Court of Appeal Civil Appeal CL-AP 45 of 2011
IN THE COURT OF APPEAL
TURKS AND CAICOS ISLAND
Case No. CL-AP 45/2011
BETWEEN:
THE ATTORNEY GENERAL OF THE TURKS AND
CAICOS ISLANDS
-AND-
(1) SALT CAY DEVCO LTD.
(2) SALT CAY ESTATES LTD.
(3) SALT CAY GOLF CLUB LTD.
(4) SC HOTEL MANAGEMENT LTD.
Before: The Rt. Hon Mr. Justice Zacca - President
The Hon Mr. Justice Mottley - Justice of Appeal
The Hon Mr. Justice Ground -Justice of Appeal
Hearing: 1 May 2012
Judgment: 4 October 2012
Appellant/Plaintiff
Respondents/Defendants
Appearances:
David Phillips QC, Patrick Patterson, Khalila Astwood-Dorsett for the Appellant
Stephen Rubin QC, Conrad Griffith QC and David Cadman for the Respondent
MOTTLEY, J.A.
[1] On 1 May 2012, we dismissed the Application of the Attorney General for
Conditional Leave to appeal to the Judicial Committee of the Privy Council
pursuant to Articles 3 (b) of the Turks and Caicos Islands (Appeal to Privy
Council Order) (1965 S.I. No. 1863) (the Order). Article 3 (b) provides that an
appeal shall lie;
"with the leave of the Court, from any other judgment, whether final or
interlocutory, if, in the opinion of the Court, the question involved in the
appeal is one which, by reason of its great or general importance or
otherwise, ought to be submitted to her Majesty in Council for decision".
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The Application was dismissed on the ground that the Court did not consider the
Application satisfied the requirement that the question involved in the appeal was
one by reason of its great or general importance or otherwise ought to be
submitted to Her Majesty in Council for its decision.
[2] At the hearing of the Application, counsel on behalf of the Respondent
objected to the Application on the ground, inter alia, that the Application was time
barred under the provisions of Article 4 of the Order. We rejected this submission
and promised to put our reasons for so doing in to writing. These reasons are
now handed down.
[3] Article 4 provides:-
"4. Applications to the Court for leave to appeal shall be made by motion
or petition within twenty-one days of the date of the judgment to be
appealed from, and the application shall give all other parties concerned
notice of his intended application."
[4] The decision of the Court of Appeal was delivered on 26 January, 2012;
the 21 day time limit for appealing commenced on that day. The Notice of Motion
seeking conditional leave was filed by the Attorney General on 15 February
2012, within 21 days of the judgment. The Notice was not however served on the
respondents until sometime later. It did not appear that there was any dispute
that the Attorney General first sent an un-filed copy of the Notice of Motion to the
respondents by e-mail on 23 February 2012. Mr. Rubin Q.C. counsel for the
respondents stated that this service was more than 21 days after the date on
which the Court of Appeal delivered its decision. Counsel submitted that the
appellant was required to serve the Notice of Motion on the respondents within
the 21 days as is required by the Act. Further, he submitted that the Court had
no power to extend time.
[5] The gravamen of the Respondents' submission was that the appellant was
required, not only to file his Motion within 21 days, but was also required to serve
it on the respondents within that period of 21 days. He contended that Article 4
of the Order is clear as to 21 day time limit for filing and giving notice to the
respondents. It is the contention of the respondents that they had not seen a
copy of the filed Notice of Motion until more than 21 days after judgment had
been delivered.
[6] Mr. Rubin submitted that the Court of Appeal did not have any power to
extend the time for filing the Notice of Motion under Article 4 of the Order. For
this proposition, he relied on Tremblay v Bank of Nova Scotia Trust Co
(Caribbean Ltd 9199) 58 WIR 29. In considering Article 3 of the Barbados
(Procedure in Appeals to Privy Council) Order 1966 which is identical in terms to
Article 4 of the Turks & Caicos Order, the Court of Appeal in Barbados came to
the conclusion that the provision of the Article was mandatory and consequently
the Court had no jurisdiction to extend time. We do not consider that this case is
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Court of Appeal Civil Appeal CL-AP 45 of 2011
relevant as the Attorney General is not seeking any extension of the time
stipulated in Article 3 of the Order.
[7] In response, Mr. David Phillips QC counsel for the Attorney General,
submitted that what was required was the filing of the Motion within 21 days.
There was no requirement to serve the Notice on the Respondent with that
period.
[8] It appears to the Court that Mr. Rubin was seeking to apply to the
application for leave to appeal to the Privy Council the provisions of section 15
(1) of the Court of Appeal Ordinance Cap 2.01. That section provides:-
"15 (1) In the case of an appeal from any judgment, decree or order of the
Supreme Court in the exercise of its civil jurisdiction, the appeal shall be
brought by the appellant giving notice in writing, within twenty-eight days
of the judgment, decree or order from the appeal is made, to the Registrar
of the Supreme Cowl; and to the opposite party or parties in the action, of
his intention to appeal and also of the general grounds of his appeal."
[9] Section 15 (1) expressly provides the manner in which an appeal from the
Supreme Court to the Court of Appeal is to be brought. To comply with the
requirements of this sub-section, the appeal must be brought by the appellant
within 28 days of the judgment. Further, the requirements for perfecting an
appeal are set out in this section. These are that (a) the appellant must give
notice in writing of his intention to appeal to the Registrar and (b) to the opposite
party within 28 days. Even though the Notice of Appeal is filed within 28 days of
the delivery of the judgment, the appeal is not perfected until the opposite party is
given notice of the appeal within 28 days.
[10] The Court is of the view that Article 4 of the Order only requires that the
Application for leave to appeal has to be made by motion or petition within 21
days of the judgment. If it was intended that service on the respondents should
take place within 21 days of the date of the judgment, the Article would have
expressly provided that, not only should the Application to the Court for leave to
appeal be made by motion or petition within 21 days of the date of the judgment
to be appealed from but that the applicant shall give all other parties concerned
notice of his intended application within the same period of 21 days of the date of
the judgment. The Article only requires the filing of the motion or petition within
21 days.
[11] Article 4 of the Order does not contain any requirements that Notice of the
Appeal must be given to the opposite party within 21 days. All the Article
requires is that the Notice of Motion for leave to appeal must be filed within 21
days. It would be wrong for this Court to impose on an applicant requirements
other than those set out in Article 4. A perusal of the Orders relating to appeals
to the Judicial Committee of the Privy Council which are applicable in other
countries will show that the provisions are standard.
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[12] For the reasons set out above, we are of the view that Article 4 of the
Order requires that notice of motion or petition for leave to appeal shall be made
within 21 days of the date of the judgment from which the appeal is being
brought. The Article did not require notice of the intended application to be given
to the respondents within 21 days.
Zacca, P.
Mottley, J.A.
Ground, J.A.
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