appeal as of right was made pursuant to Rule 10.2(a) of the Caribbean Court of Justice (Appellate Jurisdiction) Rules which came into force on the 24th day of June, 2005. These Rules made under the Agreement establishing the Caribbean Court of Justice were given the force of law by S. 3 of the Caribbean Court of Justice Act passed by Parliament of Guyana, which integrated the Caribbean Court of Justice with the judicial system of Guyana, a contracting party and a member of the Caribbean Community. Prior thereto, and more particularly, since 1973 with respect to constitutional matters, our Court of Appeal was the final Court in relation to all legal matters filed since Guyana attained nationhood, (See ART. 83 of the Constitution of Guyana 1966; section 7 of the Guyana Independence Act, CAP. 1:01; Guyana Independence Order 1966; Republic Act, CAP. 1: 02, s. 8 and the Judicial Committee of the Privy Council (Termination of Appeals) Act #14 of 1970). This regional review body, whose gestation commenced in April, 1970 at the 6th Conference of Commonwealth Caribbean Heads of Government, was ever present on political radar of the Commonwealth judicial commentators. In the Legal System of Guyana, M Shahabudeen, CCH. S.C. expresses it thus, at page 174:

“In heterogeneous societies a two tier system, with the second court being an external Court is generally recognized as a desirable guarantee of justice… In the case of Guyana, it seems that the best way; of doing this is that the country should participate as a founder member in a Court serving a region comprising countries with political, legal and sociological backgrounds similar to hers”.

2

Originating in an Appeal determined by this Court earlier, the basis of the Application for the onward progress to the Caribbean Court of Justice is the Instrument pertaining to the lis in issue i.e. a Debenture, issued by the applicant in favour of the 1st named respondent. The averments contained in the Affidavit in support are herein set out for the record:

8. The intended appellant has continuously contended in the matter herein that the security instrument held over its assets by the intended. Respondents could only be validly enforced by an Order of Court and Judicial proceeding (sic) were necessary because of the applicable law in the State of Guyana; more particularly, inter alia:

  • “(a) the intended applicants (sic) contends the security document was not taken or passed in accordance with Civil Law Act of Guyana, CAP. 6:01, Laws of Guyana Which required such instruments to be passed coram legi loci (emphasis mine)

  • (b) The appointment of an out-of Court receiver was not possible under Guyana Law, which required the enforcement of the security document by recourse to a Court of law”.

3

Based upon these pivotal averments the Applicant seeks the following Orders:-

  • (a) Leave to appeal the decision delivered on the 20th day of February, 2008 of the Court of Appeal of the Supreme Court of Judicature (Guyana) to the Caribbean Court of Justice.

  • (b) That stay of proceedings be granted of the said decision upon the grant of Leave to Appeal.

4

Counsel for the parties appeared on the date fixed for the hearing of the Application but, regrettably, neither seemed ready to advance, with the expected professional proficiency, informed legal arguments in favour of or against the grant of relief. This Court could only reasonably conclude that they were both persuaded, presumably by reputation or the unforensic gurgitation of the relevant authorities, both statutory and judicial, that relief was axiomatic, if not, a foregone eventuality.

5

At the instance of the Court, reference was made to a decision of Chang, J.A., as he then was, in Elizabeth Ross v. Coreen Sinclair #46 of 2003, delivered on the 13th day of July, 2007 and their mind- set soon betrayed their inexcusable expectation. It became apparent from their joint postures that this Court's intervention was a mere “gate-keeping exercise” (See Nelson, J., in Brent Griffith v. Revenue Authority et al, adopted by Chang, J.A. in the former case.)

6

Reflexively justifiable umbrage was taken to the notion that the acknowledged status of Guyana's Court of Appeal could have been so radically, if not unintentionally, diminished by the overdue and welcomed adoption of the Caribbean Court of Justice as its successor in judicial matters, i.e. “a municipal Court of last resort”, not a supranational one: — [See, Jurisdictional Boundaries of the CCJ by Duke E.E. Pollard in Guyana Law Review Vol. 5 (2007).] The expression “gate-keeping” is rather unfortunate and it could only have been inspired by thought-processes that may yet be shackled to the ethos of colonial grammar. The concept of gate-keeping forebodes a sequacious obsequiousness alien to respectful self-assessment, if not, professional pride. It would not be unfair to say that the expression does not meet the norms of concinnity in earlier judicial literature and it would be an injustice for this Court to turn a blind eye to the impression thereby created and, hopefully, our endogenous jurisprudence would be characterized by more felicitous language. His Lordship apparently, not without some studied meiosis, we surmise, sought to qualify this tropological endeavour by the prefatory phrase “a little more than”, thereby keeping ajar the proverbial door for any appropriate intervention this Court would, ex necessitate, make in applications of this nature. An adaptation of the lesson in Psalms 84 v. 10 seems more apposite in the circumstances:

“I had rather be a doorkeeper in the house of my God, than to dwell in the tents” configured for sterile servitude.

7

For present purposes, the complementarity envisaged by the legislation may well be described as a form of judicial anastomosis — the interconnect of the two deliberative fora, each directly contributing in their own way to the process of adjudication.

8

In the course of the exchanges between Bench and Bar, Counsel for the Applicant sought leave to file a supplementary Affidavit based upon a belated realization by him that the instant application did not fully comply with Rule 10.3(2)(a), i.e. “State succinctly all the fads as may be necessary in order to satisfy the Court below that the applicant has a right of appeal to the Court”. S. 6 of the CCJ Act confers such a right for it provides, so far as it is relevant:-

“An appeal shall lie to the Court from decisions of the Court of Appeal as of right:

  • (a) In civil proceedings where the matter in dispute or appeal to the Court is of the value of not less than one million dollars or where the appeal involves directly or indirectly a claim or a question respecting property or a right of the aforesaid value

  • (b) ….

  • (c) ….”

9

Counsel further submitted that his application, though defective for want of compliance with the procedural requisites, was not a nullity, relying, as he did, on the ruling in Elizabeth Ross v. Coreen Sinclair (supra). Leave, if permitted, would allow him to aver that the subject matter of the appeal met the value requirement set out in S. 6(a) of the CCJ Act, 2004 (supra) and/or the instrument at the centre of the litigation raised a question of great general or public importance within the purview of s. 7 of the CCJ Act.

10

Not unexpectedly, counsel for the respondents sought to resist the grant of indulgence contemplated by the ruling in Ross v. Sinclair, distinguishing it on the basis that:-

  • (a) the instrument, the subject matter at issue, did not come within the definition of property parameters with which S. 6(a) dealt in that a Value sum could not be attached to it and, therefore, leave as of right was neither an issue nor an option; and

  • (b) the application was essentially one within the configuration of S. 7 for which leave of this court with its hitherto judicially considered limitations, was required in accordance with Rule 10.2(b) and was therefore not as of right.

11

S. 7 provides: An appeal shall lie to the Court, with leave of the Court of Appeal, from a decision of the Court of Appeal:-

  • (a) In any civil proceedings where, in the opinion of the Court of Appeal, the question is one that by reason of its great general or public importance or otherwise, ought to be submitted to the Court; and

  • (b) In such other cases as may be prescribed by any law.

12

It will be readily appreciated that the objection by counsel for the respondents consists of a binary proposition, the first aspect of which, if successful, would necessitate an analysis of the other for jthe ultimate determination of the process at bar which, for all practical purposes, involved discreet questions of law, de hors the situation contemplated by Rule 10.3(2)(a) (supra). Rule 10.3(3) provides, so far as it is relevant:-

“An...

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