Bartholomew Brown and Another v Jamaica National Building Society

• Jurisdiction: Jamaica
• Judge: Phillips JA,Sinclair-Haynes JA,P Williams JA
• Judgment Date: 29 July 2016
• Neutral Citation: [2016] JMCA App 23
• Court: Court of Appeal (Jamaica)
• Date: 29 July 2016
• Docket Number: SUPREME COURT CIVIL APPEAL NO 93/2014 MOTION NO 12/2015

[2016] JMCA App 23

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Miss Justice Phillips JA

The Hon Mrs Justice Sinclair-Haynes JA

The Hon Miss Justice P Williams JA (AG)

SUPREME COURT CIVIL APPEAL NO 93/2014

MOTION NO 12/2015

Between

Bartholomew Brown

1st Applicant

and

Bridgette Brown

2nd Applicant

and

Jamaica National Building Society

Respondent

Phillips JA

1 By way of notice of motion, the applicants had sought leave to appeal against decisions of this court, delivered on 13 April 2015 and 18 March 2016, to Her Majesty in Council, pursuant to sections 110( 1) and 110(2) of the Jamaica (Constitution) Order in Council, 1962 (the Constitution).

Background

2 On 21 April 2015, they filed a notice of motion with an affidavit in support, seeking leave to appeal the decision of this court in SCCA No 93/2014, App No185/2014, delivered 13 April 2015, to Her Majesty in Council. This application was before the court on 30 November 2015, but was not addressed in the judgment delivered 18 March 2016, because the said notice of motion was not placed among the several documents we were invited to peruse in this matter.

3 On 21 March 2016, the applicants, taking full advantage of this oversight, filed an amended notice of motion, with an amended affidavit in support, seeking leave to appeal the decision handed down by this court on 18 March 2016, in SCCA No 93/2014, App Nos 126 & 197/2015 ( [2016] JMCA App 7 ), to Her Majesty in Council, on the grounds that: (i) judges failed to hear them, failed to disclose their interests in the matter, were biased and failed to recuse themselves after a complaint was made that they were biased; (ii) Mr Earl Jarrett, General Manager of the respondent, was in breach of section 9(1)(a) and (b) of the Justices of the Peace (Official Seals) Act and the Justice of the Peace (Appointment and Code of Conduct) Rules wherein, he witnessed an affidavit sworn to by Mr Byron Ward, Legal Counsel and Corporate Secretary of the respondent, and that this court in its decision of 18 March 2016, reaffirmed that affidavit; (iii) the decision was interlocutory; (iv) the issue to be decided is of great public importance as it relates to judges failing to disclose their interest in cases and the Justice of the Peace (Appointment and Code of Conduct) Rules, and ought to be submitted to Her Majesty in Council; and (v) the matter is a civil proceeding of value exceeding the value of $1000.00.

4 On 24 March 2016, the applicants filed written submissions in support of their amended notice of motion. They argued that the preliminary objection taken by therespondent's attorney that they were seeking to re-litigate issues already decided, was in fact an abuse of the process of the court, and prejudiced them (the applicants). They again argued that the judges were biased, sitting in their own cause, and had failed to disclose their interest in the matter. They also reiterated that Mr Jarrett, in witnessing Mr Ward's affidavit, was corrupt and acted unlawfully as a Justice of the Peace. The applicants also contended that the judgment of 18 March 2016 is a replica of the judgment of 4 March 2010. They stated that leave to appeal to Her Majesty in Council should be granted because guidance is required, in the instant case, as it relates to the code of conduct of judges and Justices of the Peace.

5 In a letter to the registrar of this court dated 27 May 2016, Mr Garth McBean, QC for the respondent, indicated that on 26 May 2016, they were served with, inter alia, the applicants' amended notice of motion no 12/2015. However, they filed no written submissions in this motion. Mr McBean indicated that, in his view, all the matters complained of had already been determined and should not be re-listed.

6 The applicants used the fact that the notice of motion to appeal to Her Majesty in Council was not addressed in the judgment of 18 March 2016, to obtain an adjournment of their trial in the court below to 28 May 2018, for four days. It has been brought to our attention that the applicants had filed a re-issued amended notice of appeal for SCCA No 93/2014, App No 185/2014 on 26 May 2016. However, this court has already ruled on the manner in which further matters filed by the applicants are to be dealt with, in the judgment delivered 18 March 2016, and so that appeal will not be canvassed in this judgment.

7 Although the notice of motion filed 21 April 2015, was before the court on 30 November 2015, the amended notice of motion filed 21 March 2016, sought to challenge both judgments delivered 13 April 2015 and 18 March 2016, and in our view, represents permission for a further application filed by the applicants. As a consequence, this application for leave to appeal to Her Majesty in Council is being dealt with on paper pursuant to:

• (i) orders nos 2 and 3 in the judgment delivered on the 18 March 2016, which prohibited the applicants from making any further applications without first obtaining permission from this court and directed that any further applications made by the applicants are to be considered on paper; and

• (ii) rule 1.7(2)(i) of the Court of Appeal Rules, 2002 (CAR) which states that except where the CAR provides otherwise, this court may deal with a matter without the attendance of any parties.

Discussion and analysis

8 Appeals from decisions of this court lie to Her Majesty in Council pursuant to

section 110 of the Constitution which explicitly provides that:

‘110 (1) An appeal shall lie from decisions of the Court of Appeal to Her Majesty in Council as of right in the following cases-

• (a) where the matter in dispute on the appeal to Her Majesty in Council is of the value of onethousand dollars or upwards or where the appeal involves directly or indirectly a claim to or question...