Sandy Lane Hotel Company Ltd v Johnson Poyer and Cato

• Jurisdiction: Barbados
• Judge: Goodridge JA
• Judgment Date: 23 May 2017
• Neutral Citation: BB 2017 CA 11
• Docket Number: Magisterial Appeals Nos. 8, 9 and 10 of 2014
• Court: Court of Appeal (Barbados)
• Date: 23 May 2017

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

Before:

The Hon. Sandra P. Mason, Chief Justice (Ag), The Hon. Andrew D. Burgess and The Hon. Kaye C. Goodridge, Justices of Appeal.

Magisterial Appeals Nos. 8, 9 and 10 of 2014

Between:

Sandy Lane Hotel Co. Limited

Appellant

and

Wayne Johnson

Charmaine Poyer

Julianna Cato

Respondents

Mr. Satcha S.C.S. Kissoon and Mr. Philip McWatt for the Appellant.

Mr. Edmund King QC for the Respondents.

Civil Practice and Procedure - Magisterial appeal — Whether the appeal was properly before the court — Whether the appellant complied with section 240(2) of the Magistrates' Court Act Cap 116A — Whether the court had the power to grant an extension of time to file a notice of appeal from a decision of a Magistrate.

DECISION

Goodridge JA

Introduction

1 On 8 October 2014, the appellant filed three notices of appeal against the decision of the magistrate for District “E”, Holetown, given on 24 September 2014, in which she gave judgment in favour of the respondents in a wrongful dismissal action.

2 The facts reveal that the respondents had been employed by the appellant at its hotel in Sandy Lane, St James. On 30 January 2012, the respondents were summoned to a meeting with the director of food and beverage, who informed them that the appellant had certain concerns with the manner in which they were discharging their duties. The respondents were later handed letters of dismissal terminating their services.

3 Subsequently, the respondents brought their actions for wrongful dismissal in the magistrate's court.

4 When this matter first came on for hearing before this Court on 9 February 2017, Mr. Satcha Kissoon, counsel for the appellant, informed the Court that he had been unable to file written submissions because the magistrate's reasons had only been recently obtained. The Court then raised with counsel the question whether the appeals were properly before the Court, in light of the recent decision of the Caribbean Court of Justice (CCJ) in Deane v Allamby [2016] CCJ 21 (AJ) ( Deane v Allamby). The matter was then adjourned so that written submissions could be filed in this regard.

5 On 22 February 2017, the appellant filed its written submissions. The appellant also filed a notice of application on the same date for an order that (i) it be granted leave to appeal pursuant to Order 22 of the Magistrate's Court ( Civil Procedure) Rules, 1958 (the 1958 Rules); and (ii) if the Court was so minded to grant leave, that the notice of appeal filed on 8 October 2014 be permitted to stand as the notice of appeal in the proceedings. The application was supported by the affidavit of counsel.

6 In his affidavit in support, Mr. Kissoon deposed that he was present in court when the magistrate delivered her decision. He indicated to the magistrate that his client would appeal, and asked for and was granted a stay of execution for 6 weeks.

7 Counsel also stated that, having received instructions from his client, he drafted documents and circulated them to the client and senior counsel. He continued that he advised his client that it had 28 days in which to file its appeal, having regard to Part 62.6(1)(c) of the CPR.

8 According to paragraph 7 of the affidavit, by letter dated 1 October 2014, Mr. Kissoon wrote to the magistrate and gave her “written notice that my client was appealing the said matter and would require reasons in advance of settling its grounds of appeal.” This letter was hand delivered to the clerk of the magistrate's court on the same day.

9 Counsel pointed out that the magistrate's reasons for her decision only came into his possession on 27 January 2017, despite having written for the same since 1 October 2014.

10 Mr. Kissoon further stated that “up to the time of the filing of this application, I still believe that the applicable law that governs this appeal is the said Part 62.6(1)(c) of the CPR.”

11 On 16 March 2017, this Court, after hearing the submissions of counsel, dismissed the appeals on the basis that it had no jurisdiction to (i) hear those appeals, having regard to section 240 of the Magistrate's Courts Act, Cap. 116A (Cap.116A); or (ii) grant an extension of time for appealing.

12 By letter dated 30 March 2017, and received by the Court of Appeal registry on 5 April 2017, counsel for the appellant requested this Court to provide written reasons for its decision. We now set out those reasons below.

The Submissions of Counsel

13 Mr. Kissoon's arguments may be summarised as follows:

1

There is a conflict between section 240(2) and Part 62 of the CPR regarding the time for filing a magisterial appeal, in that the former provides for the giving of notice to the magistrate's clerk within 7 days, while the latter provides for the filing of a notice of appeal within 28 days. The most logical interpretation is that the CPR applies and that section 240 was intended to be repealed and not followed in relation to magisterial appeals. Therefore the notices were filed within the prescribed time. 2. In the event that this Court forms the view that Cap. 116A is still in force for commencing appeals, then counsel's letter of 1 October 2014 to the magistrate gave the requisite notice and the appeals are in time. 3. If the Court is not persuaded by this argument, it is respectfully submitted that the CCJ's decision in Deane v. Allamby that there is no statutory...