James Ramsahoye v Linden Mining Enterprises and Bauxite Industry Development Company Ltd; James Ramsahoye v National Industrial and Commercial Investments Ltd

• Jurisdiction: Caribbean States
• Judge: Burgess, J.CCJ.
• Judgment Date: 23 May 2019
• Neutral Citation: [2019] CCJ 07 AJ
• Docket Number: CCJ Application No GYCV2018/008; GYCA No 61 of 2001 and GYCA No 59 of 2009
• Court: Caribbean Court of Justice (Appellate Jurisdiction)
• Date: 23 May 2019

Caribbean Court of Justice

Hayton, J.CCJ.; Anderson, J.CCJ.; Rajnauth-Lee, J.CCJ.; Burgess, J.CCJ.

CCJ Application No GYCV2018/008; GYCA No 61 of 2001 and GYCA No 59 of 2009

James Ramsahoye

and

Linden Mining Enterprises and Bauxite Industry Development Company Limited

James Ramsahoye

and

National Industrial and Commercial Investments Limited

Appearances

Mr. Chandrapratesh Satram, Mr Roopnarine Satram and Mr Ron Motilall for the Applicant.

Mr. Timothy Jonas, Mr Dennis Paul and Ms Sandia Ramnarine for the Respondents.

Civil practice and procedure — Appeal — Application for special leave to appeal — Whether there was a realistic prospect of success — Whether there was an egregious error of law or miscarriage of justice — Order — Variation or discharge of an order of a single judge in chambers.

JUDGMENT SUMMARY

1 The Applicant, Mr. James Ramsahoye (“Mr. Ramsahoye”) sought special leave to appeal a decision of the Guyana Court of Appeal pursuant to section 8 of the Guyana Caribbean Court of Justice Act, Cap 3:07 (“Cap 3:07”). That decision of the Court of Appeal discharged orders made by Roy, J.A. sitting as a single judge of the Court of Appeal in an effort to secure the enforcement of an order of the Court of Appeal made on 3 March 2004, that the Respondents pay a lump sum and a monthly pension to Mr. Ramsahoye. The basis of the Court of Appeal's decision to discharge the orders of Roy, J.A. was that Roy, J.A. had no jurisdiction under Rule 16(1) of the Court of Appeal Rules, Cap 3:01 (“Cap 3:01”) to make such orders. Mr. Ramsahoye also requested that the application for special leave, if granted be treated as the hearing of the appeal.

2 Mr. Ramsahoye had been employed by the Respondents, Linden Mining Enterprise Ltd. (LME) and Bauxite Industrial Development Co. Ltd. (BIDCO), two state owned corporations, in the nationalized bauxite industry, when in 1998 after 26 years of service his employment was terminated. As a result, he commenced proceedings in the High Court for breach of contract but the action was dismissed and so he appealed. The Court of Appeal delivered a judgment allowing the appeal and awarded Mr. Ramsahoye damages in the amount of US$174,032.49 for breach of contract. He was also awarded a pension in the amount of US$2,000.72 per month with effect from 1 July 1998.

3 While these proceedings were pending in the Court of Appeal against LME and BIDCO, the assets of BIDCO were transferred to National Industrial and Commercial Investments Ltd (NICIL), a company wholly owned by the Government of Guyana, by Order 45 of 2003 made under the Public Corporation Act, 1988. After the Court of Appeal's judgment of 3 March 2004, there were multiple proceedings between the parties aimed at either preventing payment of or enforcing that judgment leading up to the filing of the appeal before the Court of Appeal against the orders made by Roy, J.A. in Chambers to “enforce the judgment of the Court of Appeal of the 3rd March 2004”. The Court of Appeal, discharging the orders, relied on an earlier decision, Commissioner General (Guyana Revenue Authority) et al v. Caribbean Chemicals (Guyana) Ltd., Civil Appeal No. 112 of 2006 which held that the powers of a single Justice of Appeal sitting in Chambers are limited to the interlocutory applications prescribed under Order 2, rule 16(1) of the Court of Appeal Rules, Cap 3:01 and, accordingly, concluded that Roy JA's enforcement orders were made in excess of jurisdiction.

4 The CCJ examined the special leave application and found that the central issue for determination, was whether special leave should be granted. The Court however, first addressed an in limine objection raised by Counsel for the Respondents, Mr. Jonas who contended that Mr. Ramsahoye's application for special leave under section 8 of Cap 3:07 was filed out of time. The Court noted that Mr. Jonas' argument was premised on the fact that the Court of Appeal had correctly refused to grant Mr. Ramsahoye leave as of right under section 6 of Cap 3:07. Mr. Jonas argued that, because Mr. Ramsahoye's application was brought under section 6 of Cap 3:07 and was correctly refused by the Court of Appeal, then, by operation of Rule 10.12 of the Caribbean Court of Justice Appellate Jurisdiction Rules, 2017 (“CCJ Rules”), Mr. Ramsahoye had 42 days from the date of the decision of the Court of Appeal discharging the orders of Roy, J.A. to make his application for leave and not 21 days after the Court of Appeal's refusal of his application for leave to appeal to this Court, and so Mr. Ramsahoye's application to the Court was out of time.

5 The CCJ rejected Mr. Jonas' contention and found that the language of Rule 10.12 was unabashedly clear and did not admit any interpretation other than that the Rule contemplates two-time frames within which applications for special leave to the Court may be made. These are (i) where the application is made directly to the Court from a judgment of the court below, within 42 days of the judgment of that court being appealed; and (ii) where the application is made after leave to this Court is refused or rescinded by the court below, within 21 days of such refusal or rescission of that court. Nothing on the plain words of the Rule suggests that the 21 days' time-frame for leave hinges on the correctness of the refusal of the Court. Once a rescission or refusal has occurred, then the applicant has 21 days from that refusal within which to approach this Court under section 8, “which does not receive its vires from section 8 of the Act.” The Court also rejected the argument on the basis that, in spite of compelling authority from the Court's jurisprudence, Mr. Jonas had failed to present an interpretative pathway to reconciling his argument with the established jurisprudence. Consequently, Mr. Jonas' in limine objection failed.

6 In considering the issue of special leave the Court noted that in in Barbados Rediffusion v. Asha Merchandani (No. 1) [2005] CCJ 1 (AJ), de la Bastide, P.CCJ. had adopted a two-stage approach to the question of whether special leave should be granted or refused. The first was to ascertain the circumstances in which the application for special leave was made and the second, was to determine whether there was some special feature of the case which would warrant this Court giving special leave to appeal to it. In determining whether there was some special feature, the Court may articulate the test to be applied in making such a determination. In the case before de la Bastide, P.CCJ., the test of whether there had been either an “egregious” error of law or a substantial miscarriage of justice was applied. The Court noted that subsequent to Barbados Rediffusion, the two-stage approach was consistently applied and depending on the circumstances of an application for special leave, differing tests were used to guide the Court in granting or refusing special leave. For instance, in Weel v. AG of Barbados and The Dental Council, special leave was sought in circumstances where leave was granted by the court below but was rescinded by that court because the applicant did not comply with the conditions imposed for such leave. In those circumstances, the applicant had to satisfy the Court that there was merit in the appeal. Similarly, in Barbados Turf Club v. Melnyk [2011] CCJ 14 (AJ), where the application for special leave was made directly under section 8 of the CCJ Act, it was held that the test which the Court would apply in granting special leave is whether the applicant has shown that the application has a real prospect of success. This test was affirmed in Systems Sales Ltd. v. Browne-Oxley [2014] CCJ 16 (AJ).

7 The Court found that the decision of Mohan v. Persaud [2012] CCJ 8 (AJ), [12] was particularly important in the case at bar as it concerned an application for special leave where the court below had refused leave to appeal to this Court. In that case, it had been found that in those circumstances the practice of the Court has been that it will grant special leave if there has been either an “egregious error of law or a substantial miscarriage of justice”. When this principle is applied to the case, Mr. Ramsahoye had to demonstrate there has been either an egregious error of law or a substantial miscarriage of justice for him to be granted leave. Accordingly, the Court considered whether the Court of Appeal made an egregious error of law in interpreting the scope of the powers of a single Justice of Appeal sitting in Chambers pursuant to Order 2, rule 16(1).

8 The Court found that Order 2, rule 16(1) had its genesis in Rule 69 of the Supreme Court of Judicature Act, 1925 England & Wales and was a reproduction of that provision, with necessary modifications. That provision had been identically reproduced in Order II, rule 16 of the Court of Appeal Rules of Belize, Chap 90. Similar provisions also existed in Order 59, rule 20 of the Supreme Court Rules, 1975 of Trinidad and Tobago and in Rule 33(1) of the Jamaica Court of Appeal Rules, 1962. In these three jurisdictions, the Courts of Appeal, in interpreting the provisions have held that the power of a single Judge is constrained by the Rule to making the orders enumerated from (a) — (e) and other interlocutory applications. This approach was consistent with the view taken by the Court of Appeal of Guyana in Narine et al v. National Bank of Industry and Commerce Ltd. Civ. Appeal No. 75 of 2001, which the Court of Appeal had also relied on when discharging Roy, J.A.'s Orders on the basis that he had exceeded his jurisdiction. Consequently, the CCJ held that the authorities showed that the general words “other interlocutory application” in Order 2, rule 16(1) must be construed narrowly and as limited to only those interlocutory applications of the type expressly listed in Order 2, rule 16(1).

9 Next, the Court considered whether the orders...