Mannaseh Thomas v Noranda Jamaica Bauxite Partners

• Jurisdiction: Jamaica
• Judge: F Williams JA,V Harris JA,Brown Beckford
• Judgment Date: 08 April 2022
• Neutral Citation: JM 2022 CA 047
• Docket Number: RESIDENT MAGISTRATES CIVIL APPEAL NO 6/2016
• Court: Court of Appeal (Jamaica)

Between

Mannaseh Thomas (Administrator of The Estate of Gerald Thomas

1 ^st Applicant

Gerald Thomas (Administrator of The Estate Of Gerald Thomas)

2 ^nd Applicant

and

Noranda Jamaica Bauxite Partners

Respondent

[2022] JMCA App 13

BEFORE:

THE HON Mr Justice F Williams JA

THE HON Mrs Justice V Harris JA

THE HON Mrs Justice Brown Beckford JA (AG)

RESIDENT MAGISTRATES CIVIL APPEAL NO 6/2016

APPLICATION NO COA2020APP00042

IN THE COURT OF APPEAL

Written submissions filed by Oswest Senior Smith & Co for the applicants

Written submissions filed by Glenford P Watson for the respondent

F Williams JA

1 I have read the draft judgment of my sister, Brown Beckford JA (Ag), and agree with her reasoning and conclusion and have nothing to add.

V Harris JA

2 I agree and have nothing to add.

Brown Beckford (AG)

Background

3 On 31 January 2020, the applicants filed a notice of motion for conditional leave to appeal to Her Majesty in Council (‘the notice of motion’) from a decision of this court handed down on 17 January 2020 with affidavit of Gerald Thomas in support. The notice of motion was not served on the respondent at the address stated in it but was served on its attorneys-at-law on the record on 19 February 2020. The applicants also filed an application for extension of time to serve the notice of motion. The matter came before a single judge of this court who directed, among other things, as follows:

“1. Given that the Motion was not served within the time limited for it to be filed and served, it would seem that an application for extension of time will have to be placed before the court for consideration. Please have the parties prepare to argue the application before the court. The court ought to be satisfied that it has the power to extend time for service of the motion to be effected.” (Emphasis supplied)

4 Therefore, the application for extension of time came before this court for consideration. The parties also complied with the requirement to file written submissions. At the request of the applicants, and with no objection from the respondent, this application is being considered solely on those written submissions.

5 The process to be utilised in initiating an appeal to the Privy Council is governed by section 3 of the Jamaica (Procedure in Appeals to Privy Council) Order in Council 1962 (‘Order in Council’), which stipulates 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.”

6 The relevant chronology for this application is this:

• 1) 17 January 2020 — decision of the Court of Appeal.

• 2) 31 January 2020 - notice of motion filed.

• 3) 19 February 2020 — respondent's attorney-at-law served with the notice of motion and supporting affidavit.

• 4) 27 February 2020 — notice of application for extension of time to serve the notice of motion filed.

7 Before addressing the substance of this application, a preliminary point arose for our consideration which has been resolved without the need for judicial determination.

Was there a valid notice of motion?

8 By way of emailed correspondence to the parties, the registry indicated that it did not have a stamped copy of the notice of motion filed on 31 January 2020 or affidavit in support of same on the file. Accordingly, the registry by that missive requested a copy of the stamped notice of motion and a copy of the official receipt in proof that the notice of motion had been duly stamped in accordance with Part 3 of the Civil Procedure Rules, 2002 (‘the CPR’) (which is applicable to this court by virtue of rule 1.1(10)(f) of the Court of Appeal Rules (2002) (‘CAR’)). Rule 3.7(3) of the CPR states as follows:

“(3) Where a fee is to be paid a document is not to be treated as filed until -

(a) the fee is paid; or

(b) an undertaking to pay the fee acceptable to the registrar is received.

9 Counsel for the applicants supplied a copy of the notice of motion but not a copy of the receipt from the Stamp Office. Further requests were made, but at the time this application came on for hearing, neither a copy of the receipt nor stamped copy of the notice of motion had been supplied to the registry. This court held in Chas E Ramson Ltd and Another v Harbour Cold Stores Ltd (unreported), Court of Appeal, Jamaica, Supreme Court Civil Appeal No 57/1978, judgment delivered on 27 April 1982, that it did not have the authority to extend the time for filing the notice of motion. This position has been subsequently applied by this court in several cases (see, for example, Exclusive Holiday of Elegance Limited v ASE Metals NV [2014] JMCA App 2 (‘ Exclusive Holiday’) at para. [10] and Fritz Pinnock and Ruel Reid v The Financial Investigations Division [2021 JMCA App 29 at paras. [71] —[83] (‘ Pinnock and Reid v FID’)). It would be fatal to the applicants if the notice of motion had not been stamped with the applicable fees at the time it was filed as no undertaking to pay the fee had been given to the registrar. And, in any event, any such undertaking would entail the payment of the requisite stamp duty within the time provided for the filing of the notice of motion (21 days)(see paras. [137] and [138] of Pinnock and Reid v FID).

10 On confirmation that a stamped notice of motion along with supporting affidavit had been received at the registry on 31 January 2020, subsequent and more thorough checks in the registry resulted in locating the notice of motion with proof of payment of the stamp duty, as required by The Court of Appeal Rules (Fees) (Amendment), 2017, made pursuant to The Judicature ( Rules of Court) Act, and the affidavit in support filed on the same date.

11 There being a valid notice of motion filed within the time stipulated, we turned our consideration to the application for extension of time to serve the notice of motion.

Application for extension of time

12 There is no dispute that the notice of motion was served on the respondent's attorneys-at-law outside of the 21-day period mentioned in section 3 of the Order in Council. If service was to be effected on the respondent at the address noted in the motion, such service would also be outside of that period. This prompted the registry to issue...