Ramdeo v Heralall
| Jurisdiction | Guyana |
| Judge | Ramson, J.A.,Cummings-Edwards, J.A |
| Judgment Date | 09 July 2008 |
| Neutral Citation | GY 2008 CA 8 |
| Docket Number | Civil Appeal No. 100 of 2000 |
| Court | Court of Appeal (Guyana) |
| Date | 09 July 2008 |
Court of Appeal
Ramson, J.A.; Roy, J.A.; Cummings-Edwards, J.A.
Civil Appeal No. 100 of 2000
Mr. K. Ramjattan for the applicant.
Mr. M. Bacchus for the 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.
The instant application derives its organic genesis in an appeal heard by this Court and in which the applicant was the Respondent. Having succeeded before the learned trial judge, he retained counsel, Mr. R. Rajkumar, to represent him before this Court. At all material times, he was represented not only by Counsel but by his duly constituted attorney who, for the record, has deposed to the Affidavit in support of the instant application and was present in the Court of Appeal at all material times, including the hearing of the instant application. It would therefore be fair to conclude that his then attorney-at-law had his actual authority to so represent him in the substantive Appeal: [See Watson v. Fernandes (2007) CCJ 1 (AJ) and ORD 1, r. 2 and r. 6 of CAP 3:01 — “party” and “respondent”] and was therefore duly authorised to concede the Appeal.
At the hearing of this Motion for leave to appeal filed by a different attorney-at-law, the gravamen of his complaint appeared to be encapsulated in paragraphs 4 and 6 of the affidavit in support filed therewith and are set out hereunder for ease of reference:
4. “The Appeal by Heralall to the Court of Appeal was successful on the ground that the Learned Justice Roy erred when he set aside the appellant's title when he had no legal basis to so do primarily on the basis that equitable interest in land is not a doctrine (Sic) known to the law of Guyana.”
6. “That the Court of Appeal did not properly asses (sic) the evidence upon which the Learned Justice Roy came by his ruling; and, was wrong not to find that the appellant was not a bona fide purchaser for value without notice. My principal is advised that principles of equity do apply to registered land in Guyana.”
For the sake of completeness I set out verbatim the averment contained in paragraph 4 of the Respondent's Affidavit in the answer which I perceive represents the piece de resistance of his obsecrations to this court to deny the applicant's prayers for relief.
4. “With respect to paragraphs 4 and 6 of the affidavit I am advised by Mr. Murseline Bacchus, attorney-at-law and verily believe that the appeal was allowed after Mr. Ramesh Rajkumar, attorney-at-law who appeared for the applicant/respondent Conceded that the respondent's case at the hearing before Justice Roy Disclosed no fraud — that being the only ground upon which my title could have been set aside.” (emphasis ours)
This averment has not been contradicted by the Applicant. It would appear that Counsel for Applicant grounded his client's claim for relief on a cursory and unforensic examination of the ruling of the Caribbean Court of Justice in Brent Griffith v. Revenue Authority et al (# 1 of 2006. CCJ). This Court has had cause to pronounce upon its breadth of learning and the parametric limitations which duly trigger and attend S.6 of the Caribbean Court of Justice Act, 2004 [see L.O.P Inv. v. Demerara Bank Ltd. et al (No. 2) (Civil Appeal # 27/2006.)]. For the avoidance of doubt, in the latter case we analysed in extenso the former case and, in conclusion, refused the applicant leave both under S. 6 and S. 7 of the aforesaid Act.
In the instant application the Applicant averred in paragraph 10 of his Affidavit:
10. “That I am advised (sic) that this Appeal to the Caribbean Court of Justice is as of right”,
a clear reference to S.6 of the CCJ Act.
At the hearing it would appear that counsel for the applicant was unprepared to treat with the embedded nuances in the aforesaid Brent Griffith, the rudimentary requirements of S. 6 of the Act and PART 10, Rule 10.3(2)(b) of the 2008 Rules, which took effect on the 1st day of April 2008 i.e. “state succinctly such facts as may be necessary in order to demonstrate that the applicant is entitled to appeal under the provision so identified”. For the record I set out verbatim his submission in this regard:
“The gatekeeper merely ensures that the ticket, that is, the application which satisfies Rule 10.3 2(a) and (b) is presented, and thereafter must allow the applicant entry. It cannot shut the gate!”
He seemed unaware that his application did not meet the basal conditions for its due consideration by this Court and, quite understandably, did not seek leave during his arguments to supply the necessary data which would, ex facie, qualify the application for our usual more comprehensive consideration. As we indicated in L.O.P INV. Ltd. v. Demerara Bank Ltd. (No. 2) (supra), out of deference for the reasoning of Chang, J.A. in Elizabeth Ross v. Coreen Sinclair (Civ. App. # 46 of 2003), and judicial comity, leave would normally be granted so that the applicant could meet the procedural deficiencies evident in a matter of this kind. I examined the Affidavit in Support and could not find any reference to the value of the land in issue, an evidential sine qua non, and on this ground I could have determined this Application summarily for non-compliance with S. 6. i.e. “(a) in civil proceedings where the matter in dispute on 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.” For present purposes I do not intend to repeat our discourse on this issue in Ross but will adopt, mutatis mutandis, our reasoning so far as it is relevant here.
However, I feel constrained to deal with the contentions of counsel extrapolated from the averments set out in paragraphs 4 and 6 of his affidavit in support, (supra), if only to satisfy the uninitiated that endeavours of this kind are given the appropriate consideration.
Firstly. Assuming but not admitting; his contention in paragraph 4 is accurate i.e. “the Court of Appeal's ruling was based primarily on the fact that equitable interest in land is not a doctrine (sic) known to the law of Guyana”, it would seem that his perfunctory reliance upon Ishriprashad Dec'd v. Jaikaran and Sons Ltd. (1951) L.R.B.G. 86 is wholly misplaced. Had he taken the trouble to consider the paragraph out of which he extracted it from Ramsahoye's Development of Land Law in British Guiana (p. 281) he may have persuaded himself to seek wiser counsel before advancing that case as authority for the proposition on which he was relying. He found himself on the horns of a dilemma since, apart from its citation, the case report was not produced for the benefit of the scrutiny by this Court. Had he been familiar with the contents of the Report he would have readily appreciated that the extract from Dr. Ramsahoye's Book fell short of endorsing it as anything but a judicial aberration. Subsequent to the hearing, written submissions, including his analysis of the case, were received.
I have carefully considered the text of the Report at (1951) L.R.B.G. 86 and have concluded that Justice Ward relied upon two English Cases at p.88, London and South Western Railway Co. v. Gomm (1882) 51 LJ N S 530 and Woodall v. Clifton [1905] 2 Ch. 257 which decided that a covenant in a lease conferred on the lessee an equitable interest in the land. Conspicuously absent from the report is any reference to S.3 of the Civil Law Ordinance 1916 which, in pari materia, is reproduced in S. 3 of the Civil Law of Guyana Act, CAP 6:01. This section so far as is relevant here, expressly provides:
S.3. From and after the date aforesaid —
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(a) ……
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(b) ……
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(c) The English Common Law of real property shall not apply to immovable property in Guyana;
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(d) There shall be as heretofore one common law for both immovable and movable property, and all questions relating to immovable property within Guyana and to movable property subject to the law of Guyana shall be adjudged, determined, construed and enforced, as far as possible, according to the principles of the common law of England applicable to personal property:
Provided that—
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(i) ……
Upon due reflection, counsel for the applicant was obliged to concede that, in England, no equitable interest exists in personalty or movable property. In that very year, it is not without some significance that Worley, C.J. refused to grant a declaration to a purchaser of a licence to cut wood who was put in possession of the land on the basis that, unlike the position in England, no equitable interest existed: Greenheart Producers Ltd v. Sutton (1951) L.R.B.G. 72 at p. 79 “This is therefore another instance where the application of the principles of the English Common Law and Equity is prevented by the statute law of the Colony”, even though “(t)he result may seem to be contrary to the real justice of the case…”
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Further, counsel for the respondent invited this Court to have regard to Dr. Ramsahoye's acknowledgment that the view of Ward, J. “was clearly contrary to a great line of authority in the law of British Guiana” (p. 281.), and the formidable endorsement of the law on this issue by Chancellor George in Fazal v. Annamanthadoo (1991) 48 W.I.R. 150 and Luckhoo, C.J. in Kitty and Alexanderville Village Council v. Vieira (1961) 3 W.I.R. 249, in the latter of which the learned Chief Justice stated at p. 252 letters “D-G”
“It seems to me that the removal of chattels real from the category of personal property in order to define movable property does not have the effect of removing the operation of the principles applicable to personal property in England so...
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