Gerville Williams and Others v Commissioner of Independent Commission of Investigations and Others
| Jurisdiction | Jamaica |
| Judge | McIntosh JA,Morrison JA |
| Judgment Date | 17 March 2014 |
| Neutral Citation | JM 2014 CA 30 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | CIVIL APPEAL NO 79/2012 APPLICATION NOS 58/2013 AND 140/2013 |
| Date | 17 March 2014 |
In the Matter of an application for Administrative Orders Pursuant to the Jamaica (Constitution) Order in Council, 1962
and
In the Matter of sections 21 and 33 of The Independent Commission of Investigations Act 2010
and
and
[2014] JMCA App 7
The Hon Mr Justice Morrison JA
The Hon Mrs Justice McIntosh JA
The Hon Mr Justice Brooks JA
CIVIL APPEAL NO 79/2012
APPLICATION NOS 58/2013 AND 140/2013
JAMAICA
IN THE COURT OF APPEAL
SUPREME COURT
CONSTITUTIONAL LAW - Constitutional Orders - Application for - Failure to comply with order under INDECOM Act - Breach of constitutional right against self incrimination and to silence - Whether appellants complied with time period to file appeal - Whether prejudice will be suffered from delay in filing record of appeal - Court of Appeal Rules 2002, Rule 1.7(2)
Chukwuemeka Cameron instructed by Carolyn C. Reid & Co for the appellants
Richard Small and Mrs Shawn Wilkinson instructed by Wilkinson & Co for the 1st respondent
Miss Althea Jarrett instructed by the Director of State Proceedings for the 2nd respondent
The appellants were the claimants in Supreme Court Claim No HCV 06344/2011, while the 1 st , 2 nd and 3 rd respondents were the defendants. The 3 rd respondent did not appear and has taken no part in this aspect of the proceedings.
By its judgment given on 25 May 2012, the full court of the Supreme Court dismissed the appellants' claim, with no order as to costs. The appellants filed notice and grounds of appeal against this judgment on 13 June 2012.
By notice filed on 31 May 2013, the 1 st respondent applied for an order dismissing the appeal for want of prosecution (application no 58/2013). Notice of this application was served on the appellants' attorneys-at-law on 30 September 2013. By notice filed on 4 November 2013, the appellants applied for orders extending the time within which to serve their skeleton arguments and granting permission to file the record of appeal out of time (application no 140/2013).
Both applications having been heard together on 11 and 12 November 2013, the court, by orders made on the latter date, refused the appellants' application to extend time and granted the 1 st respondent's application to dismiss the appeal for want of prosecution.
The appellants were charged in proceedings before the Resident Magistrate's Court for the Corporate Area for the offence of failing to comply with a lawful order given by the Commissioner under the Independent Commission of Investigations Act (“the Indecom Act”). At the commencement of the trial on 21 May 2011, the appellants raised points in limine based on alleged breaches of their constitutional rights against self-incrimination and to silence. The learned Resident Magistrate having ruled against them, the appellants then sought and were granted an adjournment of the proceedings in that court to allow them to bring a constitutional claim in the Supreme Court. This is the claim, as has already been indicated, in which the full court gave judgment in favour of the respondents on 25 May 2012.
After the filing of the appellants” notice of appeal on 13 June 2012, the registrar of this court, by notice dated 21 June 2012, advised all parties of the steps required by the Court of Appeal Rules, 2002 (“the CAR”), in order to advance the appeal. In particular, the notice reminded (i) all parties to the appeal of the requirement that they should inform the appellants, within 14 days of the filing of the notice of appeal, of the documents which they wished to have included in the record of appeal (rule 2.7(2)(c)); and (ii) the appellants, of the requirement that they should file their skeleton arguments and the record of appeal within 21 and 28 days respectively of the date of the filing of the notice of appeal (rules 2.6(1)(c) and 2.7(3)(c)).
Following on from this notice, the 1st respondent's attorneys-at-law wrote to the appellants' attorneys-at-law on 13 July 2012, advising them of the documents which they wished to have included in the record of appeal.
On 8 April 2013, the registrar wrote to the appellants' attorneys-at-law to advise as follows:
‘Reference is made to the captioned appeal and the attached copy of a Registrar's Notice faxed to your office and confirmed received on June 21, 2012.
Please be reminded that the Skeleton Arguments and Record of Appeal should have been filed within 21 and 28 days respectively of the filing of the Notice of Appeal in this Registry.
The Notice of Appeal was filed on June 13, 2012 and the Skeleton Arguments and Record of Appeal should have been filed by July 4 and 11 2012 respectively (see rules 2.6(1)(c) &2.7(3)(c) of the Court of Appeal (Amendment) Rules 2006).
The Skeleton Arguments were in fact filed on July 6, 2012 and Record of Appeal has not been filed to date.
Kindly take the necessary steps to regularize the appeal.’
The following day, 9 April 2013, the attorneys-at-law for the 1 st respondent wrote to the appellants' attorneys-at-law, pointing out that, although the notice of appeal had been filed on 13 June 2012, they had yet to be served with a copy of the appellants' skeleton arguments. The letter ended with an enquiry: ‘Kindly be good enough to indicate whether you intend to pursue the captioned appeal and if so, serve us with a copy of the relevant documents so that the matter can proceed.’
As at 31 May 2013, the date on which the 1 st respondent's application to dismiss the appeal for want of prosecution was filed, there had been no response from the appellants' attorneys-at-law to either of the letters referred to in paragraphs [8] and [9] above. Nor had the 1 st respondent's attorneys-at-law been served with a copy of the appellants' skeleton arguments (although, as it turned out, they were in fact filed on 6 July 2012).
In the meantime, the constitutional claim having failed in the Supreme Court, the appellants' trial in the Corporate Area Resident Magistrate's Court at Half-Way-Tree had resumed on 28 August 2012. Thereafter, the trial continued over the course of several days, spread over a period in excess of a year, with the appellants' full participation. At the time of the hearing of these applications, we were informed by counsel that the trial was set for continuation on 23 December 2013.
This was how matters stood when the 1 st respondent's application to dismiss the appeal first came on for hearing before this court on 4 November 2013. When, through no fault of any of the parties, it turned out that it was not possible for the application to be heard on that date, it was set for hearing on 11 November 2013. On that date, Mr Richard Small for the 1 st respondent commenced moving the application, taking the court through the history rehearsed above. On the basis of the material before the court, Mr Small submitted, it was obvious that the appellants had no interest in pursuing the appeal and he accordingly asked for an order dismissing the appeal.
At this point, Mr Chukwuemeka Cameron for the appellants referred the court to the application for extension of time within which to comply with the rules, which had in fact been filed on the appellants' behalf on 4 November 2013. Because neither this application, nor the affidavit filed in support of it, was then before the court, the matter was stood down to the following day so that this omission could be cured.
The affidavit in support of the application to extend time was sworn to by Mrs Carolyn Reid-Cameron, attorney-at-law, whose firm has acted for the appellants throughout the proceedings. Mrs Reid-Cameron attributed the appellants' failure to serve their skeleton arguments on the respondents and to file the record of appeal to ‘an administrative error that caused the fulsome skeleton arguments not to be filed [sic] and the record not settled’. She stated that this was a constitutional matter of great public importance and interest and that the appellants remained desirous of having it determined. She pointed out that, at the appellants” request, submissions on the issues raised by the appeal, that is, the right to silence and the right against self-incrimination, had been submitted to and relied on in Parliament. She drew the court's attention to a related decision of the full court, in Police Federation v The Commissioner of the Independent Commission of Investigations, et al [2013] JMFC Full 3 , an appeal from which is pending in this court, in which the court had pronounced on the constitutionality of the Indecom Act. Mrs Reid-Cameron stated that the appellants intended to apply at case management for the consolidation of these appeals so that they can be heard together. As regards the merits of the appeal, she referred to a statement by Sykes J in the court below in the instant case that the issue of the test for constitutionality ‘will have to be examined afresh by the higher courts’, and that ‘Mrs Reid Cameron “may well be correct” in her submissions as it relates to the test for constitutionality’. In these circumstances, Mrs Reid-Cameron concluded, this was a case in which the appellants had a ‘very strong appeal’ and the 1 st respondent had suffered no prejudice from the appellants” delay in complying with...
To continue reading
Request your trial
-
George Ranglin and Others v Fitzroy Henry
...in its favour. 38 In Gerville Williams and Others v The Commissioner of the Independent Commission of Investigations and Another [2014] JMCA App 7, the court dealt with two applications, firstly to dismiss the appeal for want of prosecution, and secondly to extend the time to file skeleton ......
-
Fritz Pinnock v Financial Investigations Division
... [1997] 2 All ER 417 and Gerville Williams and others v The Commissioner of the Independent Commission of Investigations and others [2014] JMCA App 7, in support of his argument that the matter ought to be dismissed, as the applicants have shown no interest in pursuing the motion for condit......
-
Commissioner of Lands v Homeway Foods Ltd and Another
...[2013] JMCA App 2; and Gerville Williams and Others v The Commissioner of the Independent Commission of Investigations and Others [2014] JMCA App 7. She argued that the authorities relied on by the respondents are not applicable to the instant case as they are distinguishable. The relevant ......
-
United Management Services Ltd v The Industrial Disputes Tribunal
...21 Counsel also relied on Gerville Williams and Others v The Commissioner of the Independent Commission of Investigations and Others [2014] JMCA App 7, in which the court expressed its abhorrence for breaches of its orders and the CAR. According to counsel, the appellant in the instant case......