Jagessar et Al v Jagessar et Al

• Jurisdiction: Caribbean States
• Judge: Archer, C.J.
• Judgment Date: 18 September 1959
• Court: Federal Supreme Court (West Indies)
• Docket Number: Appellate Jurisdiction (Civil) No. 13 of 1959
• Date: 18 September 1959

Federal Supreme Court

Archer, C.J., Wylie, J.A.; Lewis JJ.A.

Appellate Jurisdiction (Civil) No. 13 of 1959

Jagessar et al

and

Jagessar et al

APPEARANCES:

Sir Courtenay Hannays, Q.C. and Mr. E. Hamel Wells, of counsel, instructed by Messrs: FitzWilliam, Stone and Alcazar, Solicitors, for the applicants.

Mr. H.O.B. Wooding, Q.C. and Mr. Bruce Procope, of counsel instructed by Mr. J.A. Le Blanc Solicitor for the respondents.’

Practice and Procedure - Appeal — Application for extension of time — Good and substantial reason

Jurisdiction - Federal Supreme Court — Whether Federal Supreme Court has jurisdiction to grant leave to appeal directly to Privy Council

Facts: Application made by summons for an enlargement of time within which to appeal from a determination of the Supreme Court. Application refused with costs. Applicants appealed. Filed notice of motion for an order that the order refusing their application be discharged and an order granting the application substituted therefore

Facts: Application made by summons for an enlargement of time within which to appeal from a determination of the Supreme Court. Application refused with costs. Applicants appealed. Filed notice of motion for leave to Her Majesty in Council to be granted

Held: Provision of order II Rule 3 (3) of the Federal Supreme Court, (Appeal Rules 1958) are preemptory and the power to enlarge restricted. Applicant must show good and substantial reasons. Applicants' affidavit disclosed no good and substantial grounds for enlargement of time to appeal. The mistake of a party's legal advisers does not constitute “good and substantial” reason for granting an enlargement of time to appeal. Motion dismissed with costs.

Held: Article 88 (1) of the constitution of the West Indies provides that there shall be no right of appeal direct to Her Majesty in council from a determination of a Supreme Court of a Territory except with the leave of the Federal Court, which shall be granted only in such circumstances as the Federal Legislature may by law prescribe. No such legislation has been enacted. Court therefore has no power to grant leave to the applicants to proceed directly to the Privy Council. Motion dismissed with costs.

Archer, C.J.

1 These are two motions by means of which the applicants seek an enlargement of time within which to appeal from a determination of the Supreme Court of Trinidad and Tobago. On the 8th May, 1959, a Full Court of that Supreme Court gave judgment in a matter which had originated in chambers before a judge of' the Court and had come before the Full Court upon appeal from his decision. The question dealt with in both courts was whether or not oil royalties under a mining lease originally payable to the owner of certain land should be apportioned between the several reversioners to whom the land had subse- quently been sold.

2 the 18th July, 1959, the applicants took out a summons in this Court for an enlargement of time within which to appeal against the decision of the Full Court. Their solicitor, in an affidavit in support of the summons, deposed–

• (a) that the applicants applied for a certified copy of the Judgment of the full court immediately after the day on which judgment was given but that owing to shortage of staff there was delay in obtaining it and a photocopy had eventually, after a lapse of about two weeks, to be taken by their solicitors;

• (b) that by that time senior counsel for the applicants was out of the colony temporarily, and junior counsel permanently, and that it was not until the 8th June, 1959, that senior counsel's advice as to whether or not an, appeal should be brought could be obtained;

• (c) that that advice when received was to the effect that the applicants should seek leave to appeal to Her Majesty in Council and that it was communicated by the solicitor then in charge of the matter by letter of the 9th June, 1959, to the applicants;

• (d) that the applicants attended on the solicitor shortly thereafter and said that they wished to consider the matter further before deciding whether to appeal or not;

• (e) that, the solicitor requested the applicants to give their decision as soon as possible but that he did not fix a time limit;

• (f) that the deponents attention was on the 29th June 1959, directed to the provisions of Article 88 (1.) of the Constitution of the West Indies whereupon he took immediate steps to obtain a decision from the applicants;

• (g) that on the 9th July, 1959, the applicants instructed him to take the necessary steps to appeal as advised by counsel;

• (h) that the applicants had nevertheless now decided that in view of the procedural difficulties involved in any attempt to appeal direct to Her Majesty in Council they wished only to appeal to the Federal Supreme Court.”

3 There was no judge of this Court in the Territory when the applicants took out their summons and they made the summons returnable before a judge of the Supreme Court of Trinidad and Tobago. On the 23rd July, 1959, the parties attended before a judge of that court. The judge declined jurisdiction and refused with costs the application made. The applicants then filed a notice of motion on the 29th July, 1959, for an order that–

• (i) the order of the 23rd July, 1959, whereby their application for an enlargement of- time was refused, be discharged, and an order granting the application substituted therefore; or

• (ii) the application for an enlargement of time be heard and determined; or

• (iii) leave to appeal to Her Majesty in Council be granted.

4 In paragraph 7 of a supplemental affidavit the solicitor for the applicants said: “In view of the procedural difficulties which have arisen in prosecuting the proposed appeal to this Honourable Court, my clients have decided, and counsel has advised, that in the event of this Honourable Court finding itself unable to grant the relief firstly or secondly applied for in the notice of motion filed herein dated the 29th day of July, 1959, that this Honourable Court should be requested in the alternative to grant leave to appeal to Her Majesty in Council under Article 88 of the annexe to the West Indian (Federation) Order in Council, 1959, so that if the defendants-appellants are precluded from prosecuting an appeal to this Honourable Court they may proceed to appeal direct to Her Majesty in Council”.

5 On the 14th August, 1959, the applicants filed another notice of motion in this Court. This latter application was for an order granting leave to the applicants to appeal to this Court against the decision of the Full Court of Trinidad and Tobago and for an enlargement of time within which to make the application.

6 The two motions came on for hearing together on the 20th August, 1959. Sir Courtenay Hannays, Q.C., senior counsel for the applicants, submitted that the Judge of the Supreme Court of Trinidad and Tobago before whom the parties had appeared on the 23rd July, 1959, had been in error in declining jurisdiction on the summons. He referred to Order II, rules 16 and 17 of the Federal Supreme Court (Appeal) Rules, 1958, and said that the application itself was a matter pending before the Federal Supreme Court and the judge was authorised by these rules to deputise for the Federal Supreme Court in the circumstances. Counsel submitted further, and in the alternative, that the summons had been taken out in time but that it had never been disposed of and was still before this Court. He said the delay in bringing the appeal was due to mistake on the part of the applicant's legal advisers and the Court should follow Gatti v. Shoosmith (1939) 3 A.E.R 916 and enlarge time. He did not concede that leave to appeal was necessary but he nevertheless asked for it if the Court considered it to be necessary and for an enlargement of time to enable it to be granted. He also asked that the summons amended to include an application for leave to appeal and by the substitution of the Federal Supreme Court for a judge of the Supreme Court of Trinidad and Tobago. He did not make an application for leave to appeal to Her Majesty in Council but junior counsel replying for the applicants, did so. Counsel for the respondents pointed out that in the second notice of motion the applicants did not ask for an amendment of the summons. He argued that Order II, rules 16 and 17 did not give jurisdiction either to the Federal Supreme Court or to a judge of the Supreme Court of Trinidad and Tobago in the circumstances of this case because no cause or matter was pending before this court when the application to enlarge the time was made. He argued further that even if the summons were amended, the application which the applicants had sought to make did not fall to be heard until after the expiration of one month from the last day for appealing. He contended that an application by summons for extension of time is made on the day of the return of the summons, in this case the 23rd July, 1959, and that by that date the power to enlarge time had already been spent. He submitted that the discretion of this court to extend the time for appealing was fettered in a manner similar to that which bound the Court of Appeal before there was an alteration in the wording of Order 58, rule 15 of the Rules of the Supreme Court, 1883, which omitted the former reference to special leave, that the reason for the delay in making the application had nothing to do with the applicants' legal advisers, and that the applicants had not shown good and substantial reasons for their application, as required by the Order II, rule 3 (3). Finally, he said that the order which was the subject matter of the proposed appeal fell within the purview of Regulation 15 (2) (f) of the Federal Supreme Court Regulations, 1958, and leave to appeal was not necessary because a question of law was involved. His alternative submission with respect to the category in...