Bwia International Airways Ltd v Air Caribbean Ltd et Al

• Jurisdiction: Trinidad & Tobago
• Judge: PERMANAND, J.A.
• Judgment Date: 01 July 1998
• Neutral Citation: TT 1998 CA 31
• Docket Number: C.A. No. 151 of 1998
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 01 July 1998

Court of Appeal

Permanand, J.A.

C.A. No. 151 of 1998

Bwia International Airways Limited

and

Air Caribbean Limited et al

Appearances

Mr. Sonny Maharaj S.C. holding for Mr. E. Thorne Q.C.

And Mrs. R. Johncilla for the appellant

Mr. Alvin Fitzpatrick fro the first respondent

Mr. Martin Daly S.C. and Mr. E. Prescott

And Mr. R. Harnanan for the second respondent

Practice and Procedure - Order of certiorari — Appellant argued that the appeal from which the application stemmed was filed without leave and accordingly the application could not be maintained — Whether the Court has jurisdiction to grant a stay of execution of an order of certiorari — Section 38(2)(c) of the Supreme Court of Judicature Act Chap 4:01 considered — On first ground, Court held that leave was not required and that it did have jurisdiction to grant stay.

PERMANAND, J.A.

1 The order sought to be stayed by the summons filed on June 25 1998 was made on an application for judicial review. On June 18 1998 an order of certiorari was made by the Honourable Mr. Justice F. Hosein who quashed the decision of the Air Traffic Licensing Authority dated March 18 1998, which granted a licence to the appellant under the Air Navigation (Licensing of Air Services) Regulations. The appellant who appeared as an interested party was ordered to bear its own costs.

2 Before this court counsel for the respondent took a preliminary objection on the grounds: –

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That appeal from which this application stems was filed without leave and accordingly this application cannot be maintained; (2) The court has no power to grant a stay of execution of an order of certiorari.

3 With regard to (1) counsel referred to s. 38(2) (c) of the Supreme Court of Judicature Act. 4:01, which provides: –

• (2) No appeal shall lie, except by leave of the judge making the order or of the court of appeal from –

  • (a) an order made with the consent of the parties;

  • (b) an order as to costs;

  • (c) a final order of a judge of the High Court made in a summary.

4 also to C.A. 11/86 Earl et al v Gladstone Solomon where McMillan, J.A. ruled that proceedings for judicial review were summary in nature and accordingly leave was required.

5 In C.A. 124/97 Romain v WASA de la Bastide, C.J. stated, “I do not regard judicial review proceedings as falling within the category of summary proceedings”. However the learned Chief Justice went on to say that “the matter was not argued and therefore the question is left open for the possibility of review upon full argument”

6 Mr. Daly S.C. who appeared on behalf of the Authority informed this court that the Authority was not interested in the merits of the application but would render assistance to the court. With this usual candour and clear and concise submissions adopted the view of the court of appeal in the aforementioned C.A. 124/97 and maintained that the proceedings were not summary but however cautioned that if leave is required that in accordance with s. 38(2) the exercise of that function is by the court of appeal and not by a single judge whose powers are circumscribed by order 59 r. 20. Order 59 r. 20(1) provides: –

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(1) Without prejudice to the provisions of these rules, in any cause or matter pending before the court, a single judge of the court may upon application make orders for B (a) giving security for costs to be occasioned by any appeal; (b) a stay of execution on any judgment or order appealed form pending the determination of such appeal; (c) an injunction restraining the defendant in the action from disposing of or parting with the possession of the subject matter of the appeal pending the determination therefore;

7 and may hear, determine and make orders or any other interlocutory application.

8 Mr. Maharaj S.C. who had appeared before the Court of Appeal in C.A 124/97 Romain v WASA had indicated to that court that he was not adopting the position that leave is a mere irregular; Order 2 r 1 Rules of the Supreme Court refer. Counsel also relied on the judgment of Lord Denning, M.R Knighthood Assurance Consultants Ltd. V Meacher (1976) Solicitor's Journal Vol. 120 p. 117.

9 I considered the submissions and ruled with regard to (1) above that leave was not required and with regard to (2) I deferred the ruling until further arguments were heard.

10 On behalf of the appellant two affidavits were filed by Peter Hill Vice President, customer service and operations, and an affidavit was filed by Joanne Roberts, Director, Government Industry Affairs, both deponents are employed with BWIA. On behalf of the respondent an affidavit was filed by Leslie Ann Lucky-Smaroo, its Corporate Secretary and was made without prejudice to legal submissions that may be made at the hearing of the application.

11 On the facts it was strenuously argued by counsel for the appellant that disruptions has been caused and will continue to occur as well as a service financial impact due to the order of Hosein, J.

12 Mr. Fitzpatrick counter argued that the evidence can the affidavit as a whole discloses no disruption as the deponent on behalf of the respondent stated that an application for the grant of a licence could be heard within a few days and more so that the appellant had sought and was granted permission to operate a charter flight since the decision given by Hosein, J. Further that the respondent had provided adequate services on the route without complaint. Reference was made to C.A, 147/93 Loorkhoor and Ramkhalawan which referred to Linotype-Hell Finance Ltd. V Baker (1992) All ER 887 when Straughton, L.J. stated:

“… It seems to me that, if a defendant can say that without stay execution he will be ruined and that he has an appeal, which has some prospect of success, that is a legitimate ground for granting a stay of execution Y”

13 There is no evidence of the type of ruin as contemplated in the aforementioned case Mr. Fitzpatrick submitted.

14 In any event...