The Attorney General v Gilbert Selver
| Jurisdiction | Turks and Caicos Islands |
| Judge | Adderley, JA |
| Judgment Date | 31 August 2022 |
| Neutral Citation | TC 2022 CA 10 |
| Docket Number | Appeal No. CL-AP 15/22 From CL 130/14 |
| Court | Court of Appeal (Turks and Caicos) |
The Hon. Mr Justice K. Neville Adderley, JA
Appeal No. CL-AP 15/22 From CL 130/14
IN THE COURT OF APPEAL
Ms Clemar Hippolyte for the Applicant
Mr George C Missick for the Respondent
. This is the very first application for an extension of time in which to appeal, made to the Court, since Parliament bestowed that jurisdiction upon the Court in May of this year. It had been settled law that this Court had no power to grant such an extension beyond the 28 days conferred by s.15 of the Court of Appeal Ordinance. See for example Inversiones v Hape 1, AG v Robinson and Bishop 2 and more recently Outten v Missick & Anor 3.
. In Outten Morrison P, reiterated the call made by the immediate past President, Sir Elliott Mottley, in Robinson that there was a need in the public interest for Parliament to confer the power on the Court to extend the time for bringing a civil appeal.
. That power was conferred by way of an amendment to the Court of Appeal Ordinance which came into operation on 16 May 2022 4. Section 15 was amended by s.4 of the Court of Appeal (Amendment) Ordinance which repealed s.15(1) and substituted the following:
“(1) In the case of an appeal from any judgment, decree or order of the Supreme Court in the exercise of its civil jurisdiction, the appeal shall be brought by the appellant giving notice in writing, within twenty-eight days of the judgment, decree or order from which the appeal is made, to the Registrar of the Supreme Court, and to the opposite party or parties in the action, of his intention to appeal and also of the grounds of his appeal:
Provided that a Judge of the Court may at any time extend the time within which notice of appeal may be given.” (emphasis added)
. The words emphasized in bold letters are the ones added by the amendment and gives jurisdiction to a single judge to hear an application for extension of time.
. This application relates to the appeal from a judgment of the Supreme Court in this matter handed down on 29 April 2022. The Notice of Appeal should have been filed and a copy served on the Respondent by 27 May 2022 which was 28 days after the judgment was handed down, but it was not filed and served until 9 June 2022.
. The Respondent in or about the year 2000 applied for a commercial Conditional Purchase Lease (“CPL”) from TCIG of what is now Parcel 60602/429 “Kew Town” upon payment of certain sums and performing certain obligations. In or about the year 2001 the Respondent applied for a second residential (“CPL”) over what is now Parcel 60602/430 “Kew Town” at a certain price and on certain conditions.
. A letter dated 4 February 2003 was sent to him from TCIG confirming the arrangement. As far as I can make out from the judgment he took up occupation of the commercial parcel without signing a lease or paying the sums offered. Neither did he pay mesne profits during his period of occupancy.
. A letter dated 29 October 2008 from TCIG rescinded its 2001 decision on the residential CPL and offered him the freehold title to that Parcel at a higher price and on different terms. He then in 2013, after the Crown Lands Ordinance came into effect and set different rules for disposal of Crown Land, took up the 2008 offer and tendered the sum originally offered. However, TCIG refused, maintaining the original offer had expired. He also claimed a declaration that he was entitled to an easement over an adjacent parcel now 60602/431.
. TCIG maintained that by the time he took up the lease many years later the first offer on the residential CPL had expired and the Respondent had to satisfy the new conditions if he wanted the property. Regarding his commercial CPL application, TCIG submits that he entered as a trespasser and never ceased to be trespasser. TCIG counterclaimed for possession, damages, an order for pulling down and removal, and costs.
. The Learned Judge (“the judge”) ruled in favour of the Respondent and dismissed TCIG's counterclaim.
. As the time for appealing has passed TCIG seeks an extension of time in which to appeal the judge's decision.
. Being the first application after the amendment, as pointed out by Ms Hippolyte, there are not yet precedents in this jurisdiction. It therefore falls to the Court to consider what principles should apply and to apply those principles to the facts of this particular case.
. Ms Hippolyte helpfully provided a large number of English and other authorities which she commended to the Court for consideration and adoption if they were considered relevant.
. Mr Missick correctly observed that generally the authorities commended by Ms Hippolyte were post CPR, and did not deal with applications for extension of time to appeal, but mainly extensions to deal with various case management matters. He submitted that the post CPR tests were not relevant and opined that the test was wider.
. Without citing the authorities on which he relied Mr Missick submitted what he said were underlying principles which should guide a court when exercising its discretion to grant an extension of time.
. Both parties relied on Mc Donald v Rose [2019] EWCA Civ 4 where Lord Justice Underhill at paragraph 26 referred to the application to extend time as an application for relief from sanctions under the CPR where he said:
“26. The next question is whether or not this court should extend time. It is common ground that this is an application for relief from sanctions, such that the court needs to consider the three elements identified in Denton v T.H. White Ltd [2014] EWCA Civ 906, [2014] 1 WLR 3926, namely:
(i) the seriousness and the significance of the failure to comply with the rules;
(ii) why the default occurred;
(iii) an evaluation of all the circumstances of the case, so as to enable the court to deal justly with the application.”
This would be the case where a judge imposes sanctions for failure to comply with a rule as contained, for example, in Order 31A (Case management) of The Bahamas' rules, or the rule itself imposes sanctions for non-compliance with the relevant provision. That is not the case here.
. Near the end of his submissions Mr Missick made a passing reference to Johnson v Johnson 5, a case which he had found on The Bahamas' Court of Appeal Website, which he submitted could be used as a persuasive authority but just having found it, it appeared that it may not have been made available to Ms Hippolyte.
. Among the authorities cited by Ms Hippolyte was Quillen and others v Harney, Westwood & Riegels (No 1) 6 from the Court of Appeal of the Eastern Caribbean. That was an application under Ord 3, r 5 of the Rules of the Supreme Court 1970 [Eastern Caribbean States] for leave to extend time in which to apply for leave to appeal. In reading from the headnote, the Court (Byron Acting CJ, Satrohan Singh and Redhead JJA) held that “… in exercising its unfettered discretion in such a case, the matters to be considered by the court are (1) the length of the delay, (2) the reasons for the delay, (3) the chances of the appeal succeeding if the application is granted and (4) the degree of prejudice to the respondent if the application is granted. The discretion should be exercised flexibly with regards to the facts of the particular case and with the main concern to ensure justice to both parties…”
. These are the same factors determined by the Court of Appeal of The Bahamas in Johnson. That was an application under rule 11 of the Court of Appeal Rules 2005 for leave to appeal notwithstanding 8 days had passed after the six-week deadline mandated by rule 11(1)(b) of the Court of Appeal Rules to file an appeal.
. Crane-Scott JA speaking for the panel (Allen P, Isaacs and Crane-Scott JJA) distinguished the English authority of Sayers v Clarke Walker (a firm) [2002] EWCA Civ 645 cited there at the bar and also here by Ms Hippolyte as having obviously been considered against the background of the 1999 Civil Procedure Rules of England. She noted that Brooke LJ referred to the philosophy underpinning the 1999 CPR, which requires that court orders and practice directions be strictly obeyed on pain of the imposition of sanctions. On that basis, he held that the same considerations set out in CPR 3.9 which apply when a court is considering an application for relief from sanctions should apply to applications for extension of time. Crane-Scott JA then observed that Brooke LJ then went on to recite the same checklist of items set out in the English CPR 3.9.
. The Bahamas Court of Appeal concluded that the post CPR English cases in relation to applications for extension of time are therefore not a basis for persuasive authority in The Bahamas. The Court then, at paragraph 12, set out the principles which apply in The Bahamas:
“12. In this jurisdiction, the settled approach of the Court of Appeal to the exercise of its discretion under rule 9 to grant (or deny) an extension of time has been for the Court to have regard to the four factors identified in the judgment of Griffiths LJ in CM Van Stillevoldt BV v. El Carriers Inc [1983] 1 All ER 699. The factors were subsequently applied in numerous pre-CPR English authorities, notably Palata Investments Ltd. v. Burt & Sinfield Ltd. [1985] 2 All ER 517, Norwich and Peterborough Building Society v. Steed [1991] 2 All ER 800 and Mallory v. Butler [1991] 2 All ER 889.”
. The factors identified by Griffiths LJ in the leading authority of CM Van Stillevoldt BV are:
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1) The length of the delay.
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2) The reasons for the delay.
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3) The chances of the appeal succeeding if time for appealing is extended.
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4) The degree of prejudice to the potential respondent if the application is granted.
. These are the same...
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