Deane v Allamby
| Jurisdiction | Caribbean States |
| Judge | Byron, P.,Saunders, J.,Wit, J.,Hayton, J.,Rajnauth-Lee, J. |
| Judgment Date | 23 November 2016 |
| Court | Caribbean Court of Justice |
| Docket Number | CCJ Appeal No. BBCV 2016/004; BB Civil Appeal No. 2 of 2015 |
| Date | 23 November 2016 |
Caribbean Court of Justice
Byron, P. CCJ; Saunders, J. CCJ; Wit, J. CCJ; Hayton, J. CCJ; Rajnauth-Lee, J. CCJ
CCJ Appeal No. BBCV 2016/004; BB Civil Appeal No. 2 of 2015
Mr. Clement E Lashley, QC and Ms. Honor Chase for the appellant
Mr. Errol Niles for the respondent
Civil practice and procedure - Extension of time to file notice of appeal — Whether the appellant was an appellant before the Court of Appeal — Powers conferred by statute must be read subject to limitations and conditions prescribed by statute — Whether the Court should extend the time to appeal in this case if it had jurisdiction — No justifiable grounds for delay in seeking to appeal — Appeal dismissed — Section 7 of the Caribbean Court of Justice Act, Cap. 117.
This appeal was filed before the CCJ on 29th July, 2016 seeking an order that would allow the appellant to file an appeal before the Court of Appeal out of time. Sheryard Deane, (hereinafter “the appellant”), contended that the Court of Appeal erred in deciding that it could not extend the time for giving notice to appeal from the Magistrate's Court, and that even if it could, there was no reasonable justification for doing so. Cynthia Allamby, (hereinafter “the respondent”), contended that there was nothing before the court as the appeal was a nullity. We heard the appeal and dismissed it on 31st October, 2016. These are our reasons.
On 6th December, 2013, the respondent commenced ejectment proceedings against the appellant in the Magistrate's court. The complaint sought a repossession order for a parcel of land that was occupied by the appellant as a tenant on the ground that the tenancy had either expired or was terminated by way of notice. On 21st July, 2015, the learned Magistrate, Her Worship Ms Wanda Blair, ordered that the appellant vacate the premises by 22nd September, 2015. Neither the appellant nor her counsel in the matter, Mr Lashley QC, appeared for the trial.
On 1st October, 2015, the appellant filed an application in the Court of Appeal of Barbados for an extension of the 7-day time limit in which to file a notice of appeal against the decision of the learned Magistrate. The Court of Appeal dismissed the application on 2nd March, 2016 and subsequently granted leave to the appellant to appeal to this Court.
Mr Niles, Counsel for the respondent, contended that the proceedings before the Court of Appeal were for leave to file an appeal out of time and since leave was refused, there was never any appeal before the Court of Appeal. He relied on the dicta of Crane J in James v. Crawford [ (1969) 14 WIR 338.] in which a distinction was made between the status of an intended appellant and an appellant and submitted that in this case there was never an appellant before the Court of Appeal. He also submitted that the decision of a court in refusing to extend time to appeal is not an order or judgment from which there can be an appeal, relying on dicta from Lord Mance in Noel Campbell v. Queen. [2010] UKPC 26 at paragraph [18].
In this case, the Court of Appeal granted leave to appeal under section 7 of the Caribbean Court of Justice Act, Cap. 117, and the appeal was regularly filed in accordance with the rules of court. Section 7 of the Act provides that:
“An appeal shall lie to the Court with leave of the Court of Appeal from the decisions 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 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.”
The powers conferred under section 7 of the Caribbean Court of Justice Act, Cap. 117 give the Court of Appeal an independent and exclusive power to rely on its opinion to determine whether a question raised on appeal from any decision is of general or public importance and ought to be submitted to the Court. The Court of Appeal would be entitled to reject any application under this section if it was aimed at appealing a decision simply refusing leave to appeal. This would be in keeping with the dicta of Lord Mance to which Mr Niles had referred. After explaining that in Lane v. Esdaile, [1891] A.C. 210 at 214. the House of Lords held that there could be no appeal to the House in respect of a decision of the Court of Appeal to refuse special leave to appeal to it outside the relevant one-year period, Lord Mance summed it up [2010] UKPC 26 at [19] by saying that “the implicitly intended finality of an order refusing leave to appeal, the “absurdity” of allowing appeals on the question whether there should be leave to appeal and the “common-sense” of the rule in Lane v. Esdaile were all reaffirmed” in several cases.
However, the Court of Appeal had not simply refused to extend time to appeal. The decision was based on statutory interpretation. In this case, the question related to whether its interpretation that the Magistrate's Court Act, Cap. 116A denied jurisdiction to extend the time to appeal was correct. This was a question which affected every litigant who desired to appeal from the decision of a Magistrate. Thus, the Court of Appeal was entitled to consider that there was general or public importance in the appeal. The statute unequivocally empowers the court to grant leave once it held that opinion. In any event, and en passant, it would not appear that an appeal against such a decision could be open even if one did not agree with the Court of Appeal. Thus, we considered that we ought to consider the merits of the appeal and rejected Mr Niles' submission.
The crux of the appellant's argument before this Court was that Goodridge JA erred in law when she concluded that the Court of Appeal had no jurisdiction to extend the time for hearing magisterial appeals. Mr Lashley contended that power to extend the time for magisterial appeals was conferred by the Magistrates Court ( Civil Procedure) Rules 1958, enacted under the authority of the Magistrates Jurisdiction and Procedure Act 1958. This argument could not be sustained because section 269(2) of the Magistrate's Court Act 1996, Cap. 116A was specifically repealed the 1958 Act. In Barbados, the repeal of primary legislation necessarily entails the repeal of the subsidiary...
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