-spells sweet victory for appellant

IN 1955, businessman John Horatio Halley, by an Ex Parte application sought to have an alleged gift of property to him from his mother be registered in his name. But Justice Harold Phillips, in Chambers, apparently unaware that the particular Ordinance was repealed with certain amendments, dismissed the matter and held that under the Ordinance, the application should have been made in open court.
Halley appealed, and the Full Court, constituted by Chief Justice J. A. Luckhoo and Justices Adrian Date and Gordon, after hearing arguments in the matter, set aside the judgment of the Chamber judge and allowed the appeal.
The Full Court had to consider among other things: The Appeal; Order  of Judge in Chambers and whether appeal lies to the Full Court; The Supreme Court Ordinance, Chapter 7,  Section 89, as repealed  and re-enacted by the  Federal  Supreme Court (Appeals)  Ordinance, 1958, and the schedule thereto.
The appellant made an ex parte application  by way of affidavit  under the Deeds Registry  Ordinance, Chapter 32 ,  Section  36 , for registration in his own name an alleged gift  of property  to him.
Such an application is — by Rule 14  (1) of the Rules of Court (Business in the Deeds Registry), Chapter 32 — required to be by “originating  motion” OXL (A), r. (3) (later amended  and now  O.41, r. 5 (3), of the Rules of Court; 1955), which was in force  at the time when the application was filed,  read as follows:
“Where by any Ordinance or rule, it is provided  that an application to the Court shall be made by an ‘originating motion’, such application shall be made by ‘originating summons’.”
Justice Phillips dismissed the application, holding that it should have been made in open court.   On appeal, it was objected in limine that the Full Court had no jurisdiction on the ground that by Section 89 of the Supreme Court Ordinance, Chapter 7, as repealed  and re-enacted  by Section 37  of the Federal Supreme Court (Appeals)  Ordinance, 1958  and the schedule thereto no appeal lay to the Full Court  from an Order made on an ex parte application.
The Full Court held that:
(i)      The application ceased to be an ex parte application as soon as issue was joined by the respondents. The Order of the judge in Chambers was therefore made on an Inter Partes application;
(ii)    The application should have been made by originating summons with an affidavit in support instead of by an ex parte application by way of affidavit;
(iii)    If there had been strict compliance with the Rules, the application would have come before a Judge-in-Chambers and not in open court as Phillips, J., thought.  The sum total of the appellant’s error, therefore,  lay in his omission to file an ex parte summons with his affidavit.     This was a mere irregularity, and did not entitle the respondent ex debito justitlae to have the appellant’s application set aside.
In the circumstances, the Full Court allowed the appeal.
At the hearing of the appeal, Mr. B.O. Adams, Attorney-at-law,  represented the appellant, while lawyer  Dereck C. Jagan appeared for the respondents.
Delivering the Judgment of the Court,  the Chief Justice said: “ On  the 21st  January, 1955,  the appellant  filed an ex parte application, by way of affidavit, asking the Supreme Court to make an order  under Section 28  of the Deeds Registry  Ordinance, Chapter 177 (now Section  36 of Chapter 32 of the Kingdom Edition  of the ( LAWS  OF British Guiana ) that certain  property  be passed to him  and registered  in his name by virtue of an alleged gift of the property to him  by his mother prior to 1905.
“On the 26th January, 1955, the application came before Miller, J. who made the following order:-
‘Upon the application  of John Horatio Halley by affidavit  dated  the 21st  day of January, 1955, and upon reading the said affidavit,  and upon hearing, counsel for the  applicant, it is ordered  that the Registrar of Deeds do pass and register transport of the property described in the schedule hereunder  to and in favour of the said John Horatio Halley,  unless good cause be shown  why this order should not be made absolute on Monday the 22nd  day of August.  And it is further ordered  that all persons having or claiming to have any right or title to the said property  shall appear and establish  their claims or otherwise show good  cause as aforesaid before the Judge-in-Chambers on the said last mentioned day, at the hour of 9.00  o’clock in the forenoon, or be forever barred therefrom.’
‘And it is further ordered that this  order be served and published  by advertisement in the Official Gazette, and in one daily newspaper circulating  in this colony  on three (3) successive Saturdays, the first of such publications  to be made on the 6th  day of August, 1955.’ 
“The order appears to have been published as directed, and on the 20th of August, 1955, the respondents filed separate notices of opposition to the passing of transport to the appellant.
On the 22nd  of August, 1955, the matter again came before Miller J. in Chambers, and the following order was made:
‘Matter to be placed on hearing list.  Pleadings to be filed.  Copy of application to be served on opposers.  Copy of notices of opposition to be served on applicant.’
“A request for hearing was filed by the appellant on the 25th May, 1955.   The record shows  that the mater was called before various judges on various dates and not heard, and that on the 13th of April, 1959, it came before Phillips, J. when counsel for the respondents submitted (apparently for the first time) that the proceedings  were  a nullity, in that they were instituted by an ex parte application by way of affidavit, instead of  by originating motion as prescribed by Rule 14 (1) of the Rules of the Supreme Court (Deeds Registry). Phillips J., upheld the submission and dismissed the appellant’s application.  In the course of his judgment he said:
‘In my view,  applications to the court by originating motion in Rule 14 can only mean in open court.  It follows, therefore, that this application was not made in conformity with the rules. This is my judgment. It is not an irregularity, but a nullity. In my view, applications under  Section 36 must be made in open court.  The objection is accordingly upheld.’”
At this stage, Chief Justice Luckhoo, who was delivering the judgment of the Full Court, referred  to the judgment of Phillips J., and declared: “Against that decision, the appellant has appealed to this court.”
The C.J. added:  “Before us, counsel for the respondents again raised an objection in limine —  this time as to the jurisdiction  of this court  to entertain the appeal.   In our opinion,  the short answer to the objection is to be found in provisions of the schedule to the Federal Supreme Court (Appeals)   Ordinance, 1958 (No. 19), which repeal Sections 89 and 91 of the Supreme Court Ordinance, Chapter 7,  and substitute fresh provisions for  Section 89.
“By Section 9 of the Federal Supreme Court (Appeals) Ordinance, 1958,” he said, “no appeal lies to the Federal Supreme Court from  a judge in the Supreme Court  made in Chambers. This matter, as is stated in the order appealed from, had been adjourned for further hearing in open court, and  this was consequently merely a continuation of the hearing in Chambers.”
According to him: “It will thus be seen that even if there had been strict compliance with the rules, the application would have come before a Judge-in-Chambers in the first instance,  and not in open court  as Phillips J., thought.
“The sum total of the appellant’s error therefore lies in his omission to file an ex parte summons with his affidavit.   This is a mere irregularity, and does not entitle the respondent ex debito Justitlae to have the appellant’s applicaion set aside.   We think that in the circumstances of this case, the provisions of O. 54, Rule 2, should be invoked, and we now do so.
“The appeal is accordingly allowed, and the order made by Phillips, J., on 16th April, 1959, is set aside with costs to the appellant in the court below. The matter is to be remitted to a judge to be heard and  determined.”