(Jamaica Gleaner) A five-member panel of the Court of Appeal yesterday handed down a decision that a single judge of the Court of Appeal was not empowered under the Constitution to hear a procedural appeal.
The decision was handed down in favour of former Scotiabank boss William ‘Bill’ Clarke who had raised a constitutional point on the issue.
The court agreed that three judges should hear such an appeal. Clarke’s appeal is now to be heard by three judges.
Clarke had asked the court to determine whether rule 2.4 of the Court of Appeal Rules, which gives the power to a single judge of the Court of Appeal to consider a procedural appeal, was outside the scope of the Constitution. A procedural appeal is one made against an order of a Supreme Court judge.
Attorneys-at-law Georgia Gibson Henlin, Marc Jones and Kamau Ruddock who represented Clarke also asked the court to determine whether the Rules Committee, in giving the single judge that power to consider procedural appeals, was acting outside the powers of the Constitution.
It was the court’s ruling that the consideration of procedural appeals on paper by three judges would not be in conflict with the open justice principle provided that the decision of the court was read in open court.
Solicitor General Nicole Foster Pusey, and attorneys-at-law Carlene Larmond and Lorraine Patterson represented the attorney general in the matter because of the importance of the constitutional issue raised.
The court called on the Rules Committee as a matter of urgent necessity to revisit rule 2.4 with a view to securing its compliance with the Constitution and the legislation as well as to preserving those elements of the procedure which can promote early disposal of appeals in purely procedural matters.
Clarke took the issue to the Supreme Court following a dispute with the bank over money he had paid into an account in relation to a BMW motor-car transaction before he went on early retirement in 2008.
The bank, represented by attorneys Michael Hylton and Sundiata Gibbs, asked the court to strike out Clarke’s claim or grant an order for a stay.
A Supreme Court judge struck out Clarke’s claim and ruled that the money which Clarke had paid into the account had been settled during the arbitration.
Clarke appealed and a Court of Appeal judge set aside the Supreme Court order and granted a stay of the matter. Clarke, in his further appeal, had asked the five-member panel to decide whether the Constitution made provision for a single judge to hear a procedural appeal.
A dispute arose as to Clarke’s entitlement after he retired and, after a lengthy legal battle, the matter went to arbitration and was settled in 2011.