Guyana National Co-Operative Bank v R N Persaud Company Ltd v The Registrar of Deeds
| Jurisdiction | Caribbean States |
| Judge | Mr Justice Anderson,Barrow,Rajnauth-Lee,Burgess,Hayton,Anderson |
| Judgment Date | 29 May 2019 |
| Neutral Citation | [2019] CCJ 08 AJ |
| Date | 29 May 2019 |
| Docket Number | CCJ Appeal No GYCV2018/007 |
| Court | Caribbean Court of Justice (Appellate Jurisdiction) |
[2019] CCJ 8 (AJ)
IN THE CARIBBEAN COURT OF JUSTICE
Appellate Jurisdiction
Mr Justice D Hayton, JCCJ
Mr Justice W Anderson, JCCJ
Mme Justice M Rajnauth-Lee, JCCJ
Mr Justice D Barrow, JCCJ
Mr Justice A Burgess, JCCJ
CCJ Appeal No GYCV2018/007
GY Civil Appeal No 43 of 2012
Mr Timothy Jonas for the Appellant
Mr Sanjeev Datadin for the First and Second Respondents
Mr Nigel Hawke and Ms Debra Kumar for the Third Respondent
Civil practice and procedure - Appeal — Application for special leave to appeal — Jurisdiction of full court to examine the merits of the appeal — Abandonment — Whether matter was abandoned pursuant to Order 32.
of
The Honourable Justices Hayton, Anderson, Rajnauth-Lee, Barrow and Burgess
Delivered by
The Honourable Mr Justice Anderson on the 29 th day of May 2019
By Notice of Application filed with this Court on 24 August 2018, the Guyana National Cooperative Bank, (‘the Bank’), sought special leave to appeal the decision of the Court of Appeal given on 23 July 2018 allowing an appeal from the Full Court. The Full Court had decided that the Bank's action, begun almost twenty years earlier, had been abandoned and could not be further prosecuted, whereas the Court of Appeal had decided to remit the matter to the Full Court to consider whether it had jurisdiction to decide on the issue of abandonment.
In order to secure special leave, the Bank had to demonstrate to us that the grounds of appeal had good prospects of success. Special leave was granted at a Case Management Conference held on 21 January 2019, this Court being satisfied that the proposed appeal has a realistic chance of success, so that there might be a miscarriage of justice if special leave were not granted. A hearing was then held to determine whether or not the orders of the Court of Appeal and the Full Court should be set aside.
At the conclusion of the hearing on 26 March 2019, this Court allowed the appeal by the Bank and ordered that the orders of the courts below be set aside and that the case be remitted to the High Court for the expeditious hearing of the substantive matter of the determination of the Bank's action. We also made certain costs orders. We promised then that we would give reasons for our decision and we do so now.
The action which lies at the root of this appeal stems from an agreement made in February 1996 between the Bank and R.N. Persaud Company Limited, the First Named Respondent. It was agreed that the Bank would make available lines of credit to R.N. Persaud Company Limited, with overdraft facilities, in return for the company agreeing to observe and comply with all the terms and conditions contained in the agreement as they pertained to the overdraft facilities. Pursuant to the agreement, R.N. Persaud Company Limited executed in favour of the Bank an irrevocable Power of Attorney for the purpose of, inter alia, registering a debenture or charge on its properties in favour of the Appellant in the sum of $340,000,000.00. On the 21 March 1996, the debenture or charge was duly executed by the Director and Secretary/Director of R.N. Persaud Company Limited and subsequently registered thereby creating both a fixed and floating charge on its present and future assets. On 24 August 1998, the Bank, upon request by R.N. Persaud Company Limited, agreed to reschedule the loan by way of Promissory Note. As a result of the continued failure by R.N. Persaud Company Limited to uphold its obligations under the loan and satisfy the debt, the Bank, by letter dated 5 May 1999, demanded the full payment of the sum of $585,842,466.00 which had by that time become due, owing and payable.
The Bank alleges that on 8 May 1999, R.N. Persaud Company Limited fraudulently caused to be advertised in the Official Gazette, the sale, by way of transport, of property which formed part of the mortgaged assets situate in the County of Essequibo, to Leguan Rice Milling Incorporated, the Second Named Respondent. The Bank claimed that it did not become aware of the sale until after the time for opposition had elapsed. Prior to filing the Writ of Summons on 25 May 1999, the Bank applied, on 24 May 1999, for and was granted an interim injunction which was entered on 31 May 1999, restraining R.N. Persaud Company Limited from selling or disposing of the property and further restraining Leguan Rice Milling Incorporated from accepting Transport in relation to the said property and further restraining the Registrar of Deeds, the Third Named Respondent, or its officers from proceeding with the passing of Transport to Leguan Rice Milling Incorporated. The Order of the court was served on all the Respondents. Notwithstanding this judicial injunction, on the 25 June 1999, R.N. Persaud Company Limited purported to pass Transport of the said property which was accepted by Leguan Rice Milling Incorporated.
The Bank caused its Attorneys, on 8 July 1999, to file a Notice of Motion to have Mr. R.N. Persaud, Managing Director of the First Named Respondent, and Mr. Pooran Ram, Director/Secretary of the Second Named Respondent, committed to prison for contempt of court. By Affidavit dated 24 August 1999, Mr. Pooran Ram, answered the Motion on behalf of the Leguan Rice Milling Incorporated. The hearing was adjourned on several occasions during the period July 1999 — September 2000. During this period on 8 June 2000, an Affidavit of Service sworn to by Mr. Marshal Walcott was filed attesting to his service of the Writ of Summons, an ex parte Application for an interim injunction and a certified copy of the Order dated 24 May 1999 on Leguan Rice Milling Incorporated by handing the document to Mr. Pooran Ram. There were additional adjournments and on 28 May 2001, a Subpoena Duces Tecum was issued in the action for Mr Marshal Walcott to attend court to give evidence. Eventually, on 12 November 2001, leave was granted to the Bank to withdraw and discontinue the Motion. Six months later, on 23 May 2002, the Bank filed a Request for Hearing in its original application which, it will be recalled, had been initiated on 24 May 1999.
On 30 April 2012, a month shy of ten years from the date of the Bank's filing of the Request to be heard, R.N. Persaud Company Limited applied to the Court to have the Bank's claim dismissed for abandonment. The parties swore Affidavits in response and reply to the Summons and thereafter written submissions were filed. On 2 October 2014, Justice Gregory, sitting in the High Court, granted the relief sought and dismissed the action as abandoned.
The Bank alleged that the Order was not entered in the Court's records and was not served on the Bank or its counsel, who informed the Bank that he did not become aware of the decision and Order of Justice Gregory until in or around 13 October 2017, some three years afterwards. As a result, on 16 October 2017, the Bank appealed the decision of Justice Gregory to the Full Court as of right, even though it was three years after the decision in the High Court, on the basis that it did not become aware of the Order until on or around 13 October 2017.
During the hearing of the appeal by the Full Court (comprising Justices Singh and Younge) the First and Second Named Respondents referred to the Civil Proceedings Rules which provide that an appeal must be filed within 28 days from the date of a decision. They argued that the appeal was filed almost three years after the decision was pronounced, it had been filed out of time and the court had no jurisdiction to entertain it. The Bank opposed on the basis that it did not have knowledge of the decision and Order of the Court until October 2017. The Full Court heard arguments on the issue of jurisdiction and on 19 April 2018 dismissed the appeal on the sole ground that the Contempt proceedings initiated by the Appellant on 9 July 1999, were not interlocutory in nature but were free-standing and, as a consequence, did not interrupt the running of time for the purposes of abandonment, or prevent the action filed in May 1999 from becoming ripe for hearing after the Notice of Default of Defence was filed in the action on 16 November 1999. It is noteworthy that no written decision of the Full Court was given.
The Bank contended that this decision of the Full Court was erroneous in law and that dismissal of the action for abandonment represented a miscarriage of justice. The Bank appealed to the Court of Appeal and that court agreed to hear the application as the substantive appeal. During the hearing before it, the Court of Appeal enquired, whether the Full Court had entertained arguments and considered the issue of its jurisdiction to hear the appeal given the lapse of the near-three years between the decision of Justice Gregory, and the filing of the appeal. The Court was informed that the issue was, indeed, argued before the Full Court but notwithstanding being so informed, the Court of Appeal remitted the matter to the Full Court for a determination whether it had jurisdiction to entertain the appeal.
The Bank now appeals to this Court, arguing that the Court of Appeal did not determine the grounds of appeal advanced before it and did not pronounce on the merits of the decision by Justice Gregory which had also been appealed to the Full Court. The Bank contends that, after being informed that the Full Court had indeed heard arguments on the issue of jurisdiction, the Court of Appeal ought not to have remitted the matter to the Full Court to determine jurisdiction, especially since the Court of Appeal was also equally placed to determine the issue of jurisdiction. It also...
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