Court of Appeal refused to reverse its decision
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‘No jurisdiction to reverse in instant case’ CCJ

IN June 2006, the Guyana Court of Appeal dismissed an appeal from the Land Commissioner on a preliminary point, which turned out to be a ‘mistaken view of the law’.
Later when it was learnt that a higher court had decided what was the law in the related case, the Court of Appeal by motion from the applicants, was asked to reverse its decision.
That court dismissed the motion by the applicants, Mukhtiyar and another vs Sukhu and others, – resulting in their approaching the CCJ for special leave to appeal against the decision of the Court of Appeal.

The CCJ after hearing the parties involved, dismissed the application for special leave to appeal, “as we do not consider that the appeal which they sought to bring is arguable”.
The application for leave to appeal was dismissed and the applicants were ordered to pay costs in the sum of $200, 000.00.

The facts disclosed that in June 2006, the Court of Appeal Guyana dismissed an appeal from the Land Commissioner on a preliminary point, namely that the attorney who had signed the notice of appeal from the Commissioner’s decision, on the petition for a declaration of ownership filed by the applicants had not been properly authorised.

At that time, the law in Guyana was thought to be that for an attorney to have authority to sign a notice of appeal, and appear in the Court of Appeal for the appellant. It was necessary for his client to have given him an authorisation in writing which had to be filed in the High Court.

However, in the case of Watson v Fernandes [2007] CCJ 1 (AJ, the Caribbean Court of Justice (CCJ), by judgment delivered on March 19, 2007 held that that was a mistaken view of the law, and that there were no formalities attached to the giving of authority by a party to an attorney for the purpose of filing an appeal.

Shortly, following that decision the applicants filed a motion in the Court of Appeal seeking to have that court’s earlier decision reversed.

The Court of Appeal dismissed the applicants’ motion and the applicants applied to the Caribbean Court of Justice for special leave to appeal against the decision of the Court of Appeal.

The CCJ had held that the Court of Appeal of Guyana did not in the instant case have jurisdiction to reverse the decision it had earlier given, in June 2006, dismissing the appeal from the Land Commissioner on a preliminary point. There were no exceptional circumstances in the instant case which would justify the Court of Appeal assuming and exercising, a highly unusual jurisdiction to reverse itself on an issue which it had already decided, not only between the same parties but in the same proceedings.

Further, there was no basis in logic or authority for attributing the facility to reverse its own decision enjoyed by the Privy Council as a final court, to an intermediate court such as the Court of Appeal. It followed that the Court of Appeal had been right to refuse the application and dismiss the motion and accordingly the application would be dismissed.
The applicants, Chamanlall Mukhtiyar and Dhandai Mukhtiyar, applied to the Caribbean Court of Justice (CCJ) in 2007, for special leave to appeal against the decision of the Court of Appeal of Guyana of June 10, 2008, dismissing the applicants motion seeking reversal of the decision of the Court of Appeal to dismiss their appeal on the basis of a preliminary objection, in the matter of a petition by the applicants for a declaration of title.
The respondents to the application were Poonardai Sukhu, Hardeo Balgobin, Rajendra Balgobin and Rohan Balgobin.

Mr. K.A, Juman-Yasin, had appeared for the appellants while Mr. Rajendra Poonai and Roopnarine Satram represented the respondents.

The Caribbean Court of Justice (CCJ) was constituted by de la Bastide P. Nelson, Pollard Hayton and Wit U.

Delivering the CCJ judgment, President of the Court de la BASTIDE P. said “The application to this court for special leave to appeal against the decision of the Court of Appeal, which was given on the 10th June, 2008, dismissing the applicant’s motion is dismissed, and the applicants must pay the cost of that application.

“It also follows that the application for leave to appeal as a poor person must also be dismissed, again with costs. The reason for the dismissal of the application for special leave to appeal is that we do not consider that the appeal which it sought to bring is arguable.
“It is manifest that the court of Appeal did not have jurisdiction to reverse the decision it had earlier given in June, 2006, dismissing the appeal from the Land Commissioner on a preliminary point.

“The preliminary point which was taken was that the attorney who signed the notice of appeal from the Commissioner’s decision on the petition for a declaration of ownership filed by the applicants, was not properly authorised.

“At the time the Law in Guyana was thought to be that for an attorney to have authority to sign a notice of appeal and to appear in the Court of Appeal for the appellant, it was necessary for his client to have given him an authorisation in writing which had to be filed in the High Court. In the case of Watson v Fernandes, however, this court in a judgment which was delivered on 19th March, 2007, held that that was a mistaken view of the law and that there were no formalities attached to the giving of authority by a party to an attorney for the purpose of filing an appeal.

“Of course, that decision was made in a case in which what was considered counsel authorising counsel to represent a party in an appeal, was applied by the Court of Appeal.
“Some three months after our decision in Watson v Fernandes, that is, on 15 June, 2007, the applicants filed their motion in the Court of Appeal seeking to have the Court of Appeal reverse the decision which it had earlier made dismissing their appeal on the basis of the preliminary objection.

“We have heard counsel’s submissions to the effect that the Court of Appeal had the power to accede to that application and to reverse, in effect, its own decision, and reinstate the appeal which it had dismissed. But the authorities that were cited in support of that submission in fact, in our view, tended rather to negate it.

“There were to cases in particular that were relied upon. The most apposite was the case of Arnold v National Westminister Bank which dealt with the question whether the rule of res judicata estopped is an absolute one, or is subject to exceptions. Without going into the facts of that case in depth, it is clearly distinguishable from the instant case. In the course of the judgment delivered in that case it was made clear that the usual course to be adopted in order to challenge a decision which is subsequently shown to have been wrong in law is by way of an appeal rather than by resort to the court which made the decision. It was held that there may be exceptional circumstances which would permit a court to decide a point in issue differently from the way in which it had decided previously between the same parties.”

After considering a number of pertinent cases the President of the CCJ said, “Having considered the authorities which were cited to us, we are satisfied that the Court of Appeal lacked the power to do that which the applicants were asking it to do by their motion, and therefore the Court of Appeal was right to refuse the application and dismiss the motion.
“In those circumstances, there is absolutely no reason to even consider granting special leave to appeal. In the course of counsel’s submissions to us, we did indicate to him that the better course might have been for the applicants to have sought to challenge the 2000 decision of the Court of appeal by applying to this court for special leave to appeal against that decision and for an extension of time for doing so.’

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