Wycliffe H. Baird v David Goldgar et Al

• Jurisdiction: Saint Kitts and Nevis
• Judge: Ventose JA
• Judgment Date: 15 April 2024
• Judgment citation (vLex): [2024] ECSC J0415-2
• Docket Number: SKBHCVAP2019/0038
• Court: Court of Appeal (Saint Kitts and Nevis)

Between

Wycliffe H. Baird

Applicant

and

[1] David Goldgar

[2] Paul B. Coburn

[3] Caribe (Realties) Canada Limited

[4] Immeudbles Caribe Canada Ltee

[5] Betts Realty Limited

Respondents

Before:

The Hon. Mde. Margaret Price Findlay Justice of Appeal

The Hon. Mr. Trevor M. Ward Justice of Appeal

The Hon. Mr. Eddy D. Ventose Justice of Appeal

SKBHCVAP2019/0038

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Leave to appeal to His Majesty in Council — Section 99(1)(a) of the St. Christopher and Nevis Constitution Order 1983 (“Constitution”) — Appeals as of right — Whether the appeal arises from a final decision of the Court — Applicable test in determining whether an order is interlocutory or final — Special leave to appeal — Section 99(2)(a) of the Constitution — Whether question involved in intended appeal is one of great general or public importance or otherwise

The applicant filed a claim on 7 ^th May 1993 in the High Court against the respondents seeking specific performance, or in the alternative, damages for breach of contract in respect of an agreement with the respondents dated 6 ^th February 1989 (the “Option Agreement”). The applicant was given the option under the Option Agreement to purchase an area of land comprising of 175.65 acres located in Major's Bay, St. Christopher and Nevis (the “Land”), subject to a final survey. The applicant contended that he had the right to exercise an option to purchase the Land, and had so exercised that option, but that the third respondent, Caribe (Realties) Canada Limited, had breached the Option Agreement. The Government of Saint Christopher and Nevis compulsorily acquired the lands of the respondents including the Land. The respondents were successful in their claim against the Government, and they received a payment of over US$17 million.

The first trial judge decided the matter by way of trial on a preliminary issue, finding on 24 ^th November 2009, among other things, that it was the applicant who had failed to close the agreement for the sale of the Land. The matter then came on for hearing on 4 ^th – 6 ^th May 2016 before another judge on the question of whether the decision of the first trial judge should stand. The learned judge handed down her decision on 30 ^th July 2019 in which she held that the decision of the first trial judge must stand, that the claim against the fifth respondent be dismissed, and that the trial should proceed. The learned trial judge concluded that the applicant was entitled to the return of monies paid by him under the Option Agreement and for the purchase of the Land. Consequently, the learned trial judge dismissed the applicant's claim and a freezing order previously granted against the respondents was discharged.

The applicant, on 11 ^th September 2019, filed an appeal to the Court of Appeal against the decision of the learned trial judge dismissing his claim and discharging the injunction on 13 grounds. After the filing of the notice of appeal, the applicant received the transcript of the proceedings in the court below in April 2020, however, the respondents were not informed that the applicant had obtained the transcripts until July 2021. Subsequently, counsel for the applicant wrote to counsel for the respondents stating that he had been instructed to make every effort to have the appeal disposed of at the next sitting of the Court of Appeal in St. Christopher and Nevis in December 2021. The applicant proposed dates for the filing of submissions and authorities, the filing of the respondents' submissions in reply and authorities and the completion of the record of appeal. These dates came and passed but no submissions and authorities were filed by the applicant to which the respondents could respond, nor was the record of appeal filed. Consequently, the matter could not be heard at the December 2021 Court of Appeal sitting in St. Christopher and Nevis. Upon the written request of the respondents, the matter was then listed for status hearing before the Chief Registrar on 13 ^th June 2022. At the status hearing, directions were given to the applicant and the respondents for the preparation of the record of appeal and the filing of submissions. Again, the applicant neither filed submissions nor the record of appeal in accordance with the orders given at the status hearing. The respondents then applied on 13 ^th October 2022 for an order that the Notice of Appeal be struck out or dismissed for abuse of process or want of prosecution.

The issue for the Court of Appeal was whether the appeal should be struck out for abuse of process of the court and or dismissed for want of prosecution due to the protracted delay by the applicant in filing the record of appeal. The Court explained that the factors that must be considered in determining whether to dismiss an appeal for want of prosecution were: (1) the length of the delay; (2) the reasons for the delay; (3) the merits of the appeal; and (4) the prejudice to the litigants. Upon considering the circumstances, particularly the inordinate delay by the applicant in pursuing the appeal; the lack of cogency in the reasons advanced by the applicant for the delay; the fact that the appeal, though arguable, could not be said to be one with a strong prospect of success; the prejudice to the respondents; and the overriding objective; the Court concluded that the notice of appeal should be struck out for abuse of process. The Court also found that the conduct of the appeal by the appellant amounted to a want of prosecution of the appeal by the appellant and that the appeal should be dismissed on that basis as well.

Being dissatisfied, the applicant filed a notice of motion on 4 ^th January 2024 for the grant of leave to appeal to His Majesty in Council: (1) as of right under section 99(1)(a) of the Constitution of Saint Christopher and Nevis (the “Constitution”); 1 and (2) with leave of this Court under section 99(2)(a) of the Constitution, against the decision of the Court striking out the applicant's appeal. The applicant relied on two main grounds, that: (1) the decision of the Court is a final decision in civil proceedings indirectly involving a claim to or question respecting property over the prescribed value of five thousand dollars; and (2) the decision of the Court is a decision in civil proceedings where the question involved in the appeal is one which ought to be submitted to His Majesty in Council by reason of it being of great general or public importance or otherwise.

Held: granting the notice of motion for leave to appeal to His Majesty in Council on the conditions set out at paragraph 43 of the judgment and making the orders at paragraph 44, that:

• 1. The application test has been the yardstick by which the courts of the Eastern Caribbean determine whether a decision or order is final or interlocutory. The decision in Othniel Sylvester v Satrohan Singh did not settle the question of whether the application test or the order test must be used in determining whether an order is final or interlocutory, however it revealed the preference for the application test over the order test. This position has been subsequently approved by this Court on numerous occasions and consistently applied in several decisions of this Court. The practice of using the application test to determine whether a decision or order is interlocutory or final was undoubtedly settled by 2003 in Pentium (BVI) Limited et al v The Bank of Bermuda.

  Inderjit Kaur Chhina v Muhammad Nazir Muhammad Ismail et al BVIHCMAP2020/0024 (delivered 23rd March 2023, unreported) followed; Othniel Sylvester v Satrohan Singh Saint Vincent and the Grenadines, Civil Appeal No. 10 of 1992 (delivered 18th September 1995, unreported) considered; Nam Tai Electronics, Inc v David Hague and Another Territory of the Virgin Islands Civil Appeal No 12 of 2003 (delivered 21st September 2004, unreported) followed; Pirate Cove Resorts Limited et al v Euphemia Stephens et al

  St. Vincent & The Grenadines Civil Appeal No. 11 of 2002 (delivered 5th March 2003, unreported) considered; Nigel Hamilton-Smith et al v Alexander M. Fundora ANUHCVAP2010/0031 (delivered 31st August 2010, unreported) followed; Cukurova Holding A.S v Sonera Holding B.V BVIHCVAP2012/0029 (delivered 5th December 2012, unreported) considered; TSJ Engineering Consulting Ltd. v Al-Rushaid Petroleum Investment Company et al Territory of the Virgin Islands High Court Civil Appeal No. 13 of 2010 (delivered 27th July 2010, unreported) followed; Oliver McDonna v Benjamin Wilson Richardson Anguilla High Court Civil Appeal No. 3 of 2005 (delivered 29th June 2007, unreported) followed; Pentium (BVI) Limited et al v The Bank of Bermuda Territory of the Virgin Islands Civil Appeal No. 3 of 2003 (delivered 12th January 2003, unreported) followed.

• 2. The use of the application test in determining whether an order is final or interlocutory for the purposes of applications for leave to appeal to His Majesty in Council is not grounded in the Civil Procedure Rules 2000. The inclusion of the application test in the Civil Procedure Rules 2000 was done to codify the settled practice of this Court in relation to appeals to the Court of Appeal, not appeals to His Majesty in Council which is governed exclusively by section 99 of the Constitution. There is no question that in making the determination, even under the Constitution, decisions of this Court are the body of substantial case law that must be applied. These decisions make it clear that it is the application test that governs that determination, even under similar constitutional provisions relating to appeals to His Majesty in Council.

  Part 62.1(3) of the Civil Procedure Rules 2000 considered; Jacpot Ltd v Gambling Regulatory Authority (Mauritius)[2018] UKPC 16, [2018] LLR 754 applied.

• 3. The accepted definition of the application test is that an order is final if it would...