Upon review of the submissions made, the Caribbean Court of Justice (CCJ) on Tuesday dismissed the historic post-judgment application asking for its decision in a decades-long Essequibo land dispute to be reconsidered.
Though this recourse is available, this is the first time it has been utilized since the court was inaugurated 13 years ago.
The case in question pitted Kowsal Narine against his brother Deonarine Natram along with former owners of the land, Ashbourne Lipton Chan and Foster Gilford Chan and concerns 5.21 acres of land, which is located at Section ‘C,’ Golden Fleece, Essequibo.
In its decision which was delivered on May 10th, the court ruled that Narine had been in “sole and undisturbed possession of the land since 1st June 1991 and that any title, right or interest of Natram had been extinguished pursuant to the Act.” The ruling affirmed a High Court decision made by Justice Roxane George, who had ruled that Narine had been entitled to the land through prescriptive rights.
The Trinidad-based final appeal court on Tuesday handed down its decision on the post-judgment application one week after the date set by the court for both parties to file all their written submissions.
“The Court found that the issues raised in Mr. Natram’s complaint did not merit reopening the appeal. The CCJ accepted that while there was a counterclaim for damages. There was, as pointed out at the hearing by Mr Narine’s attorneys and accepted by Mr Natram’s attorneys, no specific claim for possession of the land. If there had been then section 22 would be applicable. There was therefore no basis to sustain an allegation that there were exceptional circumstances here to warrant the reopening of the appeal”, the court said in a press release yesterday which described the application as “unusual”.
It was explained that the Court decided to hear the matter since the final order had not been issued and relied on its recent decision in The Queen v Gilbert Henry, where it stated that when an order has not been finalized, a court may review its decision in exceptional circumstances.
New President of the CCJ, Justice Adrian Saunders in delivering the judgment, said that the court agreed with the Natram’s submission that, as the order in this matter has not been perfected, the Court is not `functus officio’ (of no further official authority or legal effect” and it is open to “us (the court) to exercise our residual jurisdiction to reopen this appeal”.
It was in this regard, he said that the court invited further written submissions by the parties, which were received on July 31st.
He said that as was stated in the case The Queen v Gilbert Henry, the court will only exercise its residual jurisdiction to inquire into an earlier decision where there are exceptional circumstances for doing so. “Having considered the application, we do not find that it discloses any such exceptional circumstances”, he said.
He added that the alleged exceptional circumstance concerned whether the court’s judgment was in error because application of Section 22 of the Title of Land (Prescription and Limitation) Act stopped time from running in Narine’s favour.
That section which is headed ‘Provisions as to set off or counterclaim’ states: “For the purposes of this Act, any claim by way of set-off or counterclaim shall be deemed to be a separate action and to have been commenced on the same date as the action in which the set-off or counter-claim is pleaded.”
Justice Saunders said that it was submitted that a) in this case there was a counterclaim; b) the effect of the filing of the counterclaim was to stop time from running in Narine’s favour and c) the Court’s judgment erroneously neglected to take account of a and b.
He pointed out that it is the case that there was a counterclaim in the appeal but there was no claim made in that counterclaim to which section 22 was alleged to be applicable. ”Without determining its likely success, such a claim may have been made if, for example, the counterclaim contained a specific claim for possession. But no such claim having been made, as the Applicant concedes, there simply is no basis upon which to allege that the exceptional circumstances claimed have arisen that justify the Applicant reopening the judgment”, he said, adding that it follows that the application must fail. “The litigation on the interpretation of section 22 must remain for another day”, Saunders said.
Attorney Anil Nandlall for Natram, in his application to the court, asked for the decision to be set aside and/or amended and/or varied; an order granting a rehearing of the appeal or, alternatively, that leave be granted to permit further arguments by the parties, more particularly the applicant, and such further or other orders which may be necessary and appropriate to prevent a miscarriage of justice.
Listed among the grounds for the application is the assertion that Narine deliberately withheld material facts from the CCJ, the Court of Appeal and the Commissioner of Title, which could have resulted in different outcomes.
It was argued that there were errors of law disclosed in the decision; that the matters aforesaid have caused a miscarriage of justice through no fault of Natram, who is the applicant/first named respondent and that the CCJ being the court of final resort “has an inherent power to correct any injustice or any miscarriage of justice caused by an earlier decision of this honourable court.”
It is stated, too, that this power and jurisdiction is necessary to ensure justice between litigants and public confidence in the administration of justice and that this “fit and proper” case presents the requisite exceptional circumstances for the court to invoke the aforesaid inherent power.
Justice Saunders said that given all that he had outlined previously, the application was dismissed with costs awarded to the Respondent (Narine) who was the Appellant in the substantive case.
Narine was represented by C V Satram, R Satram, Mahendra Satram and Visal Satram.