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INTRODUCTION
[1] On 4th October, 2010 we heard and determined by audio conference
applications in this matter for special leave to appeal and for leave to
appeal as a poor person. So as to save costs, we had previously indicated to
the parties that they should deploy both their oral and written submissions
in a way that would permit us, without more, to render a decision on the
appeal itself if indeed we were persuaded that special leave to appeal
should be granted.
[2] We decided then that special leave to appeal should be granted but that
leave to appeal as a poor person should be denied. Because of our reluctance
to dispose of an appeal without giving the parties the opportunity of having
their respective cases presented by attorneys physically present in court,
we fixed the 14th October, 2010 for determination of the substantive appeal
at the Seat of the Court. We made it clear to the parties that while they
were entitled to avail themselves of the opportunity to be present we
neither required nor expected their presence when we sat to determine the
substantive appeal and in fact neither side made any further submissions at
that sitting. Having considered all the submissions made earlier on 4th
October, 2010, and those given in writing this is our judgment.
BACKGROUND FACTS
[3] The parties to this action were originally Mr Narine Singh, as plaintiff
and Mr Daniel Ramlagan, as defendant. Their dispute was as to the ownership
of two acres of land. The case was heard at first instance by Madame Justice
Cummings. In a written judgment delivered on 6th December, 2004 the judge
found for Mr Singh and awarded him all the relief claimed in his Statement
of Claim. A Notice of Appeal was filed on 22nd December, 2004. Mr Ramlagan
died almost a year later. For the purpose of prosecuting the appeal Mr
Ramlagan was succeeded by his widow as administratrix ad litem.
[4] The appeal was heard in December, 2009, almost five years after it was
filed. During the course of the hearing the Court of Appeal, of its own
motion, drew attention to the Notice of Appeal that had given rise to the
appeal. The Notice had properly been signed by Mr Clifton Llewellyn John,
who had acted as Attorney for Mr Ramlagan in the High Court. Below and to
the left of Mr John's signature was a dotted line above the printed word
"APPELLANT". On this dotted line someone (possibly Mr John himself) had
written in pen in block letters the name "RAMLAGAN".
[5] During the course of the appeal the Court of Appeal noticed this
handwritten name and became suspicious. The presiding judge asked that Mrs
Ramlagan who was in the court room be shown the name "RAMLAGAN" handwritten
on the Notice of Appeal. She was then asked if that was her late husband's
signature. She said that it was not and on her own initiative she produced
his identification card to show what his signature looked like. The Court of
Appeal then concluded that the handwritten "RAMLAGAN" was a forgery, a
"fraud in the face of the court" which it could not ignore.
[6] Accounts differ as to what course of action was adopted by Mr Mohanlall,
representing Mrs Ramlagan at the time, in response to this surprising turn
of events. Mr Singh's attorneys allege that Mr Mohanlall "conceded" the
"forgery" and invited the court to dismiss the appeal. Mrs Ramlagan's
version of events does not support this. She states in one affidavit that
after the Court of Appeal came to its conclusion as to forgery Mr Mohanlall
remarked "that the Honourable Court is free to make any finding and rule as
it sees fit". In another affidavit she states in relation to the appeal that
her lawyer "was denied audience and the matter was dismissed". In any event,
the court dismissed the appeal and the order reflecting the dismissal does
not indicate that the dismissal was consensual. No reasoned judgment has
ever been produced by the Court of Appeal in this case.
[7] Mrs Ramlagan, dissatisfied with the dismissal of the appeal, applied to
the Court of Appeal for leave to appeal to this Court. But the Court of
Appeal also dismissed that application. It was in light of that latter
dismissal that she came to this Court seeking special leave to appeal and
leave to appeal as a poor person.
SPECIAL LEAVE TO APPEAL AND LEAVE TO APPEAL AS A POOR PERSON
[8] The grant of special leave to appeal is always a matter of discretion.
See: Griffith v Guyana Revenue Authority (2006) CCJ Application No. 1 of
2006. We had little hesitation in granting special leave to appeal in this
case because we thought that the applicant had made out a prima facie case
that by preventing her from pursuing on the merits her challenge of the
judgment of the trial judge on the ground that the Notice of Appeal bore a
forged signature purporting to be that of her husband, the Court of Appeal
fell into an error which might have resulted in a miscarriage of justice.
This was clearly sufficient to warrant the grant of special leave to appeal
under s 8 of the Caribbean Court of Justice Act.
[9] We dismissed the application for leave to appeal as a poor person
because there was no proper evidence to support it. The only evidence before
us on that issue dealt with the financial circumstances of Mrs Ramlagan but
when it was put to them, counsel on both sides agreed that what was relevant
was not her means but rather the net worth of the estate of Daniel Ramlagan.
On this issue no evidence was adduced.
[10] In any event in this particular case the application for leave to
appeal as a poor person was of little real significance. The value of a
grant of such leave is that it exempts the appellant from having to provide
security for costs or to pay filing fees. But here, the respondent had made
no application for security for costs and all the relevant documents had
already been filed in this Court. A successful application would not protect
the appellant from having to pay costs if her appeal was ultimately
dismissed.
THE MERITS OF THE APPEAL
[11] The question to be answered in this appeal is whether the Court of
Appeal was wrong to dismiss the appeal. Again, we have little hesitation in
answering that question in the affirmative. The Notice of Appeal bore the
unquestioned signature of Mr John, the then legal representative of Mr
Ramlagan who had earlier acted in that capacity before Cummings J. On the
face of the notice there was nothing to suggest that it was signed by Mr
John without the authority of Mr Ramlagan. The insertion of the name "RAMLAGAN"
in block letters by someone other than Daniel Ramlagan provided no proper
basis for concluding that Mr John acted without authority in signing and
filing the Notice of Appeal. Mr John's signature was sufficient to render it
an effective Notice of Appeal. See Watson v Fernandes [2007] CCJ 1 (AJ).
[12] The Court of Appeal was wrong to treat the name "RAMLAGAN" handwritten
in capital letters not even joined together, as a purported signature of
Daniel Ramlagan. But even if the Court of Appeal entertained some concern
over someone other than Mr Ramlagan having written his name in the place
provided for his signature, the manner in which the court went about probing
this matter left much to be desired. It is to be noted that this was not a
point that seemed to trouble the respondent in the least. Mr Ramjattan, who
was present at the appeal as counsel for Mr Singh, indicated to us that the
somewhat unusual course of action taken by the
Court of Appeal occurred on the third day of the hearing of the appeal.
[13] It is an extremely serious thing to accuse and then find someone, even
an unnamed person, guilty of committing forgery. Before any such judicial
determination is made, at the very least the specific allegation should be
put to the party relying on the allegedly forged document; evidence should
be properly adduced to substantiate the allegation and a reasonable
opportunity given for a response to be made to it. Since the Court of Appeal
introduced the allegation of forgery and initiated the probe into it, one
would have expected that the Court of Appeal would have enlisted the
assistance of Mrs Ramlagan and Mr John in getting clear answers to two key
questions i.e. whether Mr John had the requisite authority to sign and file
the Notice of Appeal, and by whom and in what circumstances was the name "RAMLAGAN"
written in the Notice of Appeal. None of those steps was taken. The Court of
Appeal does not appear to have considered the eminently reasonable
possibility that the person who wrote the name "RAMLAGAN" may have been
seeking merely to identify the appellant rather than attempting to pass off
that writing as Mr Ramlagan's signature. Indeed it might have been written
by Mr John himself who would have been well aware that it was unnecessary
for the notice to contain the appellant's signature as well as his own.
[14] In all the circumstances the action of the Court of Appeal in this case
was unjustified and wrong as there was no basis for treating the Notice of
Appeal as vitiated by fraud. This appeal must therefore be allowed. The case
is remitted to the Court of Appeal to be heard on the merits. Since the
respondent sought to the very end to justify the decision of the Court of
Appeal, it is only reasonable that he should pay the costs of the appeal to
this Court including the costs of the application to this Court for special
leave to appeal, to be taxed, if not agreed. The order for costs made by the
Court of Appeal against the appellant when it dismissed the appeal is
quashed. Almost six years have elapsed since the notice of appeal was filed.
We expect therefore that the appeal will be re-listed for hearing without
delay.
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