Peter Taylor & Company Ltd v Lall
| Jurisdiction | Guyana |
| Judge | Mitchell, J.A.,Vieira, J.A.,Massiah |
| Judgment Date | 08 July 1972 |
| Neutral Citation | GY 1972 CA 15 |
| Docket Number | 2064 of 1968 |
| Court | Court of Appeal (Guyana) |
| Date | 08 July 1972 |
Supreme Court
Mitchell, J.A.; Vieira, J.A.Massiah, JA…
2064 of 1968
J.O.F. Haynes, S.C. for appellants
A. Chase for the respondent.
Practice and procedure - Amendment of defence
This is an appeal from a ruling made by a judge of the High Court of Guyana, in the course of the trial and hearing of a substantive action in open Court, an action in which the respondent Harry Lall has claimed from the appellants Peter Taylor & Co. Ltd. Damages in excess of $500.00 (five hundred dollars) for libel falsely and maliciously printed and published of and concerning the plaintiff in the “Labour Advocate” a newspaper circulating in Guyana and abroad on the 2nd day of June, 1968 and an injunction restraining the defendants by themselves their servants and/or agents from circulating printing and /or publishing the said libel.
The defendants in their initial defence admitted that there was a publication in the issue of the “Labour Advocate” of 2nd June, 1968 with the words quoted therein but denied the other allegations. They denied that the said publication was defamatory of the plaintiff Harry Lall, or libellous of him and denied that the said words could reasonably have the meanings alleged by the plaintiff in his Statement of Claim. The defendants further said that in so far as the words consist of assertions of fact that the same were true in substance and in fact and in so far as the same consist of comment the said opinions were fair and bona fide comment on a matter of public importance and interest. Particulars were supplied by the defendants as to statements of fact.
At the actual hearing of the substantive action for libel, counsel for plaintiff opened his case and at the close of this opening remarks applied for leave of the court to split his case and reserve rebuttal evidence until when the defendants had given evidence in support of their defence.
Before the court ruled on the application to split the plaintiff's case, counsel for defendants applied for leave to amend the defence.
This application was opposed by counsel for the plaintiff. The defendants were then ordered by the court to submit the proposed amendments to their defence on or before a certain time and they failed to comply with the order within the time allowed. The court in the exercise of its judicial discretion refused to give an extension of time for compliance with its order. Counsel for the defendants then applied for leave to amend the defence to plead qualified privilege, justification and to add further particulars of fair comment. The court after having considered all the circumstances and in the exercise of its judicial discretion refused all the applications of the defence to amend the defence.
It is to be appreciated that this refusal by the learned trial judge occurred during the course of hearing the substantive action in open court and is in the nature of what is normally considered a “ruling” though it is actually a decision on an issue made by the trial judge during the actual trial.
It is from this “ruling” or decision on an issue during the hearing of the substantive action by which the judge refused leave of the defendants to amend the defence of the defendants that the defendants have appealed to this Court. When the appeal came up for hearing counsel for the respondent, Harry Lall indicated that he wished to make a submission in limine notice of which was previously given to counsel for the appellants.
Counsel for the respondent submitted that there is no right of appeal from the “ruling” of the learned trial judge as has been done by the appellants. He said further, that assuming that such a right existed leave to appeal to this Court should have been first and obtained either from the learned trial judge who made the ruling or from the Full Court of Appeal itself. Consequently, the Full Court had no jurisdiction to hear this appeal.
In support of his contention, counsel for the respondent (Harry Lall) referred to the Supreme Court Ordinance Chapter 7.
Section 89 of the Supreme Court Ordinance Chapter 7, which is now repealed by the Federal Supreme Court (Appeals) Ordinance, No. 19 of 1958 stated:
“Subject to the provisions of section 91 of this Ordinance and to rules of Court, an appeal shall lie to the Full Court from any judgment given or order made by a single judge of the Court in exercise of its civil jurisdiction in respect of which, there is by section 94 of this Ordinance, no appeal to the Court of Appeal.
Provided that (a) no appeal shall lie to the Full Court from any interlocutory judgment or order given or made without the leave of the judge by whom that judgment or order was given or made or of the Full Court, except in the following cases:–
(i) where the liberty of the subject or custody of infants if concerned; and
(ii) cases of the granting or refusing an injunction for appointment of a receiver; and
(iii) any decision determining the claim of any creditor, or the liability of any contributory, or the liability of any director or other officers under the Companies Ordinance, and any amending Ordinance, in respect of misfeasance or otherwise,
and (b) no appeal shall lie from a judgment or order in any action (including a counterclaim) where the amount claimed or the value of the property in respect of which the action is brought does not exceed two hundred and fifty dollars, except by leave of the judge by whom the judgment or order was given or made, or of the Full Court; and that leave to appeal shall not be given unless there is a substantial question of law involved.”
Section 94 of the Supreme Court Ordinance, Chapter 7, which was also repealed by the Federal Supreme Court (Appeals) Ordinance, (No. 19 of 1958) indicated the matters in which there was no appeal to the Court of Appeal. These included any interlocutory judgment or order made by a Judge of the Court except in the cases of a decree nisi in a matrimonial cause, judgment or order in an admiralty action determining liability inter alia.
It follows, therefore, that under the repealed sections 89 and 94 of the Supreme Court Ordinance, Chapter 7, that there was an appeal to the Full Court from an interlocutory judgment or order but not in a substantive matter or part thereof wherein it is provided that there is a right of appeal to the Court of Appeal. That fundamental state of the statute and to our mind that intention of the statute remains unchanged.
In the substantive action which was being heard when the learned trial judge made his ruling, there was, accordingly, no right of appeal to the Full Court according to the repealed Ordinance. This thinking has been perpetuated in the amendments to the Supreme Court Ordinance Chapter 7, as set out in the schedule of the Federal Supreme Court (Appeals) Ordinance, No. 19 of 1958.
The Federal Supreme Court (Appeals) Ordinance, 1958, (No. 19 of 1958) which came into effect on 31st May, 1958, amended certain sections of the Supreme Court Ordinance, Chapter 7 of the Laws of Guyana, and particularly the said Section 89 previously stated. For the said Section 89 previously mentioned there was substituted the following Section:–
“89 An appeal shall lie to the Full Court from any judgment given or order made by a single Judge of the Court in exercise of its civil jurisdiction in respect of which there is no appeal to the Federal Supreme Court.
Provided that no appeal shall lie to the Full Court from any judgment given or order made by a single judge of the Court with the consent of the parties or as to costs except with leave of the judge giving the judgment or making the order or the Full Court.
And provided further that no appeal shall lie to the Full Court from any judgment or order of a single judge referred to in subsection(5) or subsection (6) of section 9 of the Federal Supreme Court (Appeals) Ordinance, 1958.
Section 44 of the Supreme Court Ordinance, Chapter 7, previously referred to, was deleted.
Subsection 5 of Section 9 of the Federal Supreme Court Appeals Ordinance, 1958 states:–
“No appeal shall lie under this section:–
(a) from any order made in any criminal cause or matter;
(b) from an order allowing an extension of time for appealing from an order;
(c) from an order of a judge giving unconditional leave to defend an action;
(d) from an order obtained by default or made on an ex parte application;
(e) from an order of a judge exercising the jurisdiction of a magistrate under section 9 of the Summary Jurisdiction (Magistrates) Ordinance;
(f) from a determination of the Full Court under subsection (8) of this action;
(g) from an order absolute for the dissolution or nullity of marriage in favour of any party who having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree.”
Subsection 6 of Section 9 of the said Federal Supreme Court (Appeals) Ordinance, 1958, states:–
“No appeal shall lie under this section from any order of the Full Court or of a Judge of the Supreme Court where it is provided by any Ordinance that the decision of such Court or judge shall be final.”
According to the amendments, Section 91 of the then Supreme Court Ordinance was completely deleted. The deleted section 91 formerly dealt with “matters in which there was no appeal”.
Sections 94 to 98 inclusive were also, deleted. Sections 94 to 98, formerly dealt with “matters in which no appeal lies to the Court of Appeal”.
Counsel for the respondent further contended that the word “order” in the context of the new Section 89 mentioned above meant the determination of a cause or matter and was in marked contrast with a “ruling” made in the course of hearing a matter. He referred to Order 46 of the Rules of...
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