1
COURT OF APPEAL SITTING
MONTSERRAT
2nd – 4th December 2013
APPLICATIONS AND APPEALS
Case Name: Aileen Ross
v
The Montserrat Centre Ltd.
[MNIHCVAP2013/0002]
Date: Monday, 2nd December 2013
Coram: The Hon. Mde. Louise E. Blenman, Justice of
Appeal
The Hon. Mr. Don Mitchell, Justice of Appeal
[Ag.]
The Hon. Mde. Gertel Thom, Justice of Appeal
[Ag.]
Appearances:
Appellant: Mr. David Brandt
Respondent: Ms. Marcelle Watts
Issues: Application for permission to file a notice of
appeal and skeleton arguments – Damages
Result / Order /
Reason:
[Oral delivery]
The application of the appellant to file a notice
of appeal and skeleton submissions is
withdrawn and accordingly dismissed.
Case Name: James White Jr.
v
Felix Awudo
2
[MNIMCVAP2012/0001]
Date: Monday, 2nd December 2013
Coram: The Hon. Mde. Louise E. Blenman, Justice of
Appeal
The Hon. Mr. Don Mitchell, Justice of Appeal
[Ag.]
The Hon. Mde. Gertel Thom, Justice of Appeal
[Ag.]
Appearances:
Appellant: Mr. Jean Kelsick
Respondent: Mr. David S. Brandt
Issues: Civil appeal – Whether the decision of the
learned magistrate that it was not a requirement
of the oral contract for the door frames and
casings to be delivered to the appellant in
person where there was no term in the oral
contract as to the method of delivery of the
door frames and casings was erroneous –
Whether the decision of the Magistrate was
erroneous in law as the 12 casings were
delivered to the work site but not to the
appellant in person who was the owner of the
property/work site
Result / Order: [Oral delivery]
1. The appeal is dismissed.
2. Costs awarded to the respondent in the sum
of two thirds of the sum of $750.00, this sum
being the costs awarded in the court below.
Reason: The respondent was contracted to build 12
casings for the appellant. The complaint of the
appellant was that he was not satisfied with the
work done by the respondent and he rejected
the casings after they were made, delivered and
installed.
3
The magistrate was satisfied from all the
evidence that the casings were made and
delivered; this was a finding of fact.
The Court held that the law is that an appellate
court should be slow to disturb a finding of fact
made by a magistrate who had the benefit of
seeing the witnesses and hearing the witnesses
gave oral evidence. An appellate court should
not come to a different conclusion unless it is
satisfied that any advantage enjoyed by the trial
judge in hearing and seeing the witnesses
could not be sufficient to justify their
conclusions. The Court of Appeal may take a
different view without having seen or heard the
evidence and can come to a conclusion on the
printed evidence if the reasons given by the
magistrate are not satisfactory on the evidence.
The Court applied those principles of law and
ultimately held that in this case the appeal must
be rejected.
Case Name: [1] Denzil Edgecombe
v
[1] The Premier
[2] The Attorney General
[MNIHCVAP2013/0003]
Date: Monday, 2nd December 2013
Coram: The Hon. Mde. Louise E. Blenman, Justice of
Appeal
The Hon. Mr. Don Mitchell, Justice of Appeal
[Ag.]
The Hon. Mde. Gertel Thom, Justice of Appeal
[Ag.]
Appearances:
Applicant / Intended In person
4
Appellant:
Respondent: Ms. Amelia Daley
Issues: Application for leave to appeal – Application for
adjournment
Result / Order: [Oral delivery]
The appeal is adjourned to the next sitting of
the Court of Appeal in Montserrat during the
week of 23rd June 2014.
Reason: The applicant/intended appellant requested an
adjournment of the matter. There was no
objection to the application for adjournment
from counsel for the respondents.
Case Name: Charlesworth Piper
v
Montserrat Land Development Authority
[MNIMCVAP2013/0001]
Date: Monday, 2nd December 2013
Coram: The Hon. Mde. Louise E. Blenman, Justice of
Appeal
The Hon. Mr. Don Mitchell, Justice of Appeal
[Ag.]
The Hon. Mde. Gertel Thom, Justice of Appeal
[Ag.]
Appearances:
Appellant: In person
Respondent: Mr. Kharl Markham
Issues: Civil appeal – Application for adjournment
5
Result / Order: [Oral delivery]
The hearing of this appeal is adjourned and
traversed to the next sitting of the Court of
Appeal in Montserrat during the week of 23rd
June 2014.
Reason: The appellant requested an adjournment of the
matter. There was no objection to the
application for adjournment from the
respondent.
Case Name: Marie T. Ryan
v
Mervin Browne
[MNIMCVAP2012/001A]
Date: Monday, 2nd December 2013
Coram: The Hon. Mde. Louise E. Blenman, Justice of
Appeal
The Hon. Mr. Don Mitchell, Justice of Appeal
[Ag.]
The Hon. Mde. Gertel Thom, Justice of Appeal
[Ag.]
Appearances:
Appellant: Ms. Marcelle Watts
Respondent: In person
Issues: Civil appeal – Application for adjournment
Result / Order: [Oral delivery]
The hearing of this appeal is adjourned and
traversed to the next sitting of the Court of
Appeal in Montserrat during the week of 23rd
6
June 2014.
Reason: The respondent requested time to retain the
services of an attorney.
Case Name: [1] The Central Tenders Board
[2] The Attorney General
v
[1] Vernon White (trading as White
Construction Services)
[MNIHCVAP2012/0008]
Date: Tuesday, 3rd December 2013
Coram: The Hon. Mde. Louise E. Blenman, Justice of
Appeal
The Hon. Mr. Don Mitchell, Justice of Appeal
[Ag.]
The Hon. Mde. Gertel Thom, Justice of Appeal
[Ag.]
Appearances:
Appellant: Mrs. Sheree Jemmotte-Rodney
Respondent: Mr. Kharl Markham with him Ms. Chivonne
Gerald
Issue: Application for leave to appeal to Her Majesty in
Council
Result / Order: [Oral delivery]
1. The applicants/appellants are hereby
granted leave to appeal to the Judicial
Committee of the Privy Council on the
following grounds:
(a) the applicants/appellants shall within 90
days of the date hereof enter into good
7
surety with the Registrar in the sum of
five hundred pounds (£500.00) for the due
prosecution of the appeal and the
payment of all costs as may become
payable by the applicants/appellants in
the event of their not obtaining an order
granting final leave to appeal or of the
appeal being dismissed for nonprosecution
or the Judicial Committee
ordering the applicants/appellants to pay
the costs of the appeal (as the case may
be).
(b) The parties shall abide by Rules 18 to 20
of the Judicial Committee (Appellate
Jurisdiction) Rules Order 2009 and
Practice Directions 4.2.1 to 4.2.3 and
Practice Direction 5. The file shall be
transmitted to the Registrar of the
Judicial Committee of the Privy Council
once final leave has been granted.
(c) The applicants/appellants shall take the
necessary steps without delay for the
purpose of procuring the preparation of
the Record and dispatch thereof to
England.
(d) The applicants/appellants shall make an
application to the Court for final leave to
appeal to the Judicial Committee of the
Privy Council accompanied with the
Certificate of the Registrar showing the
payment of the security for costs for the
prosecution of this appeal as prescribed
in this Order.
(e) The costs of this application shall be
costs in the appeal.
Reason: Appeals to the Privy Council are governed by
section 3(1) of the Montserrat Appeals to the
Privy Council Order 1967. The test outlined
there for granting leave to appeal to the Judicial
Committee of the Privy Council is where the
decision being appealed is a final decision of
the Court of Appeal and the matter in dispute is
of a value of 300 pounds or greater, then an
appeal lies as of right to the Privy Council.
8
The claim in this case is for judicial review of
the decision to reject or deny a tender bid for
the construction of a school on the ground of
procedural irregularity. There is no doubt that
the subject matter of the claim is valued in
excess of 300 pounds thereby making the
appeal to the Privy Council as of right.
Case Name: Yusuf Muhammed
v
Selsi Limited
[MNILTAP2012/0001]
Date: Tuesday, 3rd December 2013
Coram: The Hon. Mde. Louise E. Blenman, Justice of
Appeal
The Hon. Mr. Don Mitchell, Justice of Appeal
[Ag.]
The Hon. Mde. Gertel Thom, Justice of Appeal
[Ag.]
Appearances:
Appellant: Mr. Jean Kelsick
Respondent: Mr. David S. Brandt
Issues: Civil appeal – Employment law – Whether the
finding of the Labour Tribunal that the appellant
was not an employee of Selsi Limited was
correct in law – Whether the finding of the
Labour Tribunal that the appellant was not an
employee of Selsi Limited was consistent with
the findings of fact made by the Labour Tribunal
– Whether the Labour Tribunal addressed its
mind to the burden of proof as prescribed by
the Employment Ordinance in finding that the
appellant was not an employee of Selsi Limited
– Whether the finding of the Labour Tribunal
9
that the appellant was employed as an
independent contractor was correct in law
Result / Order: [Oral delivery]
1. The question of the calculation and award of
any severance pay or alternatively
compensation or redundancy pay to which
Mr. Muhammed is entitled based on his
claim, is remitted for consideration and
determination by the Labour Tribunal.
2. No order as to costs.
Reason: The Employment Act, Cap. 15.03, Revised Laws
of Montserrat 2008, provides at section 41 that
an appellant has a right of appeal only on a
point of law, by way of a case stated from a
decision of the Tribunal to the Court of Appeal.
In order for the appellant to succeed he has to
show that the Tribunal misdirected itself in law
or its decision was one of which no Tribunal
properly directed could have reached on the
facts. In the House of Lords case of Edwards
(Inspector of Taxes) v Bairstow and Another
[1956] AC 14 the Lords made it clear that the
Court of Appeal should only interfere with the
conclusion which no reasonable Tribunal,
properly instructed, could have reached. The
Lords went on to deprecate the suggestion that
since the question whether a contract was
frustrated was one of law the court was free to
decide the matter itself contrary to the decision
of the arbitrators. Sir John Donaldson MR in
O’Kelly and Others v Trusthouse Forte P.L.C
[1984] QB 90 set out the approach which an
appeal court should adopt in reviewing the
decision of a tribunal on a question of law. He
said at page 122:
“The appeal tribunal is a court with a
statutory jurisdiction. So far as is
material, that jurisdiction is limited to
hearing appeals on questions of law
arising from any decision of, or arising in
any proceedings before, an industrial
tribunal … If it is to vary or reverse a
10
decision of an industrial tribunal it has to
be satisfied that the tribunal has erred on
a question of law”.
Sir John Donaldson further held that the court
has to be satisfied that the Tribunal has erred
on a question of law. The court must otherwise
loyally accept the conclusions of fact with
which it is presented.
Following those principles, the Court stated that
it had no doubt that an appellate court could
interfere with a decision of a Tribunal only in
the following circumstances:
(a) If the Tribunal was positively wrong in
law; or
(b) If the only reasonable conclusion on
the facts found by the Tribunal was
inconsistent with the determination it
came to (See the judgment of Lord
Griffiths in Lee Ting Sang v Chung
Chi-Keung and Another [1990] 2 AC
374 and Lord Radcliffe in Edwards
(Inspector of Taxes) v Bairstow and
Another [1956] AC 14.
The Court went on to hold that it is well
established that the question of whether
someone is or is not employed under a contract
of employment is a question of fact for a
Tribunal. In arriving at its finding, a Tribunal
reasonably directing itself would consider the
following factors, adapted from Chitty on
Contracts Twenty Sixth Edition, Volume II, at
paragraph 3858:
(a) the degree of control exercised by
Selsi Ltd. over Mr. Muhammed;
(b) whether Mr. Muhammed’s interest in
the relationship with Selsi ltd involved
any prospect of profit or loss;
(c) whether Mr. Muhammed was properly
regarded as part of Selsi Ltd.’s
organization;
(d) whether Mr. Mohammed was carrying
on business on his own account or
carrying on the business of the
11
employer;
(e) the provision of equipment by Selsi
Ltd.;
(f) the incidence of tax and national
insurance;
(g) the fact Selsi Ltd. applied for and
obtained a work permit for every year
Mr. Muhammed worked for it;
(h) the duration of the time the appellant
worked for Selsi Ltd; during that
period the pay slips and stubs to Mr.
Muhammed, and the preparation of
time sheets in relation to him;
(i) the parties’ own view of their
relationship; and
(j) the traditional structure of the trade or
procession concerned and the
arrangements within it.
The Court agreed with the appellant that the
Tribunal failed to formulate the test completely.
If it omitted some of the key ingredients of the
test and failed to give proper weight to the legal
consequences of some that it did identify, such
as the legal effect of the applying for the work
permits and the submission of the PAYE and
Social Security payments as employer on behalf
of Mr. Muhammed, then it omitted to take into
consideration all of the relevant factors.
Instead, it placed undue emphasis on the
statements made in cross-examination by Mr.
Muhammed that he worked for himself, and
sometimes when they (the respondent) called
him he told them he had something else to do.
The Court did not consider that those
statements outweighed the preponderance of
the evidence to the contrary.
If the Tribunal had properly addressed its mind
to the other factors that were placed before it,
and had correctly weighed those factors, acting
reasonably, it ought to have concluded that a
contract of service existed between Mr.
Muhammed and Selsi Ltd. The Court accepted
the submissions of counsel for the appellant
that no Tribunal properly addressing itself to
12
the facts could reasonably have come to the
conclusion that Mr. Muhammed was an
independent contractor. In that regard, the
Court could intervene.
In view of the findings above, the Court
answered the questions in the case stated as
follows:
(a) Whether the finding that at the material
time Mr. Muhammed was not an
employee of Selsi Ltd?
The Court found that he was an
employee.
(b) Whether the finding that Mr. Muhammed
was not an employee of Selsi Ltd was
consistent with the findings of fact made
by the Labour Tribunal in its written
decision?
The Court found that the finding was not
consistent with its findings of fact.
(c) Whether in finding that Mr. Muhammed
was not an employee of Selsi Ltd the
Labour Tribunal addressed the burden of
proof prescribed by the Employment Act
correctly or at all?
The Court was satisfied that as a matter
of law he who assets must prove, and
since it was the claimant/appellant who
asserted that he was an employee, then it
was he who had to prove that he was an
employee.
(d) Whether the finding that Mr. Muhammed
was employed as an independent
contractor under a contract for services
is correct?
The Court answered no.
(e) Whether the Labour Tribunal erred in law
by failing to address the submission of
13
counsel for Mr. Muhammed at the hearing
of this application that, in contravention
of the Employment Act, Selsi Ltd. was
contracting out of the provisions thereof?
The Court considered that in view of the
findings above this question becomes
otiose.
(f) The Court was of the view that there was
no need to deal with the further
subsidiary questions raised in
paragraphs (f), (g) and (h), of the case
stated. The Court considered that those
were matters that would be more properly
dealt with by the Labour Tribunal.
Case Name: William Taylor
v
The Commissioner of Police
[MNIMCRAP2012/0006]
Date: Tuesday, 3rd December 2013
Coram: The Hon. Mde. Louise E. Blenman, Justice of
Appeal
The Hon. Mr. Don Mitchell, Justice of Appeal
[Ag.]
The Hon. Mde. Gertel Thom, Justice of Appeal
[Ag.]
Appearances:
Appellant: Mr. Hogarth Sergeant
Respondent: Ms. Kathyann Pyke
Issues: Criminal appeal – Willful obstruction of police
officer and unlawful assault – Whether the
learned magistrate properly convicted the
appellant of the offences of unlawful
14
obstruction of a police officer in the due
execution of his duty contrary to section 313(a)
of the Penal Code Cap. 4.02 of the Laws of
Montserrat and unlawful assault on a police
officer of the Royal Montserrat Police Service
contrary to section 189 of the Penal Code Cap.
4.02 of the Laws of Montserrat
Result / Order: [Oral delivery]
The appeal is dismissed and the conviction is
affirmed; the sentence is upheld.
Reason: The Court was of the opinion that the
magistrate acted properly in convicting the
appellant of the offences as charged.
Consequently, there was no reason to upset
magistrate’s decision.
Case Name: Thomas Allen
v
The Queen
[MNIHCRAP2013/0004]
Date: Tuesday, 3rd December 2013
Coram: The Hon. Mde. Louise E. Blenman, Justice of
Appeal
The Hon. Mr. Don Mitchell, Justice of Appeal
[Ag.]
The Hon. Mde. Gertel Thom, Justice of Appeal
[Ag.]
Appearances:
Appellant: Mr. David S. Brandt
Respondent: Ms. Kathyann Pyke
Issues: Criminal appeal against sentence of 15 months
15
and 19 days – Unlawful sexual intercourse with
a girl under 16 years – Whether the learned trial
judge took into account the statement of the
probation officer that the virtual complainant
had two encounters with the appellant, one at
Cudjoe Head and the other at Salem, despite the
fact that the legal representative for the
appellant told the learned trial judge to banish
from her mind any reference to the incident at
Cudjoe Head as that incident was not before the
court – Whether the learned trial judge erred in
failing to deduct 1/3 from the notional sentence
after the appellant admitted to having unlawful
sexual intercourse to the Police at the
Preliminary Inquiry and had pled guilty to the
offence at trial – Whether the learned trial judge
failed to take into account that the offence for
which the appellant had pled guilty was his first
offence – Whether the learned trial judge erred
in failing to inform the legal representative for
the appellant whether 1/3 was deducted from
the maximum sentence or notional sentence
Result / Order: [Oral delivery]
1. The appeal is allowed.
2. The sentence of the High Court imposed on
the appellant of fifteen (15) months, nineteen
(19) days is hereby varied and substituted
with a sentence of six (6) months
imprisonment to take effect from the 12th of
July 2013, the date of conviction of the
appellant.
3. All periods spent on remand are to be
deducted in calculating the term of
imprisonment of six (6) months.
Reason: The Court found that the mitigating factors were
overwhelmingly in favour of the appellant as he
had no previous convictions. He pleaded guilty
on his arrest and pleaded guilty to his offenses
at trial. Further, there was no violence involved
in the commission of the offence.
The Court concluded that the mitigating factors
16
clearly outweighed the aggravating factors. In
so far as the appropriate sentence is
concerned, the Penal Code, Cap. 4.02, Revised
Laws of Montserrat 2008, has imposed a
maximum sentence of two (2) years for the
offence. The learned trial judge was required to
determine the notional sentence. The notional
sentence in this case is one (1) year. In this
case, where the appellant pleaded guilty at the
trial, he ought to have been given a one third
reduction in sentence. The only aggravating
factor in this case is that the appellant was a
grown man having sexual intercourse with a girl
under the age of sixteen (16) years.
The Court further noted that the appellant
should also have been given credit for time
spent in prison awaiting trial.
Case Name: Sean Knights
v
The Queen
[MNIHCRAP2013/0003]
Date: Tuesday, 3rd December 2013
Coram: The Hon. Mde. Louise E. Blenman, Justice of
Appeal
The Hon. Mr. Don Mitchell, Justice of Appeal
[Ag.]
The Hon. Mde. Gertel Thom, Justice of Appeal
[Ag.]
Appearances:
Appellant: Mr. David S. Brandt
Respondent: Ms. Kathyann Pyke
Issues: Criminal appeal – Unlawful wounding
17
Result / Order: [Oral delivery]
The hearing of this appeal is adjourned and the
matter is traversed to the next sitting of the
Court of Appeal in Montserrat during the week
of 23rd June 2014.
Reason: To facilitate the attendance/appearance of the
appellant.
Case Name: [1] Geraldine Cabey
v
[1] His Excellency the Governor of
Montserrat
[2] The Attorney General
[MNIHCVAP2012/0009]
Date: Wednesday, 4th December 2013
Coram: The Hon. Mde. Louise E. Blenman, Justice of
Appeal
The Hon. Mr. Don Mitchell, Justice of Appeal
[Ag.]
The Hon. Mde. Gertel Thom, Justice of Appeal
[Ag.]
Appearances:
Appellant: Mr. Jean Kelsick
Respondent: Mrs. Sheree Jemmotte-Rodney
Issues: Civil appeal – Whether the decision of the
Governor to retire the appellant in the public
interest was illegal and and infringed the
principles enunciated in R v Sussex Confirming
Authority ex parte Tamplin & Sons’ Brewery
(Brighton), Ltd. (1937) 4 All ER 106 which
indicated that an objective test ought to be
18
utilized when determining the “public interest”
– Whether there was sufficient evidence for the
learned trial judge to find that the relationship
between the appellant and the public service
had been so damaged and confidence
undermined – Whether the decision of the
Governor to retire the appellant was irrational,
irregular and procedurally unfair – Whether the
learned trial judge erred when he found that
there was no basis for concluding that the
decision of the Governor was influenced by
bias, bad faith or was improperly motivated –
Whether the learned trial judge failed to
consider the contentions based on the
appellant’s pleadings, evidence and written
submissions that her retirement was
unconditional, and additionally due to the
respondent’s errors of the law and/or illegal
conduct, breach of statutory duty, negligence,
misfeasance in public office, her retirement was
wrong in law
Result / Order: [Oral delivery]
1. The appeal is dismissed and the order of the
learned trial judge is affirmed.
2. There is no order as to costs.
Reason: The Court found that at paragraphs 31 to 39 of
the lower court judgment the learned trial judge
stated what he considered to be the only the
effect of R v Sussex. Further, the learned trial
judge opined that the decision of the Governor
could only be challenged successfully on the
grounds that the discretion was improperly
exercised for example on the grounds of
improper motive, bias, or bad faith or a breach
of the rules of natural justice and that there was
no basis to impose any other condition.
The Court was of the opinion that the legislation
gave the Governor the discretion to retire a
public servant in the public interest once the
Governor had regard to all relevant factors such
as public confidence, relationships between the
19
claimant and colleagues, the efficiency of the
department and its smooth functioning. The
Court considered that the Governor did put his
mind to these matters before retiring the
appellant.
The Court reviewed the careful analysis of the
trial judge and found that the Governor’s
decision to retire the appellant was intra vires
regulation 35(1) of the Public Service
Commission Regulations Cap. 1.06, and
General Orders of Montserrat 43, 219 and 220.
There was no evidential basis on which the
learned trial judge could have come to a
conclusion to the contrary.
Learned counsel for the Crown asked the Court
to find that the Governor had proper reasons to
retire the appellant in the public interest based
on the reasons given by the Governor, some of
which were clearly articulated in the letter of
15th December 2006. Counsel for the Crown
reminded the Court that the recommendation
that the appellant be retired in the public
interest came from the Public Service
Commission (“PSC”), an independent body, and
this was after they had carefully considered the
record of the Transcript and the Reports that
were submitted both by the appellant and the
Financial Secretary. It was as a consequence of
the recommendation that the Governor acting
independently came to the conclusion that a
retirement in the public interest was desirable.
Counsel stressed that there was not a scintilla
of evidence before the Court from which it
could be concluded that the decision was
irrational. The Court agreed with the
submissions of counsel and was of the view
that there was no basis upon which it could
properly conclude that the Governor’s decision
was irrational or that she took into account
irrelevant considerations.
In relation to bias, the Court had no doubt that
looking at the entire matter and at everything
that transpired in relation to the Financial
20
Secretary, the PSC and the Governor, the latter
being the one who made the actual decision,
there was no basis for any of the allegations of
bias made by the appellant. In so far as they
were made before the learned trial judge and
rejected, the Court agreed with the conclusion
the learned trial judge came to.
Counsel for the appellant asserted that the
decision of the learned trial judge was
procedurally irregular and unfair in light of a
number of circumstances including the
premature advertisement of the Post of
Accountant General while the appellant was still
the Office Holder. Counsel for the respondent
maintained that there was no procedural
irregularity or unfairness occasioned by the
premature advertisement of the post of
Accountant General. Counsel asked the Court
to accept that it was indeed an administrative
error and to place significant weight on the
intimation of the Governor when she sought to
assure the appellant that neither the PSC nor
herself was implicated in that erroneous
advertisement of the post. The Court carefully
reviewed the evidence of both the appellant and
the respondents, the judgment of the learned
trial judge and the submissions, both written
and oral, and agreed with the conclusion the
learned trial judge arrived at. The Court found
no merit in the complaint that the decision of
the learned trial judge was procedurally
irregular and unfair.
On the ground of appeal of whether the learned
trial judge failed to consider the contentions
based on the appellant’s pleadings, evidence
and written submissions that her retirement
was unconditional, and additionally due to the
respondent’s errors of the law and/or illegal
conduct, breach of statutory duty, negligence,
misfeasance in public office, her retirement was
wrong in law, the Court found that the learned
trial judge made no specific findings on those
matters. The Court considered the allegations
and was of the view that there no scintilla of
21
evidence on which the appellant could have
prevailed.
Finally, in relation to costs, the matter being a
judicial review matter and taking into account
rule 56.13(6) of the Civil Procedure Rules 2000
which states that the general rule is that no
order for costs may be made against an
applicant for an administrative order unless the
court considers that the applicant has acted
unreasonably in making the application or in
the conduct of the application and the Court
being of the opinion that the appellant did not
act unreasonable in making the application or in
the conduct of the application, the Court was of
the opinion that there should be no order as to
costs.
Case Name: [1] The Attorney General
[2] Planning and Development Authority
[3] Easton Farrell-Taylor
v
[1] Jon Miller
[2] Steve Price
[3] Andy Burk
[4] Ed Berger
[5] Hank Henry
[6] Eric Tomme
[7] Greg Mehring
[8] Gerry Blomquist
[9] Troy Deppermann
[10] George G. Walker, QC
[MNIHCVAP2012/0011]
Date: Wednesday, 4th December 2013
Coram: The Hon. Mde. Louise E. Blenman, Justice of
Appeal
The Hon. Mr. Don Mitchell, Justice of Appeal
22
[Ag.]
The Hon. Mde. Gertel Thom, Justice of Appeal
[Ag.]
Appearances:
Appellant: Mrs. Sheree Jemmotte-Rodney
Respondent: Mr. John Fuller
Issues: Civil appeal – Whether the decision of the
learned trial judge was correct in law when he
ruled that the appellants were estopped from
arguing that the respondents had not filed their
fixed date claim form out of time after they had
been granted an extension of time to file their
fixed date claim form out of time in writing by
the respondents the claim for judicial review by
the respondents and claim form – Whether the
respondents could properly grant an extension
of time to the appellants to file a fixed date
claim form outside of the time permitted by rule
56.4(11) of the Civil Procedure Rules 2000 –
Whether the respondents can rely on an
affidavit filed on the leave to file a claim for
judicial review application as an affidavit in
support of a claim for judicial review as
required by rule 56.7(3) of the Civil Procedure
Rules 2000
Result / Order: [Oral delivery]
1. The appeal is dismissed.
2. There will be no order as to costs.
3. Matter remitted to the High Court be dealt
with expeditiously.
Reason: The Court was of the opinion that a number of
cases underline the importance of rule 56 of the
Civil Procedure Rules 2000 (“CPR”) which rule
governs administrative actions and requires as
a mandatory pre-condition that the fixed date
claim be filed within 14 days of the leave given
by the trial judge. However, in this case, as the
learned trial judge found, the Crown had
23
specifically advised the respondents that it
would not be insisting on the 14 day rule and
consented to the fixed date claim form being
filed afterwards. In those circumstances the
Court considered it unfair and contrary to all
concepts of justice to permit the appellants to
now rely on the mandatory rule. The Court
agreed with the learned trial judge that the
appellants were estopped from insisting on the
application of the mandatory rule.
Further, the Court was satisfied that while it is a
requirement of the CPR that evidence on
affidavit must be filed with the fixed date claim
form, where the affidavits that were going to be
relied on were, as in this case, extensive and
consequently expensive to reproduce and the
respondents having indicated on the fixed date
claim form that they would be relying on the
affidavits which were filed with the application
for leave, it would be an unnecessary burden to
require that these affidavits, in identical or
similar form, be refiled with the fixed date claim
form.
The Court felt it prudent to place on record that
where applicants intend to rely on affidavits or
pleadings filed earlier in the same matter or in
an application which is a precursor to the claim
the applicants must seek the leave of the Court
to do that.
Case Name: Neville S. Kirwan
v
Mildred A. Kirwan
[MNIHCVAP2012/0002]
Date: Wednesday, 4th December 2013
Coram: The Hon. Mde. Louise E. Blenman, Justice of
Appeal
24
The Hon. Mr. Don Mitchell, Justice of Appeal
[Ag.]
The Hon. Mde. Gertel Thom, Justice of Appeal
[Ag.]
Appearances:
Appellant: Mr. Kharl Markham with him Ms. Chivonne
Gerald
Respondent: Mr. Sylvester Carrott
Issues: Civil appeal – Whether the learned trial judge
erred in awarding the parties a 50% equal share
in the property in Olveston registered as Block
12/4 Parcel 083 – Whether the learned trial judge
erred in ordering that an account be taken of
the monies paid by Tradewinds Montserrat for
rent of the Olveston property and that 50% of
the rental sum be paid to the respondent –
Whether the learned trial judge erred in
departing from the general equity rule in
awarding the respondent 75% of the Woodlands
property and in doing so arrived at a decision
which was unreasonable and contrary to law
Result / Order: [Oral delivery]
1. The appeal is allowed only to the extent that
the appellant and the respondent are entitled
to a 50% interest in the Woodlands property.
2. The order as to costs is varied by consent to
a prescribed costs basis instead of an award
of $25,000.00, which was the amount
awarded at the trial in the High Court.
Reason: In this case, the learned trial judge awarded the
property in Olveston to the two parties in equal
shares. His finding was that the parties worked
together from the beginning of the relationship
which dated back to the period when the
respondent was 15 years old. The parties
married afterwards.
The Court stated that an appellate court could
25
only interfere with a trial judge’s finding of fact
if the Court was satisfied that the learned trial
judge misdirected himself or drew erroneous
inferences from the facts or if the judge was
plainly and blatantly wrong or as it is
sometimes more elegantly stated, where the
learned trial judge has exceeded the generous
ambit within which reasonably disagreement is
possible. The Court relied on the case of
Golfview Development Limited v St. Kitts
Development Corporation et al, Saint
Christopher and Nevis High Court Civil Appeal
SKBHCVAP2004/0017 (delivered 20th June 2007,
unreported). The Court held that it is only in
those circumstances where an appellate court
would be in as good a position as the trial judge
to evaluate the evidence and to determine what
inference/s can be drawn from the facts.
With this in mind, the Court had no doubt that
on the facts as found by the learned trial judge
it was open to him to conclude that the parties
shared a common intention that the respondent
will have an interest in the Olveston property
and based on this common intention she acted
to her detriment. There was cogent and
compelling evidence that she did indeed act to
her detriment. It was their new matrimonial
home after the volcanic eruption. The
respondent had testified that they funded the
construction from their personal savings, rent
received from the Amersham house, hurricane
settlement insurance, sale of agricultural
produce and maroon and help from friends,
which evidence the learned trial judge accepted.
The Court had no basis on which to overturn
his finding on this property.
In relation to the Amersham property, the Court
reviewed the findings of fact of the learned trial
judge and considered that the learned judge
carefully analysed the case and applied the
relevant legal principles enunciated in the cases
of Abbott v Abbott [2007] UKPC 53 and Gissing
v Gissing [1971] AC 886 in relation to the
Amersham property. As such, there was no
26
basis to overturn the finding of the learned trial
judge.
On the ground of appeal in so far as it relates to
the order that an account be taken of the rental
paid by Tradewinds Montserrat for the rental of
the Olveston Property and that 50% of the rental
sum plus 10% interest be paid to the
respondent, based on the conclusion that the
respondent was entitled to a 50% interest in the
Olveston property, the Court had no doubt that
the learned trial judge did not err in ordering
that an account be taken of the monies paid by
Tradewinds Montserrat for the rental of said
property.
In relation to the ground of appeal that the
learned trial judge erred in departing from the
general equity rule in awarding the respondent
75% of the Woodlands property, the Court
accepted that the learned trial judge did not
provide reasons for his departure from the
general half share rule when he awarded the
respondent 75% of that property. In those
circumstances, an appellate court is entitled to
review the matter and to seek to determine
whether or not the learned trial judge was
correct to make such an award. The Court, on
reviewing the matter, noted the appellant’s
evidence in which he claimed that he had
instructed the respondent to put title in his
name, in the respondent’s name and in their
son’s name; instead the respondent put the title
of the property in only her name. The appellant
claimed that he decided to build a house on the
land and the respondent borrowed $100,000.00
from her former employer to assist with the
construction of the house. The appellant also
claimed that the house was valued $700,000.00
at the time of trial and that he had paid for all
the materials and labour in the construction of
the house and had furnished it. The respondent
claimed that she had paid the sum of $35,
000.00 for the property at auction. She had
testified that she built the house with a loan
from the bank. The learned trial judge accepted
27
the respondent’s evidence over the appellant’s.
The trial judge found it significant that of all the
matrimonial properties this was the only one
taken by the respondent in her name only.
However, the learned trial judge held that the
appellant had made a substantial contribution
to the acquisition of the house, therefore he
was one quarter share to the property.
The Court, after reviewing the matter in its
entirety, in particular the finding of facts made
by the learned trial judge held there was no
basis on which the judge could have properly
awarded the respondent a 75% share in the
Woodlands property. The Court therefore held
that an appropriate award, given the totality of
the circumstances, would have been to award
the parties 50% share in the property. The
Court relied on Hughes v Hughes (1993) 45 WIR
149.