L.O.P. Investments Ltd Demerara Bank Ltd, Ward and Gaskin

JurisdictionCaribbean States
JudgeDe La Bastide, P.
Judgment Date01 May 2009
CourtCaribbean Court of Justice
Docket NumberCCJ Application No. AL 2 of 2008; GY Civil Appeal No. 27 of 2006
Date01 May 2009

Caribbean Court of Justice

de la Bastide, P.; Nelson, J.A.; Pollard, J.A.; Bernard, J.A.; Wit, J.A.;

CCJ Application No. AL 2 of 2008; GY Civil Appeal No. 27 of 2006

L.O.P. Investments Limited Demerara Bank Limited, Ward and Gaskin
Appearances:

Mr. Sanjeev Datadin for the appellant.

Mr. Vidyanand Persaud and Mr. Parmanand Mohanlall for the 1st and 2nd respondents.

Civil practice and procedure - Appeal — Application for special leave to appeal to the Caribbean Court of Justice — Whether there was a genuinely disputable issue.

THE APPLICATION
De La Bastide, P.
1

This was an application for special leave to appeal to the Caribbean Court of Justice from a judgment of the Court of Appeal of Guyana (Ramson, Roy and Cummings-Edwards, JJ.A.) which dismissed the applicant's appeal from a decision of Moore, J. On the 24th November, 2008, after a hearing conducted by means of a teleconference, we granted the applicant special leave to appeal the Court of Appeal's decision on the condition that the applicant provide security for the respondents' costs in the sum of GY$1,000,000 by a deposit of cash, within 14 days. What follows is the written reasons for our decision.

THE BACKGROUND
2

At the centre of the factual background to this case are two debentures issued by the applicant in favour of the respondent bank to secure advances by the respondent bank to the applicant totaling GY$100 million. The applicant defaulted in repayment of the moneys lent and the respondent bank in exercise of the power in that belief conferred on it by the debentures, appointed first the second respondent, and then when he withdrew, the third respondent, to be receiver of the applicant's assets (which consisted mainly of a rice mill). These proceedings were initiated by a writ filed by the applicant on the 9th September, 2005, challenging the validity of the appointment of the receivers and the lawfulness of the actions taken by the third respondent in pursuance of his appointment. In that action the applicant claimed declaratory and injunctive relief as well as damages. The respondent bank countered by filing a writ of its own on the 3rd November, 2005, by which it complained of the allegedly unlawful interference by the applicant in the conduct of the receivership and sought an injunction and damages. These two actions were by consent consolidated.

3

Moore, J. gave judgment for the respondents and ordered the applicant to pay damages to the third respondent in the sum of GY$350,000 and costs to the respondents in the sum of GY$300,000. As already stated, the applicant's appeal to the Court of Appeal was dismissed. In a judgment delivered by Ramson, J.A. the objections of the applicant to the validity of the debentures and the appointment of the receivers were treated as manifestly unsound but there was no reasoned refutation of them.

4

The applicant then applied to the Court of Appeal for leave to appeal to this Court on two grounds. The first was that an appeal lay as of right under section 6(a) of the Caribbean Court of Justice Act (“the CCJ Act”) as the matter in dispute was of the value of more than GY$1,000,000 or the appeal involved a claim or question respecting property of equivalent value. Secondly, it was contended that the question involved in the appeal was one that by reason of its great general or public importance or otherwise, ought to be submitted to this Court pursuant to section 7(a) of the CCJ Act.

THE JUDGMENT OF THE COURT OF APPEAL
5

In a judgment delivered by Ramson, J.A., the Court of Appeal (Ramson, Roy and Cummings-Edwards, JJ.A.) refused leave to appeal on the ground that the appeal did not raise a genuinely disputable issue of law or fact. We hold that this decision was wrong for two reasons. Firstly, the Court of Appeal having found that the case fell within the ambit of section 6(a) of the CCJ Act since the value of the property in dispute was more than GY$1million, the applicant was entitled to appeal to this Court as of right and the Court of Appeal was not entitled to refuse leave to appeal on the ground that the applicant's case was so weak that it could not be said to raise any issue of law or fact that was “genuinely disputable”. Secondly, although the issue did not properly arise, we do not share the Court of Appeal's view that it is “overwhelmingly obvious” that the applicant's case must be rejected.

6

Mr. Justice Ramson took exception to the description of the Court of Appeal's function in determining claims to appeal as of right under section 6 of CCJ Act as a ‘gate-keeping’ exercise. We do not consider that this metaphor has a pejorative connotation or that its use diminishes the Court of Appeal in any way. Sub-paragraphs (a) to (d) of section 6 provide access to this Court for would-be appellants and the Court of Appeal has the responsibility when dealing with applications for leave to appeal, of ensuring that no one who does not properly qualify, takes advantage of these means of access. It is not the only function which the Court of Appeal performs in relation to such applications. The Court of Appeal also hears and determines applications for leave to appeal as a poor person and fixes the amount of security (if any) to be provided by the applicant and the form in which, and the time within which, such security is to be provided: see in this connection Rules 10.6(2), 10.7 and 10.17 of the Caribbean Court of Justice (Appellate Jurisdiction) Rules as amended.

7

The Court of Appeal adverted to the possibility that an application for leave to appeal (even where there was an appeal as of right) might be refused if the application constituted an abuse of the process of the court. The Court of Appeal, however, correctly recognised that it was only in exceptional cases that such a course would be justified and that the apparent hopelessness of the proposed appeal would not provide such justification. In any event the Court of Appeal did not seek to justify its refusal of leave on the ground that the application for leave constituted an abuse of process. We consider that it was right not to have done so.

“DISPUTABLE ISSUE”
8

We turn now to explain why the concept of a genuinely disputable issue had no relevance in the instant case and following that we will identify what we conceive in any event to be a ‘genuinely disputable’ issue of law raised by the applicant.

9

It was common ground that this case fell within the ambit of section 6(a) of the CCJ Act and that the applicant was therefore entitled to appeal as of right to this Court. This was accepted by the Court of Appeal and was expressly conceded before us by counsel for the respondents. In those circumstances we hold that the Court of Appeal was wrong to believe that it had a residual discretion to refuse leave to appeal on the ground that in its view the applicant's case did not raise a ‘genuinely disputable issue’ of fact or law.

10

The Court of Appeal in support of its decision to refuse leave cited a passage from the judgment delivered by Mr. Justice Nelson in Griffith v. The Guyana Revenue Authority [2006] CCJ 2 (AJ) in which the expression “genuinely disputable issue” is to be found. It is important, however, to put this expression in context by quoting the whole of the relevant paragraph in Mr. Justice Nelson's judgment. It reads as follows:

  • “[19] Even where the local statute or the Constitution (as the case may be) grants an appeal “as of right”, leave must still be obtained from the local court from which the appeal lies: see rule 10.2(a) of the CCJ Rules, which have the force of law in Guyana. The local Court of Appeal must then form a view as to whether “the proposed appeal raises a genuinely disputable issue in the prescribed category of case”: see per Lord Nicholls in Alleyne-Forte v. Attorney-General [1997] 4 L.R.C. 338, 343; (1997) 52 W.I.R. 480, 486E. However, this is little more than a gate-keeping exercise since the appeal is as of right. There is no discretion in the court of appeal to withhold leave in an as-of-right case on the ground that the appeal lacks merit: see Lopes v. Chettiar [1968] A.C. 887 (PC). Similarly, where the appeal is as of right the local Court of Appeal may not in its inherent jurisdiction impose terms and conditions not contained in the legislative instrument granting the right of appeal: see Crawford...

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