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JUDGMENT
[1] Our decision is as follows. The application to this Court for special
leave to appeal against the decision of the Court of Appeal, which was given
on 10th June, 2008, dismissing the applicants' motion, is dismissed, and the
applicants must pay the costs of that application. It also follows that the
application for leave to appeal as a poor person must also be dismissed,
again with costs. The reason for the dismissal of the application for
special leave to appeal is that we do not consider that the appeal which it
is sought to bring, is arguable.
[2] It is manifest that the Court of Appeal did not have jurisdiction to
reverse the decision it had earlier given in June 2006, dismissing the
appeal from the Land Commissioner on a preliminary point. The preliminary
point which was taken, was that the attorney who signed the notice of appeal
from the Commissioner's decision on the petition for a declaration of
ownership filed by the applicants, was not properly authorized. At the time
the law in Guyana was thought to be that for an attorney to have authority
to sign a notice of appeal and to appear in the Court of Appeal for the
appellant, it was necessary for his client to have given him an
authorization in writing which had to be filed in the High Court. In the
case of Watson v Fernandes[FN1], however, this Court in a judgment which was
delivered on the 19th March, 2007, held that that was a mistaken view of the
law and that there were no formalities attached to the giving of authority
by a party to an attorney for the purpose of filing an appeal.
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[FN1] [2007] CCJ 1 (AJ)
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[3] Of course that decision was made in a case in which what was considered
to be established law in Guyana with regard to the formalities required for
authorizing counsel to represent a party in an appeal, was applied by the
Court of Appeal. Some three months after our decision in Watson v Fernandes[FN2],
that is, on the 15th June, 2007, the applicants filed their motion in the
Court of Appeal seeking to have the Court of Appeal reverse the decision
which it had earlier made dismissing their appeal on the basis of the
preliminary objection.
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[FN2] supra
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[4] We have heard counsel's submissions to the effect that the Court of
Appeal had the power to accede to that application and to reverse, in effect,
its own decision and reinstate the appeal which it had dismissed. But the
authorities which were cited in support of that submission in fact, in our
view, tended rather to negate it.
[5] There were two cases in particular that were relied upon. The most
apposite was the case of Arnold v Westminster Bank[FN3] which dealt with the
question whether the rule of res judicata estoppel is an absolute one, or is
subject to exceptions. Without going into the facts of that case in any
depth, it is clearly distinguishable from the instant case. In the course of
the judgment delivered in that case, it was made clear that the usual course
to be adopted in order to challenge a decision which is subsequently shown
to have been wrong in law, is by way of an appeal rather than by resort to
the court which made the decision. It was held that there may be exceptional
circumstances which would permit a court to decide a point in issue
differently from the way in which it had decided it previously between the
same parties.
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[FN3] [1991] 3 All E.R 41
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[6] In that case the same court which had in earlier proceedings decided a
point wrongly, was held entitled to correct its error and to decide the same
point differently in subsequent proceedings between the same parties who
were in a continuing legal relationship (lessor and lessee). That is a
rather different case from the present one. There are certainly no
exceptional circumstances in the instant case which would justify the Court
of Appeal assuming and exercising a highly unusual jurisdiction to reverse
itself on an issue which it had already decided, not only between the same
parties but in the same proceedings.
[7] The other case which was cited, In Repayment of Compensation to Civil
Servants under Article 10 of an agreement for a Treaty between Great Britain
and Ireland[FN4], was one in which the Privy Council held that it was
subject to "no inherent incompetency" in relation to the reversal of its own
decision, and that it did have the power in exceptional circumstances to
review and alter its own decision, even in the context of the same case. But
that jurisdiction was enjoyed by the Privy Council because it was a final
court. There is no basis in logic or in authority for attributing the same
facility to an intermediate court such as the Guyana Court of Appeal.
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[FN4] [1929] AC 242
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[8] So that, having considered the authorities which were cited to us, we
are satisfied that the Court of Appeal lacked the power to do that which the
applicants were asking it to do by their motion, and therefore the Court of
Appeal was right to refuse the application and dismiss the motion.
[9] In those circumstances, there is absolutely no reason to even consider
granting special leave to appeal. In the course of counsel's submissions to
us, we did indicate to him that the better course might have been for the
applicants to have sought to challenge the 2006 decision of the Court of
Appeal by applying to this Court for special leave to appeal against that
decision and for an extension of time for doing so.
[10] We want to make it clear that we are giving no indication that such an
application would have been successful. But certainly, it would have had the
advantage at any rate of invoking a jurisdiction which this Court certainly
has rather than invoking in the Court of Appeal a jurisdiction which that
court lacked. The question of an amendment of the application before us was
mooted. In fairness to counsel, it is true to say that the suggestion of
such an amendment came from the bench, but it soon became apparent that the
amendment required was so fundamental that it would be better to leave the
matter to be raised, if it was to be raised at all at this stage, by a fresh
application rather than by way of an amendment.
[11] This matter has been pending, in the sense that the dismissal of the
applicants' appeal has been under challenge, since June 2007. We have now
resolved that challenge against the applicants and it would obviously be
more difficult for them to justify now a fresh challenge by the alternative
route which I have indicated. But again, it is not for us to predict whether
or not such an application, if made at this stage, would be entertained. We
wish to emphasize that nothing we have said, either in this judgment or in
the course of argument, should be taken as an indication either that we
would, or that we would not, be prepared to entertain an application at this
stage along the lines that I have indicated.
[12] So I would simply repeat that the application before us is dismissed
with costs. There is no grant of leave to amend in order to transform the
application into one for special leave to appeal against the 2006 decision.
Consequently the application to appeal as a poor person is also dismissed
with costs.
[13] The total costs awarded in respect of both applications are agreed at
$200,000 Guyana dollars. |
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