Nazim Mohammed v The Transport Commissioner of the Ministry of Works and Transport

• Jurisdiction: Trinidad & Tobago
• Judge: V. Kokaram J.A.
• Judgment Date: 06 May 2024
• Neutral Citation: TT 2024 CA 26
• Docket Number: Civil Appeal S073/2022
• Court: Court of Appeal (Trinidad and Tobago)

Between

Nazim Mohammed

Appellant/Claimant

and

The Transport Commissioner of the Ministry of Works and Transport

Respondent/Claimant

Panel:

M. Dean-Armorer

V. Kokaram J.A.

M. Holdip J.A.

Civil Appeal S073/2022

Claim No. CV2020-03856

IN THE COURT OF APPEAL

Appearances:

Mr. Edwin Krishna Roopnarine for the Appellant.

Mr. Ravindra Nanga instructed by Ms. Rachel Wright for the Respondent.

REASONS *

Delivered byV. Kokaram J.A.

1 The main question to be determined on the Appellant's motion, made pursuant to rule 64.18(2) of the Civil Proceeding Rules 1998 (“CPR”) to discharge the order of the chamber court judge 1, is whether this appeal is

a procedural appeal

2 The chamber court judge held that view and dismissed the Appellant's application for directions filed pursuant to rule 64.11 CPR. The Appellant contends that the chamber court judge was plainly wrong to do so as the Appellant had properly filed its appeal as a “substantive appeal” on 1 ^st April 2022 against the decision of the trial judge made on 25 ^th March 2022. The Appellant contends that the trial judge's decision dealt with the substantive merits of his claim as a “rolled up hearing” of his application for leave to apply for judicial review and substantive relief under the Judicial Review Act Chap. 7:08. Accordingly, it having not received any notice from the court's registry pursuant to rule 64.8 CPR, he properly filed an application for directions under rule 64.11 CPR. I have noted of course that there is no issue taken by the Respondent that if this indeed is not a procedural appeal, the Appellant would have been entitled to apply for directions pursuant to rule 64.11 CPR for the further management of his appeal.

3 The implications of the chamber court judge's decision are important. Firstly, if this appeal is indeed a procedural appeal then there is no jurisdiction of the court to deal with an application for directions under rule 64.11 CPR. Second and more importantly, the appeal would have stood automatically dismissed on 25 ^th April 2022, 21 days after the filing of the notice of appeal as a consequence of the Appellant's failure to file written submissions in support of the procedural appeal pursuant to rule 64. 9(5) CPR which states:

“(5) The written submissions in support of the appeal (being a procedural appeal) shall be filed within 21 days of the filing of the notice of appeal failing which the appeal shall be dismissed unless the court extends the time for the filing of the submissions.”

Procedural History—What was before the trial judge

4 The procedural history is important. Regrettably, the Appellant has not put the full history before this court and a chronology of the orders actually made by the trial judge would have been very important. In the proceedings in the court below the Appellant challenged the decision of the Respondent to suspend his driver's permit. He did so by filing an application for leave to apply for judicial review on 17 ^th November 2020. The trial judge however by his order dated 19 ^th November 2020 indicated that the Appellant had in fact appealed the decision of the Respondent pursuant to section 88M (9) of the Motor Vehicles and Road Traffic Act Chap. 48:50 as amended by Act 9 of 2017 (“MVRTA”) 2 and ordered the Appellant to file a Fixed Date claim pursuant to part 60 CPR.3 Notably part 60 CPR deals exclusively with appeals made to the High Court and not claims for judicial review or administrative order under part 59 CPR.4 Part

60 provides a direct route for an appeal to the High Court where the relevant statutory provisions so provide. In Jonas Dukhedin Lalla v Commissioner for Co-Operative Development CV2015-00554 Dean Armorer J (as she then was) noted:

“The procedure by which one institutes an appeal to the High Court is set out at Part 60 CPR. The appellate function of the High Court was considered by Mendonça, J.A. in Godfrey Rajkumar v. Medical Board, where Mendonça, J.A, had this to say: “The appeal to a Judge in Chambers is truly appellate and is not supervisory. So too is the appeal to this Court. This Court is therefore fully entitled to substitute its own decision and set aside the decision of the Council and the Court below. It may also amend or vary it.”

5 The re-amended Fixed Date claim that was filed however sought several declaratory reliefs under the Judicial Review Act and the Constitution alleging that the Appellant's constitutional rights and public law rights were breached by the Respondent and sought to quash the decision to suspend his driver's permit.

6 That claim was met by an application made by the Respondent to dismiss the claim pursuant to rule 26.2(1)(b) CPR.5 It was indeed a preliminary issue that was raised frontally by the Respondent whether the claim amounted to an abuse of process there being an alternative suitable remedy namely a proper appeal under section 88M (9) of the MVRTA. Notably the application and ultimate decision of the trial; judge on that application was made prior to the Court of Appeal's decision in Zachary De Silva v Licensing Authority and Transport Commissioner CA P028/2021 which confirmed

that the Court of Appeal is the proper forum to entertain appeals under section 88M(9) of the MVRTA and not the High Court

7 The trial judge struck out the Fixed Date claim on the basis that it amounted to an abuse of process. His very brief reasons in an email dated 25 ^th March 2022 demonstrated that his attention was focused only on the issue of whether there was a suitable alternative remedy.6

A Procedural Appeal or Substantive Appeal?

8 Against this procedural backdrop, examining the nature of the application before the trial judge, and the decision of the court, we do not agree with the Appellant that the chamber court judge was plainly wrong in her determination. In fact, we are of the view that the chamber court judge was plainly right to hold that this is a procedural appeal.

9 We say so for the following reasons.

10 There are two main issues that usually arise in making a determination whether an appeal is a procedural or substantive appeal—(a) does the decision directly decide the substantive issues. If it does not, then (b) is it subject to any of the exclusions set out in rule 64.1(2) CPR. As a matter of definition, a procedural appeal is “an appeal from a decision of a registrar, master or judge which does not directly decide the substantive issues in a claim”, subject to a number of exclusions. These exclusions pursuant to

rule 64.1(2) CPR are: “(a) any such decision made during the course of the trial or final hearing of the proceedings; (aa) any decision with respect to the admissibility of evidence in the trial or hearing;”; (b) an order granting any relief made at an application for judicial review (including an application for leave to make the application) or under section 14(1) of the Constitution under Part 56; (c) the following orders under Part 17: (i) an interim injunction or declaration; (ii) a freezing injunction; (iii) an order to deliver up goods; (iv) any order made before proceedings are commenced or against a non-party; and (d) an order for committal or confiscation of assets under Part 53; (e) an order as to costs...