Exclusive Holiday of Elegance Ltd v ASE Metals NV

• Jurisdiction: Jamaica
• Judge: Brooks JA,Panton P,Morrison JA
• Judgment Date: 24 January 2014
• Neutral Citation: JM 2014 CA 3
• Docket Number: SUPREME COURT CIVIL APPEAL NO 142/2012 MOTION NO 18/2013
• Court: Court of Appeal (Jamaica)
• Date: 24 January 2014

Between

Exclusive Holiday of Elegance Limited

Applicant

and

Ase Metals NV

Respondent

[2014] JMCA App 2

Before:

The Hon Mr Justice Panton P

The Hon Mr Justice Morrison JA

The Hon Mr Justice Brooks JA

SUPREME COURT CIVIL APPEAL NO 142/2012

MOTION NO 18/2013

JAMAICA

IN THE COURT OF APPEAL

CIVIL PROCEDURE - Summary judgment - Goods sold and delivered but not paid for - Leave to appeal to Her Majesty in Council - Constitution of Jamaica,s. 110 - Whether motion filed out of time - Whether summary judgment constitutes a final judgment

Raphael Codlin and Miss Annishka Biggs instructed by Raphael Codlin and Company for the applicant

Nigel Jones and Miss Kashina Moore instructed by Nigel Jones and Company for the respondent

Panton P

1 I have read, in draft, the judgment of Brooks JA. I agree with his reasoning and conclusion and have nothing to add.

Morrison JA

2 I too have read the draft judgment of Brooks JA and agree with his reasoning and conclusion. I have nothing to add.

Brooks JA

3 On 27 September 2013, this court ruled that ASE Metals NV (ASE), a corporate entity with its registered offices in Belgium, was entitled to summary judgment against Exclusive Holiday of Elegance Limited (Exclusive Holiday), a company incorporated and operating in Jamaica. The sum involved is US$885,000.00, being the sum that the court found that the parties had agreed that Exclusive Holiday should pay for goods that ASE had sold to it. Exclusive Holiday is aggrieved by the decision, and on 16 October 2013, filed the present motion seeking permission to appeal to Her Majesty in Council. Such permission is provided for in section 110 of the Constitution of Jamaica.

4 ASE contested the motion on two main bases. It first filed a notice of preliminary objection to the motion. Its objection is that the notice of motion, not having been served on it within 21 days after the judgment of the court, is out of time and therefore cannot be entertained. Secondly, it argued that the judgment of this court, granting summary judgment to one of the parties, did not constitute a final decision in a civil matter, and therefore does not grant a right to appeal to Her Majesty in Council.

5 The court reserved its decision on the preliminary point and heard the substantive application, promising to give its decision at a later date. Subsequent to reserving, it received further written submissions from Mr Codlin on behalf of Exclusive Holiday. Having reviewed record and all the submissions the court now fulfills its promise.

The preliminary objection

6 The preliminary objection arose because, although Exclusive Holiday filed its notice of motion within 21 days of the delivery of the judgment, it did not serve a notice of its intention to apply on ASE within that time frame. The 21-day period is stipulated by section 3 of the Jamaica (Procedure in Appeals to Privy Council) Order in Council 1962 (hereafter called ‘the Order in Council’).

7 Mr Jones, on behalf of ASE, submitted that service within 21 days is a precondition for the court to have jurisdiction to hear the motion. He argued that failure to satisfy that condition doomed the motion to failure. Learned counsel relied, as authority for his submissions, on The University of Ceylon v E F W Fernando S C 568 (delivered 31 July 1957).

8 Mr Codlin drew a distinction between the filing of the notice of motion and the hearing of the application. He submitted that the notice of motion is not the application, and that the application is what is made to the court pursuant to the notice of motion. He argued that it is the notice of motion that must be filed within 21 days of the judgment sought to be impugned whilst the application is itself heard on a date fixed by the court. Learned counsel submitted that section 3 does not require notice to be given of the applicant's intention to file the notice of motion. It is notice of the hearing of the application, he submitted, which must be served on the respondents to the application. It is only on receiving such a notice, he continued, that the respondents can reasonably be expected to take such steps as they may wish to take. Mr Codlin submitted that the objection was without merit.

9 The preliminary objection requires an interpretation of section 3. The section states as follows:

‘3. 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 appealed from, and the applicant shall give all other parties concerned notice of his intended application.’

The specific question to be answered in that assessment is whether the 21 days stipulated in the section also refers to the time within which notice is to be given to the other parties concerned.

10 If the answer is in the affirmative then any service of the notice after the expiry of the 21 days would render the court impotent to hear the motion. This is because it has no authority to extend the time stipulated in the section (see Chas E Ramson Ltd and Another v Harbour Cold Stores Ltd SCCA No 57/1978 (delivered 27 April 1982)).

11 The essence of Mr Jones' submission is that if the application should be made within 21 days of the date of the judgment, notice of intention to make that application can only be given before the expiry of that time. There are cases in which that interpretation has been presumed to be correct as the question that was assessed by the court is whether the notice given was specific enough.

12 In Robertson v Isaacs (1982) 30 WIR 114, counsel for the respondent to an application for permission to appeal to the Privy Council, took a preliminary objection to the procedure adopted by the applicant. The objection was summarised by Peterkin CJ of the Court of Appeal of Eastern Caribbean States. The summary is at page 116g of the report:

‘He argued that he should have been served with a copy of the notice of motion itself within 21 days, and contended that the notice which was served on him was the notice which should have been served when one appealed directly to the Privy Council, and not the notice applying to this court for leave. In short, that the notice served on him was not sufficient and was not in compliance with r 4.’

Rule 4 to which the learned judge referred, is identical in its terms to section 3 of the Order in Council.

13 The difference between Robertson and the present case is that, unlike Exclusive Holiday, Mr Robertson did give notice to the other party of his intention to file the notice of motion. Isaacs' complaint was that the notice was not in the appropriate form and therefore could not have been considered as having been given. The issue raised in that case was, therefore, more in respect of the sufficiency rather than the timing of the service of the notice. The court ruled that the notice was a sufficient compliance with the rule and dismissed the preliminary objection. The authorities that were discussed in relation to the objection were not concerned with appeals to the Privy Council.

14 There is, however, dictum in Lesmond v R (No 2) (1967) 10 WIR 259 which suggests that service of the notice of motion may be done after the expiry of the 21 days. The relevant rule in that case was also in terms identical to section 3. There, the notice of motion was filed on the 21 ^st day. Oral notice of the motion was, however, given thereafter, and written notice was not given until the day before the hearing. Lewis CJ, in delivering the judgment of the Court of Appeal of West Indies Associated States, commented on the situation but did not...