Silvera Adjudah v Attorney General of Jamaica
| Jurisdiction | Jamaica |
| Judge | Hutchinson J |
| Judgment Date | 09 April 2021 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO.2017HCV01103 |
[2021] JMSC Civ. 64
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
CLAIM NO.2017HCV01103
Silvera Adjudah for Applicant.
Carson Hamilton instructed by Director of State Proceedings for the Respondent
Application for leave to appeal — real chance of success — limitations of actions act — fraudulent concealment — jurisdiction of the Master — striking out of claim — date on which judgment takes effect — considerations on application for leave to appeal
CORAM: Hutchinson J
The matter before me is entitled an ‘Application for stay of execution of Court orders and for permission to appeal’. It was filed by a self-representing litigant, Mr Silvera Adjudah, on the 23 rd of July 2019 and it was supported by a brief affidavit sworn to by him. In his application Mr Adjudah outlined a total of 9 grounds on which leave is being sought and these are as follows;
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1. My Application for extension of time for my claim filed on April 19, 2017 was never heard. However, a summary judgment application filed by the Attorney General on May 4, 2018 after Default Request Court date was heard and used to strike out my Claim Form and Particulars of Claim.
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2. The Master who heard my case had no authority to hear a summary judgment application as it is outside of her duties of hearing interlocutory matters.
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3. The judgment document issued to me is not signed and not sealed or stamped from the Supreme Court which makes it an invalid document.
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4. The Master made reference to my employment contract which is totally irrelevant to what was before the Court, that of a fraudulent Performance Appraisal Report and a fraudulent Memorandum of Complaint that was used to terminate my employment to which there was no defense for any of them. See Exhibit 6 and Doc.4
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5. The interpretation of statute of limitation used by the Master is totally incorrect. It is that of statute of repose and not statute of limitation as was submitted to the court in legal advice document, Exhibit 2 and Exhibit 1.
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6. The Master failed to speak to the motive for the termination of my employment as was submitted to the court in doc-#7
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7. The Master failed to speak to the abuse of power of the person who terminated my employment, who had no authority to terminate my employment without a recommendation from my Chief Executive Officer, who on the contrary recommended my appointment not my termination of employment
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8. The Master failed to speak to the breaches of my rights during hearing of the Application by allowing the Attorney General — first Defendant who;
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(a) Took my time to give to the defendant to make submission on a further affidavit before it was served on me and
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(b) Took my time to give to the defendant to make a second submission after seeing my written submission see Exhibit. SS.
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9. The order of denying me the right to appeal was malicious by the Master. In that after she completed her orders I simply indicate to the Court I that I will be appealing the ruling, then she added the order of, leave to Appeal is denied without me making an application to her.
The matter was heard on the 20 th of January 2021, at the start of the hearing Mr. Hamilton informed the Court that he would be making oral submissions in response to the documents filed by the Applicant as no written submissions had been filed by his department. Mr Adjudah indicated that he wished to have the matter proceed and he was invited to commence his submissions, which took the form of him reading the grounds outlined above with some amplification.
In response to these submissions, Mr. Hamilton reviewed extracts from the Court of Appeal Rules, the Civil Procedure Rules and the Judicature (Appellate Jurisdiction) Act. He also relied on the Court of Appeal decision Garbage Disposal & Sanitations Systems Limited v Noel Green and Others [2017] JMCA App 2. Copies of these rules, legislation and the authority cited were provided to the Applicant and the Court.
The Court was then informed by Mr Adjudah that he would not be in a position to provide a response to the authorities and rules cited by Mr Hamilton, given the stage at which he received them. In an effort to ‘balance the scales’, Counsel was asked to reduce his oral submissions to writing and to have same served on the Applicant who would be permitted to make further submissions on any point of law arising. These submissions were filed on the 5 th of February 2021 and provided to the Applicant. I have reviewed them and I note that nothing additional has been included. The Applicant filed his submissions on the 3 rd of March 2021.
It was acknowledged by Mr Adjudah that there had been a delay in the filing of this application. He argued however that this was as a direct result of the Respondent's delay in serving him with a copy of the formal order of the proceedings before Master Mason. He complained that his efforts to file the application were also impeded by the fact that he was without a copy of the written Judgment until July 17 th 2019.
He took issue with the conduct of the proceedings before the Master and argued that she had ignored his application for an extension of time to bring his claim outside the limitation period and opted instead to hear a summary judgment application brought by the Attorney General's office (hereafter AG's office). He also insisted that the wrong procedure was adopted during the course of the hearing as the representative from the AG's office was permitted to submit twice whereas he submitted only once.
Mr Adjudah argued that by hearing the application to strike out his claim the Master was guilty of a procedural irregularity as Masters have no jurisdiction to hear such matters. He maintained that although he could not produce an authority in support of this position, it was the considered view of several attorneys with whom he consulted. He submitted that the copy of the written judgment which was provided to him was irregular as it was not sealed, stamped or signed. He also complained that the reference by the Master, in her judgment, to his employment contract was irrelevant to his claim.
Mr Adjudah argued that the Master's interpretation that the limitation period operated against his claim was incorrect, as although he was terminated in 2010 and his action was brought in 2017, he actually discovered the fraud underlying his termination in 2016. He also asserted that the Master failed to consider the abuse of power by the person who terminated him as that individual had no such jurisdiction. He insisted that she acted maliciously towards him as upon his indication that he intended to appeal the Master made an order that leave to appeal was denied.
Mr Hamilton commenced his submissions by acknowledging that the Court's power to grant an application for leave to appeal is to be found at Rule 1.8 of the Court of Appeal Rules 2002. He also made reference to Section 11(1) (f) of the Judicature (Appellate Jurisdiction) Act which provides that no appeal shall lie without the leave of the Judge or of the Court of Appeal from any interlocutory judgment or any interlocutory order given or made by a Judge except where the circumstances outlined from s. (i) – (vi) are applicable.
He commended to the Court, the Garbage Disposal case which he submitted outlined the relevant factors which should be considered and he asked that special note be taken of paragraphs 16 and 17 which provide as follows;
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[16] The court now has before it two issues to consider: (i) whether it should grant permission to appeal; and (ii) whether it should extend time to apply for permission to appeal.
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[17] In relation to addressing the question of what approach the court should adopt when hearing both these types of applications together, I am not without guidance. As recognised by Smith JA in the case of Evanscourt Estate Company Limited v National Commercial Bank SCCA No 109/2007, judgment delivered on 26 September 2008, if permission to appeal ought not to be given, it would be futile to enlarge the time within which to apply for permission. This, then, will be the primary rule that will guide the resolution of the application for the orders. The application for permission to appeal will be addressed first.
Mr Hamilton submitted that the Applicant's application for permission to appeal should be denied for the following reasons;
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(i) Leave to appeal has already been denied by this court.
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(ii) The appeal does not have a real chance of success.
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(iii) There was undue delay in the filing of this application
In submissions under this heading, Counsel stated that the Court has already denied the Applicant leave to appeal in this matter and this is reflected in the perfected order of Master Mason which was filed on May 31, 2019 and signed by her. He also highlighted the same endorsement which appears in the written judgment of the Master at [2019] JMSC Civ 142. He argued that this application is improper and an abuse of the process of the court as the applicant is seeking to have his application heard twice and should not be entertained.
In support of his submissions on this point, Mr Hamilton highlighted the guidance provided at paragraphs 27 and 28 of Garbage Disposal & Sanitations Systems Limited v Noel Green and Others where the court noted:
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[27] Rule 1.8(9) of the Court of Appeal Rules (CAR) is also relevant, as it sets out the considerations for the court in determining whether it should grant an application for permission to appeal. The rule provides that:
“The general rule is that permission to appeal in civil cases...
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