Select Holdings Ltd v Petroleum Coporation of Jamaica Ltd

• Jurisdiction: Jamaica
• Judge: DOWNER, J.A. , SMITH, J.A. , BINGHAM, J.A. (Dissenting) , Downer, J.A: , BINGHAM. J.A. , SMITH J.A.(Ag.) , DOWNER. J.A.
• Judgment Date: 07 November 2002
• Neutral Citation: JM 2002 CA 49
• Judgment citation (vLex): [2002] 11 JJC 0701
• Court: Court of Appeal (Jamaica)
• Date: 07 November 2002

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE DOWNER, J.A THE HON. MR. JUSTICE BINGHAM, J.A THE HON. MR. JUSTICE SMITH J.A. (Ag.)

BETWEEN:

SELECT HOLDINGS LIMITED

APPLICANT

AND

PETROLEUM COMPANY OF JAMAICA LIMITED

RESPONDENT

Christopher Malcolm instructed by John Graham and Co. for the applicant

Sandra Minott-Phillips instructed by Myers Fletcher and Gordon for the Respondent

CIVIL PROCEDURE - Interlocutory appeal - Leave to enlarge time to relist appeal - Security for costs

DOWNER, J.A.

1 In this interlocutory appeal Mr. Christopher Malcolm moves this Court, on behalf of Select Holdings Ltd., (the applicant) to enlarge time to enable the applicant's appeal to be relisted. In order to understand these proceedings, there must be a reference to the accurate order of Walker J.A. dated 21 ^st November 2000 in Chambers which reads:

• "1. The Appellant provides the Respondent with security for the costs of this appeal in the sum of $168,000 within 28 days of the date hereof, failing which this appeal do stand dismissed with costs to the Respondent, without further order.

• 2. The sum of $168,000 aforesaid be paid to the Respondent's attorney-at-law and be held by them in escrow in an interest bearing account in a commercial bank pending the outcome of the appeal.

• 3. The appeal be stayed for 28 days from the date hereof.

• 4. The costs of this application be the Respondent's."

2 There is no dispute that the money was not paid within the prescribed time which lapsed on or around 19 ^th December, 2000. In fact, the first time the money was tendered was on 2 ^nd February 2001 in this Court before Downer, Harrison and Langrin JJA; and at that time Mrs. Minott-Phillips for the respondent refused it as being out of time. She further contended that even if it had been paid on time, she would have insisted on a manager's cheque. The manager's cheque from Citi Bank is now ready.

3 The Court of Appeal Rules 1962 ("the rules") are relevant. The definition section of the rules, Rule 2 states that:

"appellant" means the party appealing from a judgment, conviction sentence or order and includes his legal representative.

4 The applicant is an appellant. Its appeal was put on the register of appeal pursuant to Rule 8(1) and the hearing set for 12 ^th February 2001. It remained on the register until this Court has adjudicated on the matter. Although the appeal is provisionally dismissed because the security for costs was not tendered in time, it is open to the applicant to invoke Rule 9(1) of the rules to seek enlargement of time, as well as to obtain a departure from the rules and rely on the inherent jurisdiction of the Court. Be it noted the caption under which Rule 9 falls reads Appeals Generally. Here is how Rule 9(1) is worded:

"9.-(1) Subject to the provisions of subsection (3) of section 15 of the Law and to rule 23 of these Rules, the Court shall have power to enlarge or abridge the time appointed by these or any other Rules relating to appeals to the Court, or fixed by an order enlarging time, for doing any act or taking any proceeding, upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed , or the Court may direct a departure from these or any other Rules relating to appeals to the Court in any other way where this is in the interests of justice." [Emphasis supplied]

5 On the face of it, the ample wording of this rule permits an appellant as an applicant, to seek enlargement of time when time was expired. This rule also expressly recognises the inherent jurisdiction of this Court to permit an applicant to have a hearing on the merits if the interests of justice so warrant.

6 Rules 9(2) and (3) set out the machinery for applications. They read:

• "(2) Save as may be otherwise expressly provided, applications to the Court under this rule shall be made by Motion, notice of which shall be served on all the parties to the proceedings at least 7 clear days before the day named in the notice for hearing the motion.

• (3) Every motion under the preceding paragraph shall be supported by affidavit, a copy of which shall be served with the notice of motion, setting out concisely the reasons why the act or proceeding was not done or taken within the prescribed time."

7 It is against this background that rules 33 and 35 dealing with Applications must be considered as the instant application is made pursuant to these rules. Rule 33 reads:

"33.(1) In any cause or matter pending before the Court, a single Judge of the Court may, upon application, make orders for -

• (a) giving security for costs to be occasioned by any appeal;

• (b) leave to appeal in forma pauperis ;

• (c) a stay of execution on any judgment appealed from pending the determination of such appeal;

• (d) an injunction restraining the defendant in the action from disposing or parting with the possession of the subject matter of the appeal pending the determination thereof;

• (e) extension of time;

and may hear, determine and make orders on any other interlocutory application.

• (2) Every order made by a single Judge of the Court in pursuance of this rule may be discharged or varied by the Court."

8 The important point to note is that, because the order is made by a judge in Chambers and may be discharged or varied by this Court and it is in the nature of a conditional order. If there be no application to the Court to discharge or vary the order then the matter is concluded. If there is an application to enlarge time, as in this instance, then the Court must exercise its jurisdiction in the interests of justice.

9 Turning to Rule 35(1) for the specific provision as regards security for costs it reads:

"35.

• (1) Before an application for security for costs is made, a written demand shall be made by the respondent and if the demand is refused or if an offer of security is made by the appellant and not accepted by the respondent, the Court shall in dealing with the costs of the application consider which of the parties has made the application necessary.

• (2) An application for security for costs may be made at any time after the appeal has been brought and must be made promptly thereafter.

• (3) An order for security for costs shall direct that in default of the security being given within the time limited therein, or any extension thereof, the appeal shall stand dismissed with costs."

10 Rule 35(3) is important in demonstrating that compliance is important but it does not reduce the force and effect of rule 9(1) aforementioned which permits enlargement of time or a departure from the rules. The gist of the applicant's case is an enlargement of the 28 days ordered by Walker J.A. on 21 ^st November, 2000 in the interests of justice.

11 The facts

12 The managing director of the applicant states his case concisely. He said:

• "4. That further to the Order of the Honourable Mr. Justice Walker, J.A. I made every effort on behalf of the Appellant to secure the said sum of $168,000.00 but my efforts notwithstanding I was unable to secure the funds within the time allowed.

• 5. That the appellant is and always has been interested in pursuing its appeal and has complied with the requisite formalities and the Record of Appeal was filed on December 8, 2000.

• 6. That the appellant has secured the funds required and is now in a position to pay over to the Respondent's attorneys-at-law the said sum of $168,000.00."

13 I find that this is an honest statement indicating that financial difficulties were such that it was impossible for the applicant to tender payment of $168,000.00 within the time prescribed by the order of Walker J.A. However, there was compliance with rule 9(3) supra.

14 It is sufficient to advert to the applicant's Endorsement on the Writ to grasp that this claim is serious. It reads:

"The Plaintiff, the owner and occupier of all that parcel of land known as lot numbered 6 part of Portmore in the parish of Saint Catherine, registered at Volume 1203 Folio 185 of the Register Book of Titles, claims against the Defendant, the owner of the adjoining premises, to recover damages for negligence, nuisance, trespass and breach of the rule in RYLANDS v FLETCHER for that the Defendant caused and/or permitted hazardous contaminants consisting of oil, grease, petroleum fuel, diesel oil, and assorted hydrocarbons which are normally stored on the Defendant's premises to escape therefrom and enter onto the Plaintiff's adjoining land and permeate the soil and as a consequence has caused the Plaintiff to suffer loss and damage and to incur considerable expense.

AND THE PLAINTIFF CLAIMS:

• 1. AN INJUNCTION to restrain the Defendant, its servants, agents or any persons under them from doing the following acts or any of them, that is to say, carrying on or permitted to be carried on upon its premises the storage of chemical products including gas oil, gasoline, diesel oil or other hazardous hydrocarbons in such a manner so as to cause or permit them to escape onto the Plaintiffs said land and/or so as by the discharge of the said hazardous chemicals to cause damage to the Plaintiffs said land.

• 2. Damages

• 3. Further or other relief;

• 4. Costs."

15 Record J. made an order against the applicant. It reads thus:

• "1. This action be dismissed and struck out as an abuse of process of the court.

• 2. The Plaintiff's summons dated the 4 ^th day of May, 2000 is dismissed.

• 3. The Plaintiff pay the costs of both summonses and of the action generally.

• 4. Leave to appeal granted to the Plaintiff."

16 The applicant wishes to be heard on the merits so that the above order in the Court below may be set...