E.Anthony Ross v. Bank of Commerce (Saint Kitts Nevis) Trust and Savings Association Limited

From the Court of Appeal of St Christopher and Nevis

 

Appellant Ross claimed against the Respondent Bank of  Commerce (Saint Kitts Nevis) Trust and Savings Association Ltd (in liquidation) US$410,000 and interest in respect of two certificates of deposit. Appellant obtained judgment at first instance, but it was set aside in the Court of Appeal. Section 99 of the Constitution scheduled to the Saint Christopher and Nevis Constitution Order, 1983 (SI 1983/881) provided that an appeal shall lie to the Privy Council from decisions of the Court of Appeal as of right where the matter in dispute involves $5000 or upwards. Appellant  filed a notice of appeal with the Privy Council, maintaining that he is entitled to appeal to the Privy Council as of right, without needing to seek or obtain leave from the Court of Appeal or the Privy Council.

 

The first issue before the Judicial Committee was whether that this stand of the appellant was correct. The second issue, if it was not, was whether the Board should grant the appellant special leave or permission to appeal under the Judicial Committee Acts 1833, section 3 and 1844, section 1.

 

 

The combination of section 3 of the Judicial Committee Act 1833 and section 1 of the Judicial Committee Act 1844 confirmed that the Privy Council had a general power to grant special leave to appeal to it. But the established practice  in cases where the local Constitution provided for an appeal as of right was for leave to be sought in the first instance from the local Court of Appeal. The position was codified in slightly different terms, better reflecting the terms of the 1833 and 1844 Acts, in a single set of rules by the Judicial Committee Jurisdiction and Procedure: General Rules as to Appeals Rules 1908 (SR & O 1908, 405).

Rule 2 provided:

“All appeals shall be brought either in pursuance of leave obtained from the court appealed from, or, in the absence of such leave, in pursuance of special leave to appeal granted by His Majesty in Council upon a petition in that behalf presented by the intending appellant”.

The 2009 Rules contained no precise analogue of Rule 2 of the 1982 Rules. Rules 10 of the 2009 Rules read:

“Permission to appeal

10. In cases where permission to appeal is required, no appeal will be heard by the Judicial Committee unless permission to appeal has been granted either by the court below or by the Judicial Committee.

 

Also, Practice Direction 1 contained the description of the Privy Council’s jurisdiction:

“Section 2 The Jurisdiction of the Judicial Committee

1. Commonwealth Jurisdiction
2. APPEALS TO HER MAJESTY IN COUNCIL

2.1 An appeal lies from the countries listed at paragraph 2.2 [which include St. Christopher and Nevis] of which The Queen is head of State and from UK overseas territories and Crown Dependencies as follows.

(1) By leave of the local Court of Appeal. The circumstances in which leave can be granted will depend on the law of the country or territory concerned. Leave can usually be obtained as of right from final judgments in civil disputes where the value of the dispute is more than a stated amount and in cases which involve issues of constitutional interpretation. Most Courts of Appeal also have discretion to grant leave in other civil cases.

(2) By leave of Her Majesty in Council. The Judicial Committee has complete discretion whether to grant leave. It is mostly granted in criminal cases (where leave cannot usually be granted by the Court of Appeal) but it is sometimes granted in civil cases where the local Court of Appeal has for any reason refused leave.”

 

The Board opined that the Practice Direction 1 therefore contemplate the continuation of the old practice, whereby, even in cases where the appeal was under the local Constitution expressed to be as of right, application for leave to confirm this would be made in the first instance to the local Court of Appeal appealed from, and, failing the grant of such leave, special leave would then be sought from the Privy Council itself.

The Board thus concluded that in the circumstances the 2009 Order should be understood and read as not intending to disturb the practice existing hitherto whereby leave has been required either from the court appealed from or, that lacking, from the Privy Council itself. Finally having considered the judgment of the Court of Appeal, the Board concluded that the case was appropriate for an appeal to the Privy Council.