Chandroutie Persaud v Rafudeen Nizamudin
| Jurisdiction | Caribbean States |
| Judgment Date | 04 March 2020 |
| Date | 04 March 2020 |
| Docket Number | CCJ Appeal No. GYCV2019/014 |
| Court | Caribbean Court of Justice |
IN THE CARIBBEAN COURT OF JUSTICE
Appellate Jurisdiction
CCJ Appeal No. GYCV2019/014
Guyana Civil Appeal No. 113 of 2018
Special Leave — Jurisdiction of Full Court and Court of Appeal of Guyana — definition of summary proceedings — textual meaning — legislative intent — policy
Javen Jason Nizamudin (“Javen”), the Respondent, jointly held property under a Transfer of Lease with Chandroutie Persaud (“Chandroutie”), the First Applicant. The Respondent along with his wife and child resided on this property with his father, Rafudeen Nizamudin (“Rafudeen”), the Second Applicant and Chandroutie, Rafudeen's current wife. After a deterioration of the family's relationship, Javen and his family left the premises.
Javen brought legal action in the High Court by way of Fixed Date Application under the Civil Proceedings Rules 2016, seeking the sale of the property under the Immovable Property (Sale of Interests) Act. He asked for an equal share of the proceeds of sale reflecting his share of the land. The Applicants claimed that the property belonged to Chandroutie and that she had only included Javen's name as a trustee for Rafudeen, since at that time Rafudeen was engaged in legal battles with his former wife and the property would be subject to the dispute if his name was added.
The High Court granted Javen's application on 12 June 2018, ordering the sale of the property and that the net proceeds be divided equally between Javen and Chandroutie. The Applicants appealed this decision to the Court of Appeal. Javen responded with an application to have the appeal dismissed as an abuse of process and for lack of jurisdiction. He argued that under section 6(2)(a)(i) of the Guyana Court of Appeal Act, Cap. 3:01, a final order was made in summary proceedings of a civil matter and as such the Court of Appeal had no jurisdiction to hear the appeal but instead the Full Court had jurisdiction under section 79 of the Guyana High Court Act, Cap 3:02.
On 11 July 2019, the Court of Appeal struck out the Applicant's appeal for want of jurisdiction. The Applicants then applied to the CCJ for special leave to appeal against the decision of the Court of Appeal to strike out their appeal.
The CCJ, in a judgment delivered by Justice Jamadar JCCJ, found that two issues needed to be answered: 1) whether the proceedings brought be Javen were ‘summary proceedings’ for the purposes of the Court of Appeal Act and 2) whether it would be arguable that the appeal lies to the Court of Appeal and not the Full Court. The Court noted that this case was dependent on statutory interpretation. It was of the view that the best approach to the issues balances three fundamental teleological poles, considering the textual meaning, legislative intent and policy considerations.
The Court first noted that neither the Court of Appeal Act nor the High Court Act define “summary proceedings”. The Court further stated that when the Court of Appeal Act was read as a whole, its purpose and intent is to ‘confer on the Court of Appeal jurisdiction to hear and determine appeals from the High Court and for matters connected herewith’. It found that section 6 created an exclusive civil jurisdiction for the Court of Appeal. The plain language of the statute showed that subsection 6(2)(a) created four categories of civil proceedings for which their appeals should not lie in the Court of Appeal, summary proceedings being one such category.
The Court noted that although such appeals were not available in the Court of Appeal, they could be heard in the Full Court (pursuant to section 79 of the High Court Act). The Court remarked that creating an exclusive jurisdiction with specific exceptions was a clear policy decision of the legislature to meet the unique needs of the Guyanese legal system. He outlined that unless the policy was shown to be unjust or arbitrary, the Court's function was to simply apply it in a fair manner.
For the definition of summary proceedings, the Court first assessed the meaning of ‘summary’. Reference was made to Chung v AIC 1 where this Court in interpreting the same section defined the plain meaning of ‘summary’ as “short, speedy, without delay or without formality”. Secondly, as it concerned the meaning of proceeding, the Court rejected the Applicants' contention that it was synonymous to ‘judgment’ since this would change the plain language of the section and no ambiguity existed to warrant such change. The Court also referred to several dictionaries which defined summary proceedings as follows: ‘without the customary legal formality’, ‘formal course of legal proceeding is disregarded’, ‘without ordinary incidental formalities’ and ‘swift and relatively simple… which dispose of a claim without a full trial’.
The Court further recognised the importance of paying special deference to local courts who understand the workings of their procedural law. It referred to Chung v AIC 2 in which the Court of Appeal of Guyana found summary proceedings to be an ‘abridgment of a trial…in which the established form of legal proceeding is not adhered to’. As evidence of customary practice in Guyana, the Court noted that the
Based on these points the Court found that ‘summary proceedings’ under section 6(2)(a)(i) had two main features: being ‘short, speedy, without delay or formality’ and its process not following that of a full trial or regular common law process. This Court therefore agrees with the Court of Appeal that the combined effect of the provisions leads to the inevitable conclusion that appeals against orders made under Order 12 of the Rules of the Court should lie to the Full Court.
The Court also assessed the CPR 2016 and found that generally there were two kinds of originating processes in the civil jurisdiction, those commenced by Statement of Claim and Fixed Date Application. The Court noted the differences in proceedings initiated by Fixed Date Applications as being created for expeditious determination. One of the features noted was the prescription by Part 8 of the CPR 2016, that matters commenced by Fixed Date Application must be able to be determined at the date fixed for hearing of the application. The Court stated that an analysis of the CPR 2016 supported the overriding objective of dealing with cases justly and in pragmatic ways.
The Court found that matters which could be dealt with expeditiously, such as Fixed Date Applications were summary proceedings and if taken on appeal to the Full Court, could be dealt with in a timely manner as opposed to the Court of Appeal. The effect of this was the increased efficiency of the Guyanese court system. The Court stated that the result of the statutory interpretation, through evaluation of textual meaning, context, local legal custom and policy, aligned with the practical consequences of excluding certain matters from the Court of Appeal's jurisdiction.
In the Court's view, an assessment of all these considerations resulted in the application for special leave being refused. The action commenced by Javen on 16 April 2018 was decided by 12 June 2018 in a relatively swift and simple manner with no need for a full trial. For the purposes of section 6(2)(a)(i) of the Court of Appeal Act of Guyana, the instant proceedings were found to be summary proceedings and therefore the Full Court of the High Court was the proper place for the appeal. The CCJ found that the Court of Appeal was correct in striking out the Applicants' appeal for lack of jurisdiction and as such the application for special leave in this case had to be refused, since it was ‘devoid of merit and bound to fail.’ 3
The Court therefore made the following orders:
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a. This application for special leave is dismissed.
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b. The Applicants shall pay the Respondent basic costs of this special leave application in the sum of $179,500.
CCJ 4 (AJ) (GY)
IN THE CARIBBEAN COURT OF JUSTICE
Appellate Jurisdiction
ON APPEAL FROM THE COURT OF APPEAL OF GUYANA
CCJ Appeal No. GYCV2019/014
Guyana Civil Appeal No. 113 of 2018
BETWEEN
CHANDROUTIE PERSAUD
APPLICANTS
RAFUDEEN NIZAMUDIN
AND
JAVEN JASON NIZAMUDIN
RESPONDENT
Before The Honourables Mr Justice J. Wit, JCCJ
Mme Justice M. Rajnauth-Lee, JCCJ
Mr Justice P. Jamadar, JCCJ
Appearances
Mr Sanjeev J. Datadin and Ms Jameela Ali SC for the Applicants
Mr Mohabir Anil Nandlal and Ms Anuradha Deodasingh for the Respondent
of
The Honourable Justices Wit, Rajnauth-Lee and Jamadar
Delivered by
The Honourable Mr Justice Jamadar
on the 4 th day of March 2020
This application involves a single issue: whether special leave should be granted by the CCJ 1 to permit an appeal against an order of the Guyana Court of Appeal, that struck out an appeal to it on the basis that it had no jurisdiction to hear the appeal, the Full Court of Guyana being the proper court vested with the requisite jurisdiction to hear the said appeal. This issue turns specifically on whether the Guyana Court of Appeal had jurisdiction to hear the Applicant's appeal against a final order 2 of a single judge of the High Court, made on a Fixed Date Application, which granted judgment to the Respondent on his statutory claim under the Immovable Property (Sale of Interest) Act for the sale of property and division of the proceeds of sale.
The essential facts are as follows. The property in dispute was held jointly by the Respondent Javen Nizamudin and the First Applicant Chandroutie Persaud, pursuant to a Transfer of Lease duly executed on 19 March 2014. There is no dispute about the bona fides or legality of this deed. The...
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