Court name
Court of Appeal of Turks and Caicos Islands
Case number
CL-AP 32 of 2014

Pinnacle Reef Ltd. and Others v. The Proprietors Strata Plan 51 (CL-AP 32 of 2014) [2017] TCACA 11 (15 June 2017);

Law report citations
Media neutral citation
[2017] TCACA 11
Coram
Mottley, P
Stollmeyer, JA
Weekes, JA

IN THE COURT OF APPEAL

TURKS AND CAICOS ISLANDS

CIVIL APPEAL No. 32 of 2014

BETWEEN:

PINNACLE REEF LIMITED

FRANK O'CONNOR SR

FRANK O'CONNOR JR

ROBIN GROSE O'CONNOR                                                 APPLICANT

AND

THE PROPRIETORS STRATA PLAN 51

RESPONDENT

BEFORE:

The Honourable Mr. Justice Mottley,              President

The Honourable Mr. Justice Stollmeyer, Justice of Appeal

The Honourable Mdme Justice Weekes, Justice of Appeal

APPEARANCES:

Mr Stephen Wilson QC for the Applicant      

Mr Conrad Griffiths QC and Mr David Cadman for the Respondent

16, & 21 February 2017; 15 June 2017

JUDGMENT

Stollmeyer JA.

[1]           On 21 February 2017 we dismissed the application of Frank O'Connor Sr, Frank O'Connor Jr and Robin Grose O'Connor (referred to collectively for convenience as "the O'Connors") for a stay of the declaration made and an injunction against Pinnacle Reef Limited ("Pinnacle") and the O'Connors granted by the Court of Appeal on 18 September 2015 in favour of The Proprietors of Strata Plan 51 ("Strata 51") pending an appeal by Pinnacle and the O'Connors to the Her Majesty's Privy Council. An alternative claim that Strata 51 be required to give a cross-undertaking in damages was also dismissed. We also ordered the O'Connors to pay Strata's costs of the application in any event (no matter the outcome of the appeal to the Privy Council), to be taxed if not agreed.

[2]           Determination of the application turns initially on a narrow issue, namely whether, in relation to an appeal to the Privy Council, this Court has jurisdiction to grant a stay of execution at a time other than when granting leave to appeal. It was not raised on behalf of Strata 51 initially, but Mr Wilson for the O'Connors addressed it comprehensively. It is only if this hurdle is surmounted that it becomes necessary to consider the merits of the application.

[3]           Mr Wilson submits that jurisdiction does exist and puts forward four principal bases for so saying: First, the provisions of the Constitution of the Turks and Caicos Islands Chapter 1:01; which he did not pursue; second, the provisions of the Court of Appeal Ordinance Chap 2:01 ("the Ordinance"); third, the Turks and Caicos (Appeals to the Privy Council) Order 1973 ("the Order"); and fourth, the provisions of Section 39 of the Judicial Committee Appellate Rules 2009 as Amended ("the Rules"). He also refers to the decisions in several cases, principally Bibby v Partap, [1996] 1 WLR 931; Wilson v Church (No2) [1879] 12 Ch 454; and Hamill v Lilley [1887] QBD 19, 83.

Background

[4]           Pinnacle and the O'Connors are the owners of a residential apartment at the Pinnacle at Grace Bay, Providenciales.

[5]           Strata 51 applied to the Supreme Court for certain declarations and orders relating to the use of the apartment. The claim was dismissed.

[6]           Strata 51 appealed. On 18 September 2015 the Court of Appeal reversed the decision of the Supreme Court, granted a declaration and ordered an injunction essentially in the following terms:

1 that Pinnacle and the O'Connors may not use or allow the apartment to be used for periods of less than one month whether pursuant to a leaser, licence or any other agreement howsoever described that does not amount to a lease;

2 restraining them from letting or licensing the apartment for periods of less than one month or permitting it to be used otherwise than in accordance with the declaration made.

[7]           Pinnacle and the O'Connors applied for leave to appeal to the Privy Council. On 04 February 2016 the Court of Appeal refused leave.

[8]           Pinnacle and the O'Connors then applied direct to the Privy Council for leave to appeal and were granted Special Leave on 12 October 2016.

[9]           They filed their appeal and the appeal has progressed to the stage where the Record and all other documentation, including written submissions, have been filed except for an Agreed Statement of Facts, and the parties have been notified of a "window of opportunity" for a hearing date later in 2017.

[10]         The present Application for a stay was filed on 22 December 2016 supported by the affidavit of Frank O'Connor Sr. That was fifteen months after judgment was given by the Court of Appeal; and ten months after the Court of Appeal refused leave to appeal to the Privy Council. We are not told the date on which the application for Special Leave was made direct to the Privy Council, but the present application was made two months after the Privy Council granted it. No application for a stay was made on any of those occasions. We were told that the application was not made until the Privy Council had granted special leave because it was not seen as necessary at the time, or that having obtained special leave the application stood a better chance of succeeding. Neither of those reasons carry any particular attraction. The consequences of the orders made by the Court of Appeal must have been forseeable.

[11]         The O'Connors now complain that they are losing rental income as result of the judgment of the Court of Appeal and apply for a stay of the declaration and injunction.

Analysis - Jurisdiction

[12]         It is helpful to look first at the jurisdiction of the Court of Appeal in civil cases. The Ordinance provides as follows:

"Appeals from the Supreme Court in civil proceedings

4. Subject to the provisions of this Ordinance, the Court shall have jurisdiction to hear and determine appeals from any judgment or order of the Supreme Court given or made in civil proceedings, or to order a new trial if the Court thinks fit, and, for all purposes of and incidental to the hearing and determination of any such appeal and the amendment, execution and enforcement of any judgment or order made thereon, the Court shall, subject as aforesaid, have all the powers, authority and jurisdiction of the Supreme Court:

Provided that no judgment or order of the Supreme Court shall be altered or reversed in any case in which the Court is satisfied that the effect of the judgment or order is to effect substantial justice between the parties".

[13]         The jurisdiction of the Court of Appeal is solely by reference to its statutory provisions: Taylor v Lawrence [2002] 3 WLR 640 at 642B; Inversiones Globales Ltd v Hape [2000] TCAJ No. 12 Civil Appeal No 1 of 2000 at para 24. Since the Court is a creature of statute, it has no inherent jurisdiction, and the view has been expressed that any jurisdiction not expressly conferred may be said to have been impliedly excluded by the relevant statute; see Electrotec Services Ltd v Issa Nicholas (Grenada) Ltd [1998] 1 WLR 202 at 206D. Any inherent jurisdiction it may possess is the power to determine its own procedure and practice: Taylor at 642E. Consequently, its substantive jurisdiction is confined to the provisions of Section 4. More important, however, is that Section 4 is concerned with appeals to the Court of Appeal from the Supreme Court, and not appeals from the Court of Appeal to the Privy Council.

[14]         Jurisdiction in relation to appeals to the Privy Council is conferred by Sections 4, 5 and 7 of the Order

"Application for leave to appeal

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 applicant shall give all other parties concerned notice of his intended application.

Conditional leave to appeal

5.             Leave to appeal under section 3 of this Order shall, in the first instance, be granted by the Court only-

(a) upon condition of the appellant, within a period to be fixed by the Court but not exceeding ninety days from the date of the hearing of the application for leave to appeal, entering into good and sufficient security to the satisfaction of the Court in a sum not exceeding 500 pounds sterling for the due prosecution of the appeal and the payment of all such costs as may become payable by the applicant in the event of his not obtaining an order an order for final leave to appeal, or of the Judicial Committee ordering the appellant to pay costs of the appeal (as the case4 may be); and

(b) upon such other conditions (if any) as to the time or times within which the appellant shall take the necessary steps for the purposes of procuring the preparation of the record and the dispatch thereof to England as the Court, having regard to all the circumstances of the case, may think it reasonable to impose.

[15]         The jurisdiction to grant leave thus conferred is not unfettered. There is ample authority for this and one example is that the Court cannot extend beyond ninety days the time for an appellant entering into security Raulstone v Panton (Privy Council Appeal 16 of 1977, delivered 27 July 1979).

[16]         Section 7. of the Order vests in the Court of Appeal a limited statutory jurisdiction to grant a stay of execution:

"Stay of execution

7. Where the judgment appealed from requires the appellant to pay money or do any act, the Court shall have power, when granting leave to appeal, either to direct that the said judgment shall be carried into execution or that the execution thereof shall be suspended pending the appeal, as to the Court shall seem just, and……."

[17]         This gives the Court of Appeal jurisdiction to exercise its discretion only at a particular time or stage of the proceedings. It is restricted to doing so at the time of granting conditional leave and does not extend to a time after it has done so. Further, the jurisdiction is limited to certain specified cases.

[18]         Mr Wilson, however, refers in particular to Section 6 of the Order:

"Powers of a single judge

6. A single judge of the Court shall have power and jurisdiction —

(a)           to hear and determine any application to the Court for leave to appeal other than an application for leave under section 3(b) of this Order; and

(b)           generally in respect of any appeal pending before her Majesty in Council, to make such order and to give such other directions as he shall consider the interests of justice or the circumstances of the case require:

Provided that any order, direction or decision made or given in pursuance of this section may be varied, discharged or reversed by the Court when consisting of three judges which may include the judge who made or gave the order, direction or decision."

[19]         Section 6 of the Order permits a single judge to hear and determine certain matters, but it would be more than passing strange to confer jurisdiction on a single judge which has not been conferred on the full Court. In my view, Section 6 does not do so. Furthermore, any decision of a single judge is subject to review by the full Court.

[20]         Mr Wilson then places particular reliance on the provisions of Section 39 of the Rules. This reads as follows:

"Stay of execution or conservatory order

39           (1) Any appellant who wishes to obtain a stay of execution of the order appealed from or some conservatory order pending an appeal must seek it from the court below in the first instance.

(2) In exceptional circumstances the Judicial Committee may grant a stay of execution or a conservatory order"

[21]         Rules of Court are a source of procedural law the function of which is to prescribe and regulate the machinery or manner in which legal rights or status and legal duties may be enforced or recognised by a court of law. Since they are procedural in character and effect, they cannot confer, take away, alter or diminish any existing jurisdiction, rights or duties created or conferred by substantive law: Everett v Griffiths [1924] 1 KB 941 at 957; Inversiones at para 26.

[22]         The Rules therefore cannot confer jurisdiction. The effect of Section 39 (which would better be read as "Rule 39") is to regulate the manner in which applications of this nature are to be dealt with and are obviously intended to avoid taking up the time of the Judicial Committee unnecessarily. The Rules do, and can do, nothing more than that.

[23]         They relate purely to the matters of procedure. Rule 37, for example, provides that if the Judicial Committee grants permission to appeal it can order security for costs (37(1)). If, however, the Court of Appeal has granted leave, then security for costs is a matter for that court. It is instructive that the Order provides expressly for the securing the costs of prosecuting the appeal at Section 5(a) and otherwise confers jurisdiction relative to granting leave to appeal.

[24]         I turn now to the judgments referred to in support of the submissions on behalf of the O'Connors.

[25]         Bibby was an appeal to the Court of Appeal of Trinidad and Tobago in which the judge at first instance had made an order for summary possession. The Court of Appeal gave leave to appeal but dismissed an application for a stay of execution pending hearing of the appeal on the ground that it had no jurisdiction to do so.

[26]         The Privy Council ordered the stay but held that the Court of Appeal had the jurisdiction to grant it under the then Order 59 rule 22(1). This rule provided that the Court of Appeal could order a stay despite Order 59 rule 14(4) providing that where an application could be made under the rules to either the court below or the Court of Appeal, it was not to be made to the Court of Appeal in the first instance except in special circumstances which made it impossible or impracticable to apply to the court below (Bibby p. 934 E, H). This was obviously a means of relieving the Court of Appeal of the burden of excessive applications.

[27]         Quite apart from the circumstances in Bibby being substantially different, Order 59 rule 22(1) permitted the Court of Appeal to order a stay an order of the court below. That does not translate to the Court of Appeal in the present case having jurisdiction to order a stay at some time after having granted leave to appeal to the Privy Council. That jurisdiction is limited to granting a stay at the time of granting leave, as it is empowered to do under Section 7 of the Order.

[28]         Bibby is therefore of no assistance to the O'Connors.

[29]         In Wilson, the appellant proposed to present a petition to the House of Lords to appeal against a judgment of the Court of Appeal and sought an order that all proceedings under the judgment (except the order for costs) be stayed until determination of the appeal, on the undertaking to present the petition within one month.

[30]         The Court of Appeal granted the order. The issue of jurisdiction did not arise, but it is important to note that the application for the stay was being made before the petition for leave was filed, not after leave had been granted, much less after the appeal had progressed to the stage of the appeal in the present case.

[31]         Wilson is therefore does not assist the O'Connors.

[32]         In Hamill, notice had been given to the High Court of an appeal to the Court of Appeal and Lilley then obtained orders from first a master and then a judge in chambers staying execution pending payment into court of security for costs. These orders were discharged by the Divisional Court on the ground that neither the master nor the judge had jurisdiction to make them. Lilley then applied to the Court of Appeal which made the order on the ground that the application should be solely to the Court of Appeal and not the judge in chambers or the Divisional Court.

[33]         The report of the judgment does not disclose the stage to which the appeal to the House of Lords had progressed. Nor does it give any idea of the rule(s) pursuant to which the application or was made. All it says is that notice of appeal had been given. Consequently, Hamill does not assist the O'Connors whose appeal has progressed almost to the point of hearing.

[34]         None of these decisions provide support for the submissions on behalf of the O'Connors. Without exception, there is not one instance in which it was held that the-or a - Court of Appeal has jurisdiction to make an order of the nature sought in the present case after the grant of special leave to appeal has been granted by the Privy Council, and the appeal has been filed and processed for hearing. Undeniably, that is the position here.

[35]         There is, however, the judgment of the Privy Council in Crawford and Others v Financial Institutions Services Ltd [2003] UKPC 49. This decision is helpful on the issue.

[36]         Crawford was concerned with the jurisdiction of the Jamaican Court of Appeal in the context of an appeal as of right to the Privy Council. The relevant provisions of the Jamaican statutes and rules are in pari materia with, if not identical to, those of the Turks and Caicos Islands.

[37]         Crawford's claim failed at first instance and the appeal was dismissed. Crawford then obtained from the Court of Appeal on 08 October 2001 conditional leave to appeal to the Privy Council at which time the judgment was stayed, except the order for payment of costs by Crawford.

[38]         Crawford complied with the conditions on which leave was granted, but leave was not made final. Crawford, however, had not paid the costs of the initial trial and Financial Institutions Services applied to, and obtained from, Downer JA, a single judge of the Court of Appeal, an order on 12 February 2002 staying all proceedings in, and the appeal to, the Privy Council until those costs were paid.

[39]         Crawford then applied to the Court of Appeal to have this order set aside and on 22 April 2002 the Court of Appeal ordered that the order of Downer JA of 12 February 2002 not come into effect until 60 days from 22 April 2001, and that the proceedings be further stayed until payment of the costs

[40]         Financial Institutions Services had in the meantime, on 12 April 2001, applied to the Court of Appeal for an order rescinding the conditional leave to appeal and/or that the Court of Appeal order of 08 October 2001 for a stay be discharged. The full court made those orders on 18 November 2002

[41]         On 06 February 2003 the Privy Council heard an application by Crawford for special leave to appeal (Crawford and Others v Financial Institutions Services Ltd (Jamaica) 2003 UKPC 13) and the Panel of three adjourned the application to be heard before a panel of five.

[42]         Then, on 17 March 2003, Walker JA, sitting as a single judge, ordered that the judgment be stayed on the same terms as the stay of execution granted at conclusion of the trial. The Privy Council in its decision of 19 June 2003 in Crawford at [11] was "... satisfied that this amendment can have no effect on the outcome of this petition."

[43]         Ultimately, the Privy Council in Crawford at [13] had this to say:

It is clear that the orders of Downer JA and the Court of Appeal of 12 February 2002, 22 April 2002 and 18 November 2002 were not made pursuant to the powers given by section 4 of the Jamaica Appeals Procedure Order [section 5 of the Order] which are confined to imposing a condition of entering into security not exceeding £500 for the due prosecution of the appeal and the payment of costs in respect of the appeal and conditions as to the times for preparing the record and despatching it to England. Nor were the orders of 12 February 2002 and 22 April 2002 made pursuant to section 6 [section 7 of the Order] because the power given to the Court of Appeal by that section is a power to stay the execution of the judgment and is not a power to stay the proceedings in the appeal. Moreover the Court of Appeal did not have power under section 11 [ section 12 of the Order, which is not relevant in the present case] to make the order of 18 November 2002 rescinding the conditional leave to appeal granted on 8 October 2001, because that power arises when the appellant has failed to apply with due diligence to the Court of Appeal for an order granting him final leave to appeal and it was the court's own order of 22 April 2002 staying the proceedings in the appeal which prevented the petitioners from applying for final leave to appeal. Therefore their Lordships are satisfied that neither Downer JA nor the Court of Appeal had power under the Jamaica Appeals Procedure Order to make the orders which were made subsequent to the Court of Appeal's order of 8 October 2001 granting conditional leave to appeal.

[33]         It is clear from Crawford that the jurisdiction of the Court of Appeal is limited to those instances set out in the Order, and sections 5 and 7 in particular. That accords with the conclusion in Raulstone (see paragraph 15 above). It is also clear that the jurisdiction to grant a stay is confined to the occasion on which the Court of Appeal is hearing an application for conditional leave. In this case, the Court of Appeal having refused conditional leave it is to be regarded as functus officio and without any jurisdiction to hear an application for a stay. But even if not so confined, and on a proper interpretation of section 7 jurisdiction is held to exist at the time final leave is being granted, then first, this Court cannot now grant final leave and second, in any event jurisdiction cannot exist after the appeal has been filed and the appeal has progressed to the stage of the Record and Submissions having been filed, and a provisional date of hearing fixed. In my view, the appeal is firmly within the jurisdiction of the Privy Council and the Court of Appeal has none.

[45]         Having come to those conclusions, and for these reasons, the application was dismissed. It was therefore not necessary to decide the merits of the application and the issue of whether a stay should be granted.

[46]         As to the issue of the costs of the application, Mr Griffiths submitted that Strata 51 should have its costs no matter what the outcome of the appeal to Her Majesty's Privy Council. Mr Wilson submitted that the costs should be costs in that appeal. On balance, and having particular regard to the issue of jurisdiction, it did not appear that this Court should make an order in those proceedings and we therefore ordered that the Applicants pay to The Proprietors of Plan 51 its costs of the application, to be taxed if not agreed.

Stollmeyer JA

I Agree

Mottley P

I agree

Weekes JA