Alexander Okuonghae v University of Technology Jamaica

• Jurisdiction: Jamaica
• Judge: Panton P,Phillips Ja,Sinclair-Haynes
• Judgment Date: 29 May 2015
• Neutral Citation: JM 2015 CA 59
• Docket Number: APPLICATION NO 10/2015
• Court: Court of Appeal (Jamaica)
• Date: 29 May 2015

[2015] JMCA App 22

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT CIVIL APPEAL NO 1/2015

Before:

The Hon Mr Justice Panton P

The Hon Miss Justice Phillips JA

The Hon Mrs Justice Sinclair-Haynes JA (AG)

APPLICATION NO 10/2015

Between

Alexander Okuonghae

Applicant

and

University Of Technology, Jamaica

Respondent

Applicant in person

Gavin Goffe and Jermaine Case instructed by Myers Fletcher and Gordon for the respondent

CIVIL PROCEDURE - Appeal - Application for permission to appeal - Whether proper application before this court - Whether judgment by lower court was interlocutory or final - Judicature (Appellate Jurisdiction) Act, S. 11(1)(f) - Court of Appeal Rules 2002, R.1.8(1), 1.11(1)

Panton P

1 I have read in draft the judgment of my learned sister Phillips JA. I agree with her reasoning and conclusion. There is nothing that I can usefully add.

Phillips Ja

2 On 16 April 2015, the applicant appeared before us on a notice of application for permission to appeal inter alia, the judgment of McDonald-Bishop J, dated 19 September 2014, in which the claim was dismissed and judgment entered for the respondent. At the hearing of the notice of application for permission to appeal, counsel for the respondent, Mr Goffe, raised a preliminary issue which the court thought ought to have been determined before hearing the submissions of the applicant. Counsel for the respondent, submitted that the applicant had a right of appeal, since the judgment entered by McDonald-Bishop J, was a final judgment. Consequently no permission to appeal to the court was required. Instead, the proper application to have been made by the applicant was an application for an extension of time within which to file notice and grounds of appeal.

3 The crucial issue before us therefore, is whether the proper application was before this court. We have to determine whether the judgment entered by McDonald-Bishop J, was interlocutory in nature or a final determination of the claim. The nature of the judgment will determine whether the applicant required permission to appeal and the applicable time period within which to file the appeal. Whether a judgment is interlocutory or final in nature will be determined by the “application approach” which has been the settled approach in these courts for many years and utilized consistently. This judgment does not therefore address the merits of the appeal, as we have not yet heard any arguments on the substantive grounds of the appeal filed herein.

4 Previously, on 8 January 2015, an application for permission to appeal and a stay of execution of the judgment of McDonald-Bishop J was refused by Frank Williams J, on the basis that the application was misconceived. Subsequently, the applicant, acting in person, filed on 12 January 2015 and 21 January 2015, notice of appeal and notice of application for permission to appeal, respectively.

5 In the event that the judgment of McDonald-Bishop J was interlocutory, section 11(1)(f) of the Judicature (Appellate Jurisdiction) Act (JAJA) requires that the applicant seek permission to appeal from either a Supreme Court judge or from the Court of Appeal. Further rule 1.8(1) of the Court of Appeal Rules (CAR) requires that the applicant apply for permission to appeal within 14 days of the date of the order against which permission to appeal is sought. The applicant would then be required to file his notice of appeal within 14 days of the date of permission having been granted. In this instance, as indicated above, the applicant sought permission below, which was refused by Williams J, thus the applicant would have been required to seek permission to appeal within 14 days of the date of that order. The applicant would have satisfied that requirement, having filed his notice of application for permission to appeal on 12 January 2015.

6 On the other hand, if the judgment of McDonald-Bishop J was final, the applicant, in accordance with rule 1.11(1)(c) of the CAR, having a right of appeal, that is, where permission to appeal is not required, would have been required to file his notice of appeal within 42 days of the date the order of McDonald-Bishop J was served on him. Thus, having not filed his notice of appeal until 12 January 2015, he would require an extension of time from the court in order to file the notice and grounds of appeal, or with that application, a further request that the notice and grounds of appeal already filed on 12 January 2015, stand as having been properly filed.

Background

7 The decision of McDonald-Bishop J emanates from the applicant's claim form and particulars of claim, filed on 23 March 2010 in the Supreme Court. On 11 May 2010, the respondent filed a defence. On 20 April 2012, the applicant filed an amended claim form and amended particulars of claim adding an employee of the respondent “Utech” as the '2 ^nd defendant”. That notwithstanding, the applicant made an ex parte application to Batts J for the 2 ^nd defendant to be added to the claim, which was granted. The order was however later set aside at an inter partes hearing by Mangatal J.

8 Consequently, on 19 December 2012, the applicant filed a further amended claim form and particulars of claim, removing the 2 ^nd defendant as a party to the suit/claim claimed the following:

• ‘1. Damages for wrongful, and/or unlawful , and/or unjustified , and/ or unfair dismissal;

• 2. Damages for breaches and/or failure to observe principles of fairness, reasonableness and natural justice arising from the discrimination, bias, unfair treatment and victimization of the Claimant by servants, agents and/or employees of the Defendant during the period 2001 to 2009;

• 3. Damages for breach of contract of employment by failing, refusing and/ or frustrating the process of evaluation of the Claimant by servants, agents and/or employees of the Defendant and thereby depriving the Claimant of consideration for promotion to the position of Technical Officer-Mechanical/Chemical in the faculty or to any other position despite his sterling performance and contrary to the ordinances and/or established policies and practices of the Defendant;

• 4. Damages for mental and emotional torment and suffering suffered by the Claimant resulting from the unfair and malicious conduct and actions of the servants, agents and/ or employees of the Defendant;

• 8. [sic] Damages for negligence, failure and/or refusal to ensure that efficiency and good order was maintained and/or steps taken as were necessary and/or reasonable to safeguard the interests of the Defendant in the circumstances where the Claimant had invoked the special appeals process to the President of the Defendant regarding financial aid and barring the Claimant from entering the Defendant's Campus, in his pursuit of the Master of Philosophy in Pharmaceutics course.

• 9. Damages for wrongfully, unlawfully , unjustifiably and unfairly de-registering the claimant from the Master of Philosophy in Pharmaceutics Programme.

• 10. Legal Costs paid to Aisha N.M. Mulendwe, Attorney-at-Law in the sum of $108,000.00 and continuing .

• 11. Damages for deprivation of health insurance and other benefits enjoyed by the Claimant;

• 12. Damages for libel arising from the Defendant's servant, agent and/or employee the 2 ^nd Defendant Dr. Nilza Justiz-Smith publishing and circulating false damming [sic] statements contained in correspondence dated April 15, 2009 namely: ‘has a history of violence on this campus’, causing the Claimant to be wrongly and unfairly punished by being suspended pending a hearing that was never convened, and causing other professionals in his faculty to distance themselves from him, making the communication and working environment very untenable, uncomfortable and at times unproductivity [sic].

• 13. Damages for loss of earning and future earnings and/or alternative employment commensurate to the Claimant's qualifications and work experience, and/or resulting, mental anguish, pain and suffering;

• 14. Aggravated damages and/or exemplary damages;

• 15. Interest on general damages at the rate of 6% per annum;

• 16. Interest on the special damages at the rate of 29.99% per annum it being the rate charged by the Claimant's banker, the National Commercial Bank Jamaica Limited;

• 17. Costs.’

9 By written submissions, the applicant, through his then attorney-at-law indicated that the following remedies which were initially included in the further amended claim form and particulars of claim would no longer be pursued. They are:

1

‘Damages for wrongful, and/or unlawful , unjustified and/or dismissal . 2. Damages for mental and emotional torment and suffering suffered by the claimant resulting from the unfair and malicious conduct and actions of the servants, agents and/or employees of the Defendant. 3. Legal Costs paid to Aisha N.M. Mulendwe, Attorney-at-Law in the sum of $108,000.00 and continuing . 4. Damages for deprivation of health insurance and other benefits enjoyed by the Claimant;’

10 The matter was heard on 2, 3 and 4 October, 10 and 20 December 2013 and 19 September 2014, before McDonald-Bishop J. On the evidence at the trial, it was revealed that the applicant had been employed to the respondent as a Laboratory Technologist in the faculty of Engineering and Computing for the period 13 August 2001 to 5 September 2009. The relationship was governed by a contract which expressly provided for termination of the contract of employment by either party, giving one month's notice in writing.

11 On 4 August 2009, the respondent gave the applicant one month's written notice of the termination of the employment contract, to take effect on 5 September 2009. By the terms of the written notice, the applicant was not required to attend work for the period of the notice. Accordingly he was given salary in advance for the period...