Gayadin et Al v Republic Bank (Guyana) Ltd

• Jurisdiction: Caribbean States
• Judge: Nelson, J. CCJ.
• Judgment Date: 25 July 2014
• Court: Caribbean Court of Justice
• Docket Number: CCJ Application No. GYCV 3 of 2014; GY Civil Appeal No. 43 of 2012
• Date: 25 July 2014

Caribbean Court of Justice

Nelson, J. CCJ.; Saunders, J. CCJ.; Anderson, J. CCJ.

CCJ Application No. GYCV 3 of 2014; GY Civil Appeal No. 43 of 2012

Gayadin et al

and

Republic Bank (Guyana) Limited

Appearances:

Mr. Timothy M Jonas for the applicants.

Mr. Kamal Ramkarran for the respondent.

Statute - Interpretation — Jurisdiction of the Court of Appeal — Special Leave to appeal — Whether the Court of Appeal had jurisdiction to entertain the Borrowers' application under section 6 of the Court of Appeal Act — Appeal against interlocutory order — Finding that the Court of Appeal had jurisdiction to hear the claim.

Civil Practice and Procedure - Summary Judgement — Whether the trial judge erred in finding that there were not serious questions to be tried and whether the case should be remitted to a Commercial Court judge — Appeal allowed and pursuant to section 11(6) of the Caribbean Court of Justice Act remitted the case for trial afresh.

1 The appellants (the ‘Borrowers’) benefited from overdraft facilities and loans secured by promissory notes from the respondent (the ‘Bank’). Individual Borrowers also signed various guarantees to repay the debt of other Borrowers, each giving various forms of security for the respective debts. In June 2008 the Borrowers failed to honour their obligations under the loan agreements and guarantees so the Bank initiated proceedings in the High Court of Guyana to recover the sums owed and to enforce the securities.

2 The trial judge struck out the Borrowers' affidavit of defence as disclosing no triable issue and awarded summary judgment in favour of the Bank. The judge ordered that the Borrowers pay their debts in full and allowed the Bank to proceed to enforce the securities. The Borrowers appealed the decision of the trial judge to the Full Court. The Full Court found that the case did raise triable issues, reversed the trial judge's decision and ordered that the case be remitted for trial afresh. However, it went on to determine some aspects of the case and gave directions to the trial judge on the approach to other aspects. Dissatisfied with the Full Court's handling of the matter, the Borrowers applied to the Court of Appeal for leave to appeal the decision of the Full Court.

3 By majority the Court of Appeal dismissed the application for leave on the ground that it, the court, lacked jurisdiction to entertain the application. It found that the order made by the Full Court was not a final order and section 6 of the Court of Appeal Act does not confer on the court jurisdiction to hear an appeal from an order of the Full Court that is not final. Justice Cummings-Edwards dissented and took the view that the Court of Appeal had jurisdiction to hear the appeal. Again dissatisfied, the Borrowers sought special leave of the Court to appeal the majority's decision.

4 The CCJ heard the application on written submissions. The Court examined section 6 of the Court of Appeal Act, particularly the relationship between sub-sections (2) and (4). The Court ruled that sub-section (2) outlines four broad instances in which a litigant has a right of appeal to the Court of Appeal, including where his matter is one in which a judge of the High Court or the Full Court made a final order that was not one of four kinds of orders specified in the sub-section. However, a litigant who wished to appeal from an interlocutory order may do so under sub-section (4) which also outlines instances in which the Court of Appeal may hear appeals with leave of the Full Court or the Court of Appeal.

5 The CCJ held that the Court of Appeal was correct to find that there was no right of appeal afforded to the Borrowers by virtue of section 6(2). It was found, however, that section 6(4) gave the Borrowers a right to seek leave to appeal either from the Full Court or the Court of Appeal. The Court concluded that Cummings-Edwards, J.A. was correct to take the view that there was jurisdiction in the Court of Appeal to entertain the application before that court for leave to appeal.

6 After outlining the options available and considering the period for which the litigation was pending, the Court granted the Borrowers special leave to appeal the Court of Appeal's decision and, assuming the powers of the Court of Appeal, the Court dismissed the Borrowers' application for leave in the Court of Appeal. The Court remitted the case for trial afresh in the Full Court and ordered that each side bear its own costs.

This summary is not intended to be a substitute for the reasons of the Caribbean Court of Justice or to be used in any later consideration of the Court's reasons.

Nelson, J. CCJ.

THE BACKGROUND

1 At various times during the period from April 2001 to April 2007 the four applicants (“the Borrowers”) benefited from credit extended to them by the respondent, Republic Bank (Guyana) Limited (“the Bank”). The Bank provided them with overdraft facilities and advanced various sums of money secured by promissory notes to repay the same. The Borrowers, individually and at varying times, also signed guarantees to repay the debt of other individual Borrowers, executed by way of bonds, and deeds of mortgage in favour of the Bank as security for the debt.

2 In June 2008 the Borrowers defaulted on the payment of their indebtedness to the Bank and also failed to honour the obligations under the guarantees. In response, the Bank initiated proceedings in the High Court to recover the various sums owed and to enforce the securities.

3 On 22nd January 2010, the trial judge in the Commercial Division of the High Court struck out the affidavit of defence of the Borrowers as disclosing no triable issue and awarded summary judgment in the Bank's favour. The court ordered the debts to be paid in full and gave the Bank liberty to proceed in execution against the properties that were the subject of the bonds and deeds of mortgage.

4 The Borrowers appealed the decision of the trial judge to the Full Court. The Full Court reversed the judge's decision holding, in essence, that there were indeed triable issues that arose...