IN 2003 self-represented litigant, Mohamed Nazir, who mistakenly thought that it was enough to file a Notice of Appeal at the Court, had his case dismissed because it disclosed no cause of action.

The Guyana Court of Appeal constituted by Chancellor Bernard with Justices Singh and Chang, dismissed the action and –
-Held: “failure to serve the Notice of Appeal within the required time was not a serious non-compliance with the rules. Service of the Notice of Appeal was therefore deemed to have been properly effected. Motion denied.”

A.Chase, SC for Applicants/Respondents.
K. Massiah, SC for Respondent/Appellant.
Delivering the judgment, Chancellor Bernard said: On 22nd May, 2002 the Appellant Mohamed Nazir filed a notice of appeal against a decision of the trial judge in Action No. 3810/1994 which was dismissed on the ground that it disclosed no cause of action. This decision was delivered on 18th April, 2002.

The Respondents filed a motion in the Court seeking an order that the appeal filed herein be struck out, and a declaration that the appellant has failed to comply with Order 2 Rule 4 (2). In the affidavit in support of the motion , Mr. Ganga Persaud , the Permanent Secretary of the Ministry of Legal Affairs swore that on 12th August , 2002 a document purporting to be a notice of appeal was served at the Chambers of Mr. Ashton Chase , Attorney-at-law for the first and third named Respondents, and he was also informed that a similar notice of appeal was served at the same time on Mr. S. Fraser, Attorney-at-law for the second-named Respondent.

When the motion first came on for hearing, the Appellant appearing in person, was granted leave to file an affidavit in answer which he did , and in which he admitted that copies of the notice of appeal were served by him on both Mr. Chase and Mr. Fraser, Attorneys-at-law on 12th August, 2002, but this was done out of an abundance of caution in the event that they had not received copies of the notice of appeal which he had left at the High Court Registry with a request that they be served on the two persons. He requested this Court to grant him an extension of time of three days to effect service of the notice of appeal or to deem the service on 12th August , 2002 as having been served in time.

Counsel for the Applicants/Respondents in support of the motion contended at the hearing that under Order 2, rule 4 (2) of the Court of Appeal Rules “a true copy of the hearing shall be served upon the Respondent within seven days after the original notice has been filed”, and the word “shall” is mandatory .

The Respondents had an address for service which the Appellant was aware of and at which he served the notice on 12th August, 2002. Further, the Appellant has offered no reasons for not serving the notice of appeal within the requisite time and on which the Court can exercise its discretion. He made reference to the cases of Toolsie Persaud Ltd. v. The Attorney General [2001- 2002], and others. He also contended that no address for service was given in the notice of Counsel for the Respondent/Appellant appeal and conceded that the notice of appeal was not served within the stipulated time , and that Order 2, rule 4 (2) had not been complied with.

However, by Paragraph 8 of the Appellant’s affidavit he was seeking an extension of time to comply, and proffered a reason why he had failed to comply. The reason was that he had left copies of the notice at the High Court Registry for service to be affected on the two attorneys-at-law, and only out of abundant caution had he served them himself on 12th August, 2002.

He also submitted that all of the cases referred to by Counsel for the Respondents concerned failure to file notices of appeal in time and applications for an extension of time to comply. In those cases Order 2 Rule 3 (3) was relevant and such applications were granted only in exceptional circumstances for good and substantial reasons.
The notice of appeal was not served on the Respondents within the time stipulated by Order 2 Rule 4(2) of the Court of Appeal Rules which is within seven days after the original notice has been filed.

The notice of appeal against the Attorney General of Guyana ET AL.
The judgment concluded: I would exercise the Court’s discretion in the interest of justice particularly because I do not view the failure to serve the notice of appeal within the required time to be a serious non-compliance with the Rules .
I reiterate that this is by no means intended to encourage breaches of the Rules or to endorse such breaches. The Rules must at all times be complied with, and each application will be considered on its own terms.

Accordingly, the orders sought in the motion are refused. The service of the notice of appeal effected on 12th August 2002, is hereby deemed to have not been properly filed. There will be no order as to costs. Motion denied