Narine (called Mohan) v Persaud
| Jurisdiction | Caribbean States |
| Judge | Nelson, JCCJ |
| Judgment Date | 10 October 2012 |
| Court | Caribbean Court of Justice |
| Docket Number | CCJ Application AL 4 of 2012; GY Civil Appeal 61 of 2011 |
| Date | 10 October 2012 |
Caribbean Court of Justice
Nelson, J. CCJ; Bernard, J. CCJ; Wit, J. CCJ; Hayton, J. CCJ
CCJ Application AL 4 of 2012; GY Civil Appeal 61 of 2011
Mr Basil Williams for the applicant
Mrs Prabha Persaud-Kissoon for the respondent
Civil practice and procedure - Appeal — Extension of time for leave to appeal.
The respondent obtained an order of the High Court for the payment by the applicant of the purchase price of a Toyota Land Cruiser sold to him at Lethem, near the Brazilian border with Guyana. The applicant unsuccessfully sought leave to have the time extended for appealing that order. The Court of Appeal of Guyana rejected two such applications. His first application was rejected by a single judge of the Court of Appeal; his renewed application was rejected on December 12, 2011 by a panel of three judges. The applicant wished to challenge the Court of Appeal's second denial of an extension of time before the Caribbean Court of Justice (“the CCJ”). For that purpose, the applicant sought leave of the Court of Appeal to appeal to the CCJ both under sections 6(a) and 7 of the CCJ Act. The Court of Appeal refused that leave on May 17, 2012. The applicant then sought to challenge the Court of Appeal's denial of access to the CCJ, and if successful, to appeal the decision of the Court of Appeal on December 12, 2011 refusing an extension of time to appeal.
Where an intended appellant is refused leave to appeal to the CCJ, and that intended appellant subsequently makes an application for access to the CCJ in order to appeal, that application is not an appeal but a fresh application. The CCJ treated the applicant's application as a special leave application pursuant to section 8 of the CCJ Act, and also treated the hearing of the application as the hearing of an appeal against the decision of the Court of Appeal on December 12, 2011.
The CCJ reiterated that it would grant access to an applicant for special leave if there was an egregious error of law or a substantial miscarriage of justice in the Court of Appeal. In the present case, the Court of Appeal in refusing the extension of time erroneously considered that as long as there was inordinate delay, the merits of a possible appeal were irrelevant.
An examination of the merits, however, would have revealed two substantial areas of likely miscarriage of justice. There was an apparent discrepancy in the sum for which judgment was taken up ($5.7 million) and the amount stated in the judge's notes of judgment ($5 million), which revealed that a claim for repairs in the sum of $700,000 had not been established. Secondly, there was an issue of illegality resulting from the provision in the oral sale agreement for the use of the existing title and insurance documents after the change of ownership and the respondent's plea that the Guyana Revenue Authority had confiscated the vehicle as uncustomed goods smuggled into Guyana from Brazil.
The CCJ therefore not only granted the special leave application for access to it but also the appeal against the refusal of an extension of time to appeal against the order of the High Court.
Although the application before the CCJ was not an appeal, the CCJ considered the reasons offered by the Court of Appeal for not granting leave to appeal to the CCJ. A differently constituted Court of Appeal relied on Lane v. Esdaile [1891] A.C. 201 (H.L.) in denying access to the CCJ. In that case, it was held that where an appeal from the High Court to the Court of Appeal lay only with leave of the Court of Appeal, the refusal of leave to appeal by the Court of Appeal was not appealable. Since no appeal lay to a higher court, the refusal of leave to extend the time for appealing the judgment of the High Court was final, and therefore the Court of Appeal had no jurisdiction to grant leave to appeal to the CCJ under section 6(a) or 7 of the CCJ Act, as the respondent contended.
The CCJ held, however, that its powers on an application under section 8 of the CCJ Act were in broad terms analogous to the powers of the Judicial Committee under the Judicial Committee Acts 1833 and 1844. Thus, even if a decision of the Court of Appeal could not be appealed under section 6(a) or 7 of the CCJ Act, the CCJ could still permit access to the Court to correct an egregious error of law or to remedy a substantial miscarriage of justice.
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• 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.
November 26, 2012
By an application dated May 30, 2012, Kampta Narine, also called Mohan (hereinafter called “the applicant”), purports to seek special leave of this Court to appeal against the refusal on May 17, 2012 of the Court of Appeal (Acting Chancellor Singh, Cummings-Edwards, J.A. and Bovell-Drakes, Additional Judge) to grant him leave to appeal to this Court.
The applicant had by a summons dated July 19, 2011 sought from Roy, J.A., a single justice of appeal, an extension of time for appealing against a judgment of Rishi Persaud, J. dated February 18, 2011. Roy, J.A. dismissed the summons, but the applicant made a fresh application by motion to a three-judge panel of the Court of Appeal for an extension of time to file an appeal. The court, surprisingly presided over by Roy, J.A., again dismissed the application. Roy, J.A. detailed his reasons in a judgment delivered on December 12, 2011.
Gupraj Persaud (hereinafter called “the respondent”), filed a specially indorsed writ of summons dated July 15, 2009 in which he claimed $5,700,000, interest and costs from the applicant, the Defendant on that writ.
The respondent pleaded that in November 2008, at Lethem, the applicant sold and delivered to the respondent one Toyota Land Cruiser (1994) registered as PHH 8147 for the sum of $5,000,000.
The respondent alleged that he paid that sum and took possession of the vehicle, agreeing to take delivery in Georgetown, within a month of the transaction, of a new certificate of ownership in the respondent's wife's name, to wit, a Certificate of Registration, insurance documents (presumably in the name of the new owner), a certificate of fitness and a road licence.
The respondent alleged that shortly after the sale, the vehicle developed engine problems and he expended $700,000 to effect the necessary repairs.
Eventually in January 2009, the applicant delivered the vehicle documentation promised, but in May 2009 when the respondent went to purchase a current road licence at the Licensing Department of the Guyana Revenue Authority “he was informed that the said Certificate of Registration was a forgery and that import duties and taxes were never paid in respect of the said vehicle and that the same was smuggled into Guyana.” The vehicle, he pleaded, was confiscated by the Guyana...
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