IN 1973, the Guyana Full Court of the Supreme Court affirmed a Magistrate’s decision for granting an application to a respondent, for a rehearing of a building land possession case, on the ground that the magistrate had a discretionary jurisdiction to do so.

Through a misunderstanding, the appellants Bhagmatie & Seepersaud who had a possession land case against Mamas, had the matter heard and determined in their favour due to the absent in court of the respondent Mamas, on the day in question.
Mamas through her counsel appealed to the Full Court, which affirmed the Order of the magistrate, after taking into account that the respondent might have been genuinely absent in court through a misunderstanding.

The facts of the case disclosed that due to a misunderstanding, neither the respondent nor her legal adviser attended court when an application for possession of certain building land was heard and determined in favour of the appellants.
The respondent thereupon filed an application for a rehearing supported by an affidavit and the magistrate made an order granting the application.

An appeal was made to the Full Court against the magistrate’s order by the appellants.
The Full Court, constituted by Justice Keith Massiah and Justice Maurice Churaman, held that in affirming the order, that the magistrate had a discretionary jurisdiction to grant a re-hearing, and in the circumstances of the case it was proper to make the order.
The appeal was dismissed. Order of magistrate was affirmed.

Attorney-at-law Mr. E.A. Gunraj appeared for the appellants while Mr. Bernard De Santos, S.C. represented the respondent.
Delivering the judgment of the court, Justice Churaman said, “This appeal raises the interesting point as to whether and in what circumstances, an application for the re-hearing of a cause or matter in the magistrate’s court can or ought to be granted.

“The appeal under review arose out of the grant of an application for a re-hearing of a claim for possession of building land. After innumerable adjournments, at each of which it would appear the respondent was in attendance, the possession claim was finally determined in favour of the appellants on January 7, 1972, the respondent on that day being in default of appearance.

Both the respondent and her legal adviser were genuinely under the impression that the case had been set down for hearing on January 10, 1972, and on attending the magistrate’s court on that date, the respondent discovered to her surprise that the case had been determined in her absence three days earlier; she forthwith informed her legal adviser, and on January 25, 1972, the respondent filed an application in the prescribed form for a re-hearing supported by an affidavit.

“It is of primary significance that the learned magistrate found on the hearing of the application for re-hearing that the respondent and her legal adviser genuinely believed that the case had been set down for hearing on January 10, 1972 and not January 7, 1972.
“Of equal significance is the fact that the respondent asserted a defence which, if accepted, would have afforded a formidable resistance to the appellants’ claim for possession; and of yet further importance is the fact that the appellants (landlords) have in no way whatsoever, altered their position in consequence of the determination of the possession claim, nor would they suffer any prejudice which cannot be reduced by costs.

“It was against this background of circumstances that the learned magistrate granted a re-hearing of the case from which order the appellants now appeal to this court.
“Counsel for respondent raised before us a preliminary point as to the jurisdiction of the Full Court on the basis of the appellants ‘non-compliance with ss 4 and 5 of the Summary Jurisdiction (Appeals) Ordinance Chapter 17 [G.] We decided to defer ruling on this preliminary point and to hear arguments on the merits. In view of the decision we have reached, it is necessary to deal with the preliminary objection, and we express no view on it.

The main contention advanced before us, as indeed also before the learned magistrate, is the question of the jurisdiction of the learned magistrate to hear and determine the application for re-hearing. The submission, in other words, questions the jurisdiction of the learned magistrate to hear and determine the application for re-hearing, in as much as the application though filed and served on the second named appellant within 28 days and was not served on the first-named appellant until May 28, 1972, i.e. some four months after the date of filing.

“It is here convenient to observe that the evidence suggests that this delay was due not to any tardiness on the part of the respondent in posting same , but to the facility or rather the lack of it , in effecting delivery. This much debated point of ‘service within 28 days’ arises from the wording of rr.4 and 5 of Pt. 20, of the Summary Jurisdiction ( Civil Procedure) Rules, Chapter 12 [G.] (Sub.Leg.) which read thus:

‘An application under section 32 of the Summary Jurisdiction (Petty Debt) Ordinance for a new hearing may be made at the same sitting of the court at which the action was heard, if both parties be present , or not more than 28 clear days after the date of the termination of the action of which a new hearing is desired.

‘When it is intended to make an application contemplated in rules 1, 3 and 4 of this part of these rules at a subsequent sitting of the court, the applicant shall deliver to the clerk a notice of application in accordance with Form 52 in the Appendix and serve on the opposite party a copy of such notice containing the date of hearing of the application.’

Continuing, Justice Churaman said “It is fair to observe at this juncture that the parties herein litigated this matter in the court below as one properly arising under Section 32 (supra), and it is equally evident that the learned magistrate determined the contest on the footing that Section 32 was the applicable and appropriate section. But was it the appropriate section covering the circumstances of the matter under review? We are of the clear view that it was not, as this section embraces a number of situations which may give rise to a party seeking a re-hearing.

“Among those situations are fraud, improper conduct on the part of the successful party, or if the unsuccessful party was prevented by ‘causes beyond his control from placing his case fully before the court’.

According to the judge, “This last situation appears to have lured the respondent, as a relevant and pertinent ground upon which the application ought to have been predicated.
“We take the view that a mistaken belief as to the date of hearing of the cause does not fall within the scope of ‘prevented by causes beyond his control’, as these words seemingly relate to the will of the party having neither the ability nor the competence of any control over the causes envisaged in the section; additionally this section envisages a party putting forward his case at least up to a certain point, but not “fully” in the sense that “much more” could have been put forward.

Concluding his judgment, Churaman said “Appellate jurisdiction is always statutory; there is in the statute no restriction upon the jurisdiction of the Court of Appeal , and, while the appellate court, in the exercise of its appellate power, is no doubt entirely justified in saying that normally it will not interfere with the exercise of a judge’s discretion except on grounds of law, yet if it sees that on other grounds the decision will result in injustice being done, it has both the power and the duty to remedy it.”

Justice Churaman declared, “We adopt Lord Atkin’s view so admirably expressed.
He added, the appeal is accordingly dismissed, the order of the magistrate affirmed with costs to the respondent.