The Judges of the Court of Appeal of the Eastern Caribbean have granted leave to Jhwanie Gage et al to go to the Caribbean Court of Justice (CCJ) in a “freezing asset case” brought by the Attorney General of Dominica in which his land was frozen by and the decision upheld by the Court of Appeal.
In her ruling Mde. Justice Vicki Ann Ellis Justice of Appeal stated that she was satisfied that despite the decidedly oblique and belated way in which the applicants have treated this Unregistered Freezing Order Issue both in the court below and on appeal, it was an issue which was sufficiently pressed by the applicants both in written and oral submissions before the Court. It is also clear that the respondent confronted this issue in his submissions and in so doing made it incumbent on the Court to address the issue. Whether the Court chose to deal with this as a free-standing issue or as part of its reasoning under the ‘Indefeasibility of Title’ ground or indeed whether it simply held that the issue did not fall to be determined by the Court, it seems to me that the issue ought to have been addressed by the Court in its judgment.
The applicants have now advanced the Unregistered Freezing Order Issue as the fulcrum of their application for leave to appeal to the CCJ, and they say that in ignoring this issue, they have been deprived of their right to have all their issues of significance determined by the Court. Given how the applicants have dealt with the matter during the appeal proceedings, in my judgment this argument has some force.
Moreover, the applicants’ case appears to advance that the non-registration of the freezing order cuts across everything that was done about the registered property and they say that the Court’s failure to decide this issue leaves them restricted by a freezing order which should have no effect as against registered land and which therefore could not impact the indefeasibility of their title. The resolution of this issue was clearly vital to the Court’s conclusions and yet it has not been resolved definitively. I am satisfied that this is enough to call into question the accuracy of the COA Judgment such as to satisfy the ‘or otherwise’ limb of section 106(2)(a) of the Constitution.
Moreover, notwithstanding the recent legislative changes to the POCA which has repealed the requirement for the Freezing Order to be registered, it is apparent that the Unregistered Freezing Order Issue in the context of registered land raises a discrete novel point of law that has not been previously decided by the courts in the Eastern Caribbean or indeed further afield. It is also one that could benefit from guidance by the CCJ on the law.
As to the issue of costs, I note that no such costs order was made at the stage of the Court of Appeal, and I therefore find it appropriate in the circumstances to make a similar order.
Order:
I would therefore order as follows:
(i) The applicants are granted leave to appeal to the Caribbean Court of Justice under section 106(2)(a) of the Constitution of the Commonwealth of Dominica against the decision of the Court of Appeal rendered on 11th June 2021 and re-issued 15th June 2021, on the following conditions:
(a) The applicants do lodge with the Registrar of the Supreme Court of the Commonwealth of Dominica, security for costs in the sum of EC $10,000.00 within 90 days of the date hereof; and 29 (b)
The applicants within 90 days of the date hereof shall furnish the Registrar of the Supreme Court of the Commonwealth of Dominica, with a list of documents which they propose should be included in the Record of Appeal.
(ii) Upon compliance with the conditions herein stated, the Registrar of the Supreme Court of the Commonwealth of Dominica shall issue a Certificate of Compliance in conformity with Form 2A, Schedule 3 of the Caribbean Court of Justice (Appellate Jurisdiction Rules) 2021 and within 7 days of its issue serve copies of the said Certificate on the applicants and the intended respondent and shall notify the Registrar of the Caribbean Court of Justice.
(iii) No order as to costs.
Mr. Justice of Appeal Trevor Ward Justice of Appeal and Mr. Gerard St. C Farara Justice of Appeal [Ag.] all concurred with the decision.
Appearances: Mr. Douglas Mendes SC with him Ms. Gina Dyer-Munro for the Applicants and Ms. Tameka Burton for the Respondent.
See attached full judgment of the court.