| |
JUDGMENT
[1] This is an Application for special leave to Appeal out of time to this
Court from a decision of the Court of Appeal of Guyana. The decision against
which it is sought to appeal, was given as long ago as the 30th June 2006.
That decision was on a procedural point. The Court of Appeal held, in
accordance with what was then a well established rule of practice in Guyana,
that the appeal which the Applicants had filed against the decision of a
Commissioner of Title could not be pursued because the attorney who was
acting for the Applicants had not filed an authorization by his client to
pursue the appeal on their behalf. As a result the appeal was dismissed
without a hearing on the merits.
[2] That decision was not challenged by an appeal to this Court within the
time prescribed. No doubt, that would have been the end of the proceedings
but for the fact that in March 2007 this Court gave judgment in the case of
Watson v Fernandes [2007] CCJ 1 (AJ). In that judgment, we held that the
practice that had been followed in Guyana of requiring a written
authorization of the attorney who was pursuing an appeal on an appellant's
behalf, was misconceived and that there was in fact no such requirement. It
was sufficient if the attorney who signed the notice of appeal and who
appeared at the hearing of the appeal, in fact had the authority of the
appellant to perform these services.
[3] Following that decision in Watson v Fernandes, the Applicants in these
proceedings made an application by motion on the 15th June 2007 to the Court
of Appeal, asking the Court of Appeal to review its earlier decision of the
30th June 2006 by which it had dismissed the Appellants' appeal on the
ground which I have mentioned. The Court of Appeal dismissed this motion and
quite rightly held that it had no power to cancel or reverse its own
decision. Unfortunately the dismissal of this application did not occur
until the 10th June 2008, nearly a year after it had been filed.
[4] Subsequently, the Applicants applied to this Court seeking leave to
appeal against the dismissal of their motion by the Court of Appeal. That
application was dismissed by us on the 7th November 2008. Indeed, it was in
the course of the hearing of that application that the Court indicated to
counsel that the proper course would have been for an application to have
been made to this Court for special leave to appeal against the decision of
the Court of Appeal dated the 30th June 2006. Apparently that gratuitous
piece of advice was taken to heart and as a result, this application has
been filed.
[5] We were careful however, when giving our reasons upon the dismissal of
the first application to us for special leave to appeal, to point out that
we were not intending to give any indication whatever that an application
for special leave to appeal against the Court of Appeal's decision would be
either successful or unsuccessful. We have now got to decide what its fate
should be. Ought we to grant leave at this stage to appeal against the
decision of the Court of Appeal of 30th June 2006 in order to permit the
Applicants to take advantage of the decision in Watson v Fernandes, and to
clear the way for the merits of their appeal to the Court of Appeal to be
argued and determined? I should have mentioned before that the substantive
appeal to the Court of Appeal was against the findings of a Commissioner of
Title who had rejected the Applicants' claim to have acquired by
prescription the right of ownership over a parcel of land in Guyana. It is
not necessary for me to describe those proceedings in any detail. That
appeal was based purely on challenges to findings of fact made by the
Commissioner who was not satisfied on the evidence that the Applicants had
established adverse possession of the land in question for the requisite
period.
[6] In deciding whether to grant special leave in this case a number of
factors have to be considered and weighed in the balance. The most
compelling factor in favour of the application is that as a result of a
wrong ruling on a procedural issue, the Applicants have been denied a
hearing of their appeal on its merits. On the debit side of the balance
however, there are a number of factors which also have to be considered.
[7] There is first of all, the fact that the Applicants did not avail
themselves, as the Appellant in Watson v Fernandes did, of the facility of
appealing to the Caribbean Court of Justice the decision of the Court of
Appeal to dismiss their appeal on the procedural ground. Admittedly, the
practice of requiring some formal written authorization of counsel who
appeared on an appeal, was a long and settled practice in Guyana. But
nevertheless, the possibility was open to the Applicants of challenging the
ruling of the Court of Appeal and they failed to do so.
[8] Secondly, after the decision in Watson v Fernandes, the Appellants took
the wrong procedure in setting about to upset the decision of the Court of
Appeal. Instead of applying for an extension of time for appealing to this
Court, they tried the hopeless expedient of getting the Court of Appeal to
reverse itself. When that failed, they compounded the error by seeking to
appeal that decision to this Court. The net result was that further time
elapsed between March 2007, when Watson was decided, and the filing of this
Application towards the end of 2008.
[9] Another important factor which weighs against granting this application
is the prejudice which the Respondents have suffered as a result of their
land being tied up and the transported owner being prevented from dealing
with it as he would have wished. The evidence with regard to the intention
of the transported owner in relation to the land is not altogether
satisfactory, but the evidence suggests that he lives abroad and that, but
for the pendency of these proceedings, he would have disposed of this piece
of land already, but is prevented from doing so because of the likelihood of
any further transport being opposed by the Applicants.
[10] Finally, there is the question of the Applicants' prospects of success
on the hearing of the merits of their appeal. As I have said, the appeal is
against findings of fact. Such appeals of course have certain inherent
difficulties to overcome, as a Court of Appeal is never prone to reverse
findings of fact by a trial judge. We have not investigated either the
judgment or the evidence in the proceedings before the Commissioner of Title
in sufficient depth to make any pronouncement as to the chances of success
or failure of the appeal. What we can say, however, is that there does not
appear to be any compelling reason to believe that the success of the appeal
is overwhelmingly likely. In other words, there is no basis for concluding
that if the appeal is not determined on the merits, there will be a
significant risk of a miscarriage of justice. Put another way, it does seem
to us that the appeal on the merits would be problematical.
[11] In all of these circumstances, we have a discretion to exercise because
the overriding objective of the Court is to pursue a course that will lead
to a just result.
[12] I have set out some of the factors which are relevant and in this case
the factors are fairly finely balanced. But in the end we have come to the
conclusion that it would be unfair to the Respondents, in the circumstances
I have outlined, to submit them to further delay in disposing of the land,
and further expense by extending these proceedings and giving special leave
to appeal to this Court.
[13] We have taken into account that there have been a number of
opportunities which the Applicants have failed to grasp to secure a reversal
of the decision of the Court of Appeal to strike out their appeal and to
obtain a hearing of their appeal on the merits. As a result of their failure
to take these opportunities there has been prejudice to the Respondents. We
do not consider that given the prospects of success which appear on the
material before us, we would be justified in putting a further burden of
delay and expense and uncertainty on the backs of the Respondents. In those
circumstances, our decision is that the application for special leave is
denied and the Applicants must pay the costs of this Application. The costs
to be taxed in default of agreement. |
|
