John Ledgister and Others v Bank of Nova Scotia Jamaica Ltd

• Jurisdiction: Jamaica
• Judge: Harris JA,Brooks JA
• Judgment Date: 13 January 2014
• Neutral Citation: JM 2014 CA 1
• Docket Number: MOTION NO 10/2013
• Court: Court of Appeal (Jamaica)
• Date: 13 January 2014

BETWEEN

John Ledgister

1st Applicant

and

Trevor Ledgister

2nd Applicant

and

Karlene Ledgister

3rd Applicant

and

Selena Ledgister

4th Applicant

and

Hugh Ledgister

5th Applicant

and

Sunnycrest Enterprises Limited

6th Applicant

and

Bank of Nova Scotia Jamaica Limited

Respondent

[2014] JMCA App 1

BEFORE:

The Hon Mrs Justice Harris JA

The Hon Mr Justice Brooks JA

The Hon Ms Justice Lawrence-Beswick JA (Ag)

MOTION NO 10/2013

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT CIVIL APPEAL NO 33/2013

CIVIL PROCEDURE - Leave for extension of time to appeal - Application refused - Motion to appeal to Her Majesty in Council - Constitution of Jamaica, s. 110 - Whether matter is one of public and general importance

1 ^st applicant in person and on behalf of the 6 ^th applicant

William Panton and Miss Cindy Lightbourne instructed by DunnCox for the respondent

Harris JA

1 I have read, in draft, the reasons given by my brother Brooks JA for the decision handed down in this matter on 7 October 2013. I agree with the reasons and have nothing to add.

Brooks JA

2 On 7 October 2013, we made the following orders in this matter:

‘(1) The application for leave to appeal to the Privy Council is refused;

(2) Costs to the respondent to be taxed if not agreed.’

We promised at that time to put our reasons in writing. We now fulfil that promise.

3 On 5 June 2013, this court refused an application made by Messrs John, Trevor and Hugh Ledgister, Mesdames Karlene and Selena Ledgister and Sunnycrest Enterprises Ltd (collectively referred to hereafter as “the applicants”) to extend the time within which to appeal a decision of the Supreme Court. The applicants are aggrieved by the refusal and on 27 June 2013, filed the present motion seeking permission to appeal to Her Majesty in Council.

4 The applicants assert that there is an appeal as of right under section 110(1) of the Constitution. Additionally, they state that the issues raised are of such public and general importance that they also qualify for permission under section 110(2). The respondent to the application, the Bank of Nova Scotia Jamaica Limited (the bank), opposes the motion on the basis that the issues involved in the litigation raise no genuine points of law and have no general or public importance.

5 A clear summary of the facts involved in this case is set out in the judgment of Harris JA, which explains the reasons for the refusal of the application to extend time. It may be noted for these purposes, however, that the essential aspects of the case turn on the judgments in the court below of Pusey J and Mangatal J.

Background to the motion

6 On 11 June 2008, in ruling on the bank's application for summary judgment, Pusey J granted the applicants permission to defend provided that they paid to the bank the sum of $5,000,000.00 on or before 1 September 2008, ‘ FAILING which the [bank] will be granted Summary Judgment against the [applicants] on the Claim’ (Emphasis as in original). It should be noted that the sum stipulated was slightly less than the sum of $5,200,000.00, which the applicants had stipulated would have been the indebtedness, at a particular point in time, had the bank not committed and persisted, according to them, in what could be described as egregious deception and misrepresentation. The applicants were, nonetheless, contesting liability on other bases and also had a counter-claim that they wished to pursue.

7 The applicants failed to pay the sum ordered by Pusey J. As a result, the bank made another application to the court for summary judgment. It came before Mangatal J, on 19 September 2008. Having heard the application the learned judge ordered, in part, as follows:

‘The [applicants], not having complied with the proviso to the Order made by Pusey J. on June 11, 2008, there will be summary judgment for the [bank] on the Claim as filed.’

The application for extension of time to appeal against those orders was filed on 19 April 2013, a delay of over three years. The reasons for failing to observe the time limit imposed by the Court of Appeal Rules included accusations of negligence, and worse, levelled against the applicants' former legal representative. As mentioned above, that application was refused by this court.

The submissions on the motion

8 The 1 ^st applicant, Mr John Ledgister, who is also a director of the 6 ^th applicant, Sunnycrest Enterprises Ltd, represented the applicants in the application to extend time as well as in the present motion. In arguing the present motion, he submitted that the applicants had satisfied the requirements of section 110(1) of the Constitution because the value of the sum in issue is in excess of $1,000.00 and the order was a final decision of the bank's claim. It was a final decision, he argued, because the bank may now proceed to sell his property based on the summary judgment that has been granted.

9 Additionally, he argued that the applicants' case also involved breaches of their rights guaranteed by section 18 of the Constitution ‘whereby no one should be dispossessed of his/her property except at a fair trial when there is a disputed claim’ (paragraph 12 e (i) of the notice of motion). Mr Ledgister submitted further, that this matter also raised issues of general or public importance as the misrepresentation, of which the bank was guilty, by its own admission, potentially would have affected all its customers and it is to be noted that the bank not only has a local but also an international presence.

10 In terms of the merits of his complaints against the orders of this court and of the court below, Mr Ledgister, among other things, stated that none of the courts that had considered this case had given any fair consideration to the applicants' case. He submitted that the courts had unconscionably sided with the bank in the bank's illegal attempts to deprive the applicants of their property. He submitted that the courts' decisions were in breach of natural justice and also subject to reversal in accordance with the ‘[c]lear directions from Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service’ (paragraph 12 of the notice of motion) (emphasis as in original).

11 Mr Panton, on behalf of the bank, submitted that the applicants had failed to satisfy the requirements of section 110 of the Constitution. Learned counsel accepted that it could be argued that this was a final judgment in a civil matter involving value in excess of $1,000.00. He argued, however, that there were no contentious issues of law involved in this case. He stressed the fact that the applicants had admitted that they owed the bank approximately $5,200,000.00. He dismissed their accusations that it was their legal representative's negligence that had resulted in their predicament. Mr Panton pointed out that it was Mr John Ledgister, himself, who had signed the certificate of truth as to the abovementioned admission.

12 Learned counsel also argued that whereas the issues would be of importance to the applicants, they were not of public or general importance and therefore, did not qualify under section 110(2) of the Constitution. He urged the court to refuse the motion.

Analysis

13 Although this area has been the subject of many judgments of this court, it is necessary, in light of the fact that the applicants are self-represented, to state at least the basics of the principles involved. Firstly, an application for permission to appeal to Her Majesty in Council must satisfy one of the provisions of section 110 of the Constitution. Section 110(1) allows for appeals as of right to the Privy Council. Those provisions state:

‘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 one thousand dollars or upwards or where the appeal involves directly or indirectly a claim to or question respecting property or a right of the value of one thousand dollars or upwards, final decisions in any civil proceedings ;

• (b) final decisions in proceedings for dissolution or nullity of marriage;

• (c) final decisions in any civil, criminal or other proceedings on questions as to the interpretation of this Constitution ; and

• (d) such other cases as may be prescribed by Parliament.’ (Emphasis supplied)

14 Although the ‘appeal lies as of right, it is still necessary to get leave to appeal’, from this court (see page 2 of Chas E Ramson Ltd and Another v Harbour Cold Stores Ltd SCCA No 57/1978 (delivered 27 April 1982)). Upon the permission to appeal being sought, this court is obliged to satisfy itself that the case meets at least one of the requirements of section 110(1).

15 The second basic principle is that in considering paragraph (a) above, it is to be noted that it is accepted that the value of the property in dispute is to be considered cumulatively with the decision being a final decision in civil proceedings. In other words, that the property value requirement had to be satisfied and the decision had to be a final decision in civil proceedings. The cumulative requirement was expressly stated in Georgette Scott v The General Legal Council (Ex-Parte Errol Cunningham) SCCA No 118/2008 (delivered 18 December 2009). Phillips JA, in giving the judgment of this court on an application for permission to appeal to Her Majesty in Council, stated at page 7:

‘With regard to section 110(1)(a) of the Constitution, this Court is of the view that the applicant must show the following:

• (1) that the decision being appealed is a final decision in a civil proceeding and

• (2) that the matter in dispute on the appeal is of the value of one thousand dollars or upwards, or

• (3) that the appeal involves...