Ex parte approach should not have been allowed - Chancellor - Massiah disagrees By Patrick Denny Stabroek News March 3, 2000 Tuesday's decision by the Full Court to stay proceedings in the Guyana Court of Appeal is considered in some circles here to be unprecedented and the legal community was abuzz yesterday on its implications. The Full Court's ruling pertained to the hearing of an appeal in the case involving condemned Essequibo murderers Abdool Saleem Yasseen and Noel Thomas. The Full Court's action is being backed by former chancellor of the judiciary, Keith Massiah SC, who feels that the High Court judges have got it right and those of the Court of Appeal have got it wrong. But he confessed yesterday to Stabroek News that he knew of no precedent even though counsel for former PNC General Secretary Aubrey Norton had sought to do the same thing in seeking to block a Court of Appeal panel, composed similarly to the present one, from hearing an appeal from a decision rendered by Chief Justice Desiree Bernard. The matter being heard was Norton v the Chairman of the Elections Commission, the Chancellor of the Judiciary and former President Janet Jagan. The panel then, as now, comprised Chancellor Cecil Kennard and Justices of Appeal, Prem Persaud and Lennox Perry. In her decision, the Chief Justice had declined jurisdiction in the case brought by Norton in which he had sought to block the swearing-in of Jagan as president. That case has been assigned to Justice Claudette La Bennett and is yet to be heard. Massiah's contention is that the conservatory order is the only available remedy in a case where a litigant believes that his fundamental right to an impartial hearing as guaranteed by the Constitution is likely to be infringed or is in imminent danger of being infringed. He contends, like Justice Carl Singh who delivered the Full Court decision, that it is only the High Court which is conferred with this jurisdiction under Article 153 of the Constitution, a provision which exists in every constitution since independence. The Full Court which comprised Justices Desmond Burch-Smith and Singh, on Tuesday issued a conservatory order preventing the Court of Appeal as currently constituted from hearing an appeal brought by Attorney General, Charles Ramson, SC, and Director of Prisons, Dale Erskine, in which the condemned Essequibo murderers are the respondents. The Attorney General is seeking to have the Court of Appeal overturn a decision by the Full Court comprising Chief Justice Desiree Bernard and Justices Deonarine Biscessar and B.S. Roy which had found that Justice Winston Moore was wrong in not continuing a stay of execution he had granted on September 12, which halted the planned execution of the men the following day. Tuesday's order is being studied by the Court of Appeal to whom it was directed to determine whether or not the matter, which should have been heard on Wednesday, could be proceeded with on Monday next. Some legal observers see as the way out for the Court of Appeal to rule that the order was not binding on it, on the ground that it did not acknowledge as binding the 1986 ruling in the Mitchell et al v Attorney General et al by the then Grenadian Court of Appeal, at that time Grenada's highest court. The Mitchell case was one of the principal authorities on the powers of the High Court cited by counsel for the condemned Essequibo murderers, Nigel Hughes and Stephen Fraser. The court ruled in that case that the High Court and not the Court of Appeal was the proper forum for obtaining remedies for infringement or likely infringement of a fundamental right. The Chancellor told Stabroek News yesterday that if he and his colleagues found that the order was not binding on them, they would proceed on Monday to hear the appeal in which Thomas and Yasseen are the respondents. He contended that the Full Court should not have entertained an ex parte appeal in a matter in which bias is being alleged against three senior judges without their being heard. He noted the explanation by Justice Singh who delivered the Full Court's ruling on Tuesday, but observed that he did not say why the judges against whom the bias was alleged were not notified, as well as the Attorney General who was a party to the action. "Even if the lawyers had neglected to inform them, I feel it was the duty of the court to enquire as to why counsel for the judges and the Attorney General were absent." The Chancellor said that if counsel for himself and colleagues had been heard the Full Court might not have made the order that it did. Neither Massiah nor Hughes share the view that the Full Court should not have heard the motion on an ex parte application. Massiah said that because the inter partes procedure was so cumbersome it did not provide the urgency required since the appeal could have been proceeded with while the motion was still waiting to be heard. Hughes's contention is that the order under which the Full Court was approached did not contemplate an inter partes hearing of a motion from the refusal of an ex parte application for a similar purpose by a lower court. Hughes observed that Order 46, Rule 16 "did not contemplate an inter partes hearing." The relevant High Court order, which is included in the Laws of Guyana at Chap 3:02, reads, "Where an ex parte application has been refused by the court below, an application for a similar purpose may be made to the Full Court ex parte within four days from the refusal or within such enlarged time as a judge or the Full Court may allow." Hughes explained that at a hearing on Tuesday before Justice Roy, counsel for the three senior judges, Ashton Chase, SC, had refused to give an undertaking to the court that the Court of Appeal as currently constituted would not proceed with the hearing of the appeal the following day until the matter had been determined in the High Court. Chase's reason for not being able to give the undertaking, according to Hughes, was that he had no instructions from his clients. Hughes said that that same morning he had approached the Chief Justice explaining that because of Chase's refusal to give the requested undertaking, the appeal was likely to be heard the following day and had requested an early sitting of the Full Court. He said, too, that at the same hearing Justice Roy had excused himself from any further part in the hearing because the grounds being raised in the application before him of bias and lack of independence could likely be raised against him as he was himself a temporary judge and was a member of the court whose ruling was being appealed. Justice Roy had been invited by the Attorney General to consider whether he should continue to hear the inter partes application. At that hearing too Justice Roy had granted Chase and the Attorney General seven days within which to file their affidavits in answer. However, he did not extended the conservatory order he had provisionally given for them to file appeals against his refusal to issue the order on an ex parte order application on February 21. Hughes said that Justices Burch-Smith and Singh were assigned and the court sat and heard their arguments and authorities in support of their application from 1:30 pm to around 6 pm. The court was then adjourned to 8:30 pm when its decision was delivered by Justice Singh.