9th – 12th March 2015

Court of Appeal Sitting Antigua and Barbuda 9th – 12th March 2015 JUDGMENT Case Name: Francis James v National Insurance Board [GDAHCVAP2013/0016] Date: Monday, 9 th March 2015 Coram: The Hon. Dame Janice M. Pereira, Chief Justice The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: Ms. C. Debra Burnette holding for Mr. Derick F. Sylvester and Ms. Cathisha Williams Respondent: Mrs. Tracy Benn-Roberts holding for Mr. Ruggles Ferguson and Ms. Anyika Johnson Issues: Civil appeal – Employment law – Whether accident occurred in the course of employment – Whether injury was sustained when performing duties or acts reasonably incidental to duties – National Insurance (Employment Injury Benefit) Regulations – National Insurance (Determination of Claims and Questions) Regulations Result / Reason: Held: dismissing the appeal with costs to the respondent fixed at two-thirds of the costs awarded in the court below, that: An accident whereby a person suffers a personal injury shall be deemed to be an employment accident if it arises out of and in the course of his employment. A person travelling on the highway will be acting in the course of his employment if, and only if, he is at the material time going about his employer’s business, that is, if he is doing what he was employed to do or something reasonably incidental thereto. Determining whether or not he was so engaged at the material time requires a fact sensitive approach. National Insurance (Determination of Claims and Questions) Regulations SRO 5 of 1983, Laws of Grenada applied; Smith v Stages [1989] ICR 272 applied. The starting position is that an employee travelling from his ordinary residence to his regular place of work is not acting in the course of his employment. The evidence in this case did not show otherwise. While the appellant’s duties entailed travel to and attendance at other facilities, his main work base was the St. Georges Port. He sustained his injuries while commuting from his home to his main work base along a route that he described as his normal route of travel to get to work. There he intended to participate in a meeting held during normal office hours. There was no evidence presented to the lower court which could justify a finding that the appellant’s home was a work base; he was not, at the material time, travelling between work bases. Smith v Stages [1989] ICR 272 applied; Nancollas v Insurance Officer [1985] 1 All ER 833 distinguished; Fong Christina v Clever View Group Ltd [2011] HKEC 1686 distinguished; Comcare v PVYW [2013] HCA 41 distinguished. Commuting from his home to his regular work place was not ‘reasonably incidental’ to the appellant’s employment. The act being performed by the employee must be reasonably incidental to the actual work that he is employed to do and not merely to the larger concept of being employed. These relevant findings of fact by the learned trial judge have not been shown to be manifestly wrong so as to permit an appellate court to arrive at different findings. Further, the judge had not erred in her application of the relevant law. Chief Adjudication Officer v Rhodes [1999] ICR 178 applied; Faulkner v Chief Adjudication Officer [1994] PIQR 244 applied. STATUS HEARING Case Name: Reynold Isaac v The Queen [ANUHCRAP2012/0006] Date: Monday, 9 th March 2015 Before: The Hon. Mr. Mario Michel, Justice of Appea l Appearances: Appellant: Mr. Kendrickson Kentish holding papers for Mr. Sherfield Bowen Respondent: Mr. Anthony Armstrong, Director of Public Prosecutions with Ms. Shannon Jones-Gittens Issue: Status of the matter Result / Order / Reason: [Oral delivery] Appeal is withdrawn by the appellant and accordingly dismissed. Case Name: Simon Davis v The Queen [ANUHCRAP2012/0007] Date: Monday, 9 th March 2015 Before: The Hon. Mr. Mario Michel, Justice of Appeal Appearances: Appellant: Mr. Kendrickson Kentish holding papers for Mr. Sherfield Bowen Respondent: Mr. Anthony Armstrong, Director of Public Prosecutions with Ms. Shannon Jones-Gittens Issue: Status of the matter Result / Order: [Oral delivery] The Registrar of the High Court is to cause a transcript of the proceedings to be prepared and counsel for the parties notified of the availability of the transcript within one (1) month of the date of this order. Thereafter the appeal is to proceed in accordance with the rules. Case Name:

[1]Ronnie James

[2]Sean James v [1] Georgice Mendes Blackman [ANUHCVAP2012/0036] Date: Monday, 9 th March 2015 Before: The Hon. Mr. Mario Michel, Justice of Appeal Appearances: Appellant: Mr. Lawrence Daniel Respondent: Ms. E. Ann Henry, QC Issues: Status of the matter – Application to strike out notice of appeal Result / Order: [Oral delivery] Notice of appeal filed on 4 th December 2012 is struck off. Costs to the respondent agreed in the sum of $2,000.00. Case Name: Paulette Matthew v Antigua and Barbuda Port Authority Board of Commissioners [ANUHCVAP2008/0020] Date: Monday, 9 th March 2015 Before: The Hon. Mr. Mario Michel, Justice of Appeal Appearances: Appellant: No appearance Respondent: No appearance Issue: Status of the matter Result / Order / Reason: [Oral delivery] The parties having been served notice of today’s hearing date, and neither party appearing to prosecute the appeal, the appeal is dismissed for want of prosecution. Case Name: Ultramarine (Antigua) Ltd. v Sunsail (Antigua) Ltd. [ANUHCVAP2012/0023] Date: Monday, 9 th March 2015 Before: The Hon. Mr. Mario Michel, Justice of Appeal Appearances: Appellant: No appearance Respondent: No appearance Issue: Status of the matter Result / Order / Reason: [Oral delivery] There being no evidence of notice having been served on the parties of the status hearing, and no appearance of the parties, the matter is adjourned to status hearing at the next sitting of the Court of Appeal during the week of 13 th July 2015. Case Name: [1] Jessica Hood v [1] Free Trade and Processing Zone Commission [2] Houghton Forde

[3]Vere Carbon

[4]Angella Gonsalves [ANUHCVAP2012/0018] Date: Monday, 9 th March 2015 Before: The Hon. Mr. Mario Michel, Justice of Appeal Appearances: Appellant: Mr. Kendrick Kentish holding papers for Dr. David Dorsett Respondent: No appearance for the 1 st respondent Mr. Loy Weste for the 2 nd respondent Ms. Kema Benjamin for the 3 rd respondent No appearance for the 4 th respondent Issue: Status of the matter Result / Order: [Oral delivery] The transcript of the proceedings having been prepared and the parties notified thereof, the record of appeal shall be prepared by the appellant in accordance with Part 62 of the Civil Procedure Rules and the appeal to proceed thereafter in accordance with the rules. Case Name: Leroy Silston v Ruthlyn Chambers [ANUHCVAP2012/0008] Date: Monday, 9 th March 2015 Before: The Hon. Mr. Mario Michel, Justice of Appeal Appearances: Appellant: Mr. Kendrickson Kentish Respondent: Ms. Eleanor Solomon Issue: Status of the matter Result / Order / Reason: [Oral delivery] The transcript of the proceedings having been prepared and the parties notified thereof, the record of appeal is to be prepared by the appellant in accordance with Part 62 of the CPR. Thereafter the appeal is to proceed in accordance with the rules. Case Name: George W. Bennett Brysons & Co. Ltd. Trading as Bryson’s Shipping v George Purcell trading as Hortico Landscaping and Nursery [ANUHCVAP2011/0024] Date: Monday, 9 th March 2015 Before: The Hon. Mr. Mario Michel, Justice of Appeal Appearances: Appellant: Mr. Loy Weste Respondent: No appearance Issue: Status of the matter Result / Order: [Oral delivery] Matter to be removed from the list. Reason: There was an error in listing this matter. Case Name: [1] Colin George [2] Iva May George v [1] Morriel Jenneth George-Carr [ANUHCVAP2012/0016] Date: Monday, 9 th March 2015 Before: The Hon. Mr. Mario Michel, Justice of Appeal Appearances: Appellant: No appearance Respondent: Ms. Sherri-Ann Bradshaw holding papers for Dr. David Dorsett Issue: Status of the matter Result / Order: [Oral delivery] Status hearing is further adjourned to the next sitting of the Court of Appeal in Antigua and Barbuda during the week commencing the 13 th July 2015. Reason: There was no appearance of the appellant. Case Name: Sylvia Cox v Eugene Joseph [ANUHCVAP2012/0024] Date: Monday, 9 th March 2015 Before: The Hon. Mr. Mario Michel, Justice of Appeal Appearances: Appellant: Mr. Lawrence Daniel Respondent: Ms. E. Denecia Thomas (watching brief) Issue: Status of the matter Result / Order: [Oral delivery] Further status hearing of this matter is adjourned to the next sitting of the Court of Appeal in Antigua and Barbuda during the week commencing 13 th July 2015. Reason: To allow parties to file any applications necessary. Case Name: [1] Albert Smith v [1] The Chief Establishment Officer [2] Chairman of the Police Service Commission [3] Commissioner of Police [ANUHCVAP2013/0010] Date: Monday, 9 th March 2015 Before: The Hon. Mr. Mario Michel, Justice of Appeal Appearances: Appellant: Mr. Lawrence Daniel Respondent: No appearance Issue: Status of the matter Result / Order / Reason: [Oral delivery] The transcript of proceedings having been prepared, and the parties having been notified thereof, the record of appeal shall be prepared by the appellant in accordance with Part 62 of the CPR. Thereafter he appeal is to proceed in accordance with the rules. Case Name: [1] Vere Bird Jr. [2] Lester Bryant Bird [3] Gaston Browne [4] Mary Claire Hurst

[5]Molywn Joseph

[6]Sharon Kentish

[7]Jim Galloway v [1] The Commissioner of Police [ANUMCRAP2010/0015] Date: Monday, 9 th March 2015 Before: The Hon. Mr. Mario Michel, Justice of Appeal Appearances: Appellant: No appearance Respondent: Mr. Anthony Armstrong, Director of Public Prosecutions with him Ms. Shannon Jones-Gittens Issue: Status of the matter Result / Order / Reason: [Oral delivery] The transcript of the proceedings having been prepared and counsel notified thereof, the record of appeal to be prepared, filed and served by the appellant on or before 20 th April 2015. Thereafter the appeal to proceed in accordance with the rules. Case Name: Troy Robinson v The Commissioner of Police [ANUMCRAP2012/0001] Date: Monday, 9 th March 2015 Before: The Hon. Mr. Mario Michel, Justice of Appeal Appearances: Appellant: In person Respondent: Mr. Anthony Armstrong, Director of Public Prosecutions with him Ms. Shannon Jones-Gittens Issue: Status of the matter Result / Order / Reason: [Oral delivery] At the request of the appellant, status hearing of the matter is adjourned to the next sitting of the Court of Appeal in Antigua and Barbuda in the week commencing 13 th July 2015 in order to enable the appellant to get legal representation to prosecute the appeal. Case Name: Anthony Browne v The Commissioner of Police [ANUMCRAP2012/005A] Date: Monday, 9 th March 2015 Before: The Hon. Mr. Mario Michel, Justice of Appeal Appearances: Appellant: Mr. Sherfield Bowen holding papers for Mr. Damien Benjamin Respondent: Mr. Anthony Armstrong, Director of Public Prosecutions with him Ms. Shannon Jones-Gittens Issue: Status of the matter Result / Order / Reason: [Oral delivery] The status hearing of MCPAPP2012/005A Anthony Brown v Commissioner of Police and the un-numbered Criminal Appeal of Robert Anthony Browne is adjourned to the next sitting of the Court of Appeal in Antigua and Barbuda in the week commencing 13 th July 2015 in order to enable the parties to sort out the issue of identity and the legal representation of the appellant(s). Case Name: Romar Graham v The Commissioner of Police [ANUMCRAP2012/0006] Date: Monday, 9 th March 2015 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: No appearance Respondent: Mr. Anthony Armstrong, Director of Public Prosecutions with him Ms. Shannon Jones-Gittens Issue: Status of the matter Result / Order / Reason: [Oral delivery] The status hearing of the matter is adjourned to the next sitting of the Court of Appeal in Antigua and Barbuda commencing on the week of the 13 th July 2015 to allow counsel for the appellant to advise himself as to the way forward. Case Name: James Pelle v The Commissioner of Police [ANUMCRAP2011/0001] Date: Monday, 9 th March 2015 Before: The Hon. Mr. Mario Michel, Justice of Appeal Appearances: Appellant: Mr. Sherfield Bowen holding papers for Mr. Damien Benjamin Respondent: Mr. Anthony Armstrong, Director of Public Prosecutions with him Ms. Shannon Jones-Gittens Issue: Status of the matter Result / Order / Reason: [Oral delivery] The record of appeal having been filed on the 6 th February 2015 containing the notice of appeal and transcript of the proceedings, the appeal shall proceed in accordance with the rules. Case Name: [1] Constian Robert Cupid v [1] The Commissioner of Police [2] Asquith Riviere [ANUMCRAP2005/0001] Date: Monday, 9 th March 2015 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: No appearance Respondent: No appearance Issue: Status of the matter Result / Order: [Oral delivery] The appeal is removed from the list. Reason: Matter was on the list in error. Case Name: Mandella Victor Spencer v The Commissioner of Police [ANUMCRAP2011/0002] Date: Monday, 9 th March 2015 Before: The Hon. Mr. Mario Michel, Justice of Appeal Appearances: Appellant: Mr. Sherfield Bowen holding papers for Mr. Damien Benjamin Respondent: Mr. Anthony Armstrong, Director of Public Prosecutions with him Ms. Shannon Jones-Gittens Issue: Status of the matter Result / Order / Reason: [Oral delivery] The Court notes that there is a document on file and it was apparently filed as a transcript of the proceedings before the magistrate. The Court notes however that in so far as the document purports to be a transcript of the proceedings, it is totally unsatisfactory both in form and substance because it is neither signed nor sufficient. The trial magistrate is hereby directed to cause a proper transcript of proceedings to be prepared and to be signed and transmitted to the Registrar of the High Court for filing within one (1) month of the date of this order. Case Name: [1] Garfield Morrison v [1] Chief Magistrate [2] Ivan Walters [3] The Commissioner of Police [ANUMCRAP2010/0002] Date: Monday, 9 th March 2015 Before: T he Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: No appearance Respondent: Mr. Anthony Armstrong, Director of Public Prosecutions with him Ms. Shannon Jones-Gittens Issue: Status of the matter Result / Order: [Oral delivery] Status hearing is further adjourned to the next sitting of the Court of Appeal in Antigua and Barbuda on the 13 th July 2015, this being the final adjournment. Counsel Mr. John Fuller who appeared on the last occasion is to be notified of the adjourned status hearing. Instructions given by the Court on the 7 th July, 2014 are to be complied with within two (2) months of today’s hearing date. The Chief Magistrate Joanne Walsh is to provide an affidavit indicating the circumstances surrounding the Notes of Evidence in the appeal, being aware that the notes are those of the former Magistrate Mr. Ivan Walters. The Director of Public Prosecutions to communicate the new date of the status hearing with Mr. John Fuller. Registrar of the High Court is requested to have the Bailiff serve the appellant with a copy of this order. Case Name: Robert Anthony Browne v The Commissioner of Police [ANUMCRAP0000/0000] Date: Monday, 9 th March 2015 Before: The Hon. Mr. Mario Michel, Justice of Appeal Appearances: Appellant: Mr. Sherfield Bowen holding papers for Mr. Damien Benjamin Respondent: Mr. Anthony Armstrong, Director of Public Prosecutions with him Ms. Shannon Jones-Gittens Issue: Status of the matter Result / Order / Reason: [Oral delivery] The status hearing of MCPAPP2012/005A Anthony Brown v Commissioner of Police and the un-numbered Criminal Appeal of Robert Anthony Browne is adjourned to the next sitting of the Court of Appeal in Antigua and Barbuda in the week commencing 13 th July 2015 in order to enable the parties to sort out the issues of identity and the legal representation of the appellant(s). Case Name: Washington Bramble v The Commissioner of Police [ANUMCRAP2013/0002] Date: Monday, 9 th March 2015 Before: The Hon. Mr. Mario Michel, Justice of Appeal Appearances: Appellant: In person Respondent: Mr. Anthony Armstrong, Director of Public Prosecutions with him Ms. Shannon Jones-Gittens Issue: Status of the matter Result / Order / Reason: [Oral delivery] Having regard to the appellant’s expressed concerns about the accuracy of the transcript of the proceedings before the magistrate and having regard to the impossibility of complying with the appellant’s request for the production of an audio recording of the proceedings before the magistrate, the Appellant is hereby directed to file and serve on all parties, an affidavit setting out all the information alleged to have been inaccurately stated or omitted from the transcript and exhibiting therewith any contemporaneous notes or other relevant materials which he may have to substantiate the averments in his affidavit. The appellant’s affidavit shall be filed within one (1) month of the date of this order. The Court shall thereafter give further directions in relation to the conduct of the appeal. Further status hearing of the appeal is adjourned to the next sitting of the Court of Appeal in Antigua and Barbuda during the week commencing 13 th July 2015. Case Name: Errol Cleofoster Barnes v The Commissioner of Police [ANUMCRAP2013/0001] Date: Monday, 9 th March 2015 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: No appearance Respondent: Mr. Anthony Armstrong, Director of Public Prosecutions with him Ms. Shannon Jones-Gittens Issue: Status of the matter Result / Order / Reason: [Oral delivery] The matter is adjourned for further status hearing in the Court of Appeal sitting in Antigua and Barbuda during the week commencing 13 th July 2015 to allow counsel for the appellant to be able to advise the Court of the appellant’s posture in this appeal. Case Name: Christan Devon Hinds v The Commissioner of Police [ANUMCRAP2013/0003] Date: Monday, 9 th March 2015 Before: The Hon. Mde. Louise E. Blenman, Justice of Appeal Appearances: Appellant: Ms. Sherri-Ann Bradshaw holding papers for Dr. David Dorsett Respondent: Mr. Anthony Armstrong, Director of Public Prosecutions with him Ms. Shannon Jones-Gittens Issue: Status of the matter Result / Order / Reason: [Oral delivery] Matter is adjourned to the next sitting of the Court of Appeal in Antigua and Barbuda commencing on the 13 th July 2015 to allow counsel for the appellant to advise himself as to the way forward. APPLICATIONS AND APPEALS Case Name: Jerome Jenkins v His Lordship The Honourable Justice Brian Cottle (In his capacity as an appellate tribunal constituted by s. 16 of the Architects (Registration) Act) [ANUHCVAP2015/0003] Date: Monday, 9 th March 2015 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: Dr. David Dorsett Respondent: Ms. Rose-Ann Kim Issue: Application for leave to appeal Result / Order: [Oral delivery] Leave to appeal is hereby granted. Notice of appeal to be filed in accordance with the rules of court. Case Name: [1] Deidre Pigott Edgecombe [2] Nordell Edgecombe v [1] Antigua Flight Training Centre [ANUHCVAP2015/0005] Date: Monday, 9 th March 2015 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: Dr. David Dorsett Respondent: Mr. Anthony Greer Issue: Application for leave to appeal Result / Order: [Oral delivery] Leave to appeal is hereby granted. The appeal is to be filed and pursued in accordance with the rules of court. Case Name: Kenard Byron v Eastern Caribbean Amalgamated Bank (ECAB) [ANUHCVAP2012/0010] Date: Monday, 9 th March 2015 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: Dr. David Dorsett Respondent: Ms. Tracy Benn-Roberts Issue: Application to discharge order of single judge Result / Order: [Oral delivery] The notice of appeal is restored and the order striking out the notice is set aside and the notice of appeal is deemed to be validly filed as at 15 th May 2014. The appellant shall bear the costs occasioned by the default to the respondent, fixed in the sum of $4000.00 to be paid by 31 st March 2015. The record of appeal and skeleton arguments of the appellant filed on the 16 th December 2014 are deemed to be validly filed as of that date. The respondent shall file and serve skeleton arguments by 8 th April 2015. The appellant shall have fourteen (14) days to file and serve a skeleton argument in reply, if necessary. Reason: This was an application to set aside the order of a single judge made on an application to strike out a notice of appeal which was not timely filed and was out of time by 4 days. The Court had regard to the Civil Procedure Rules 2000 (as amended) part 26.9 in respect of its powers to put matters right and also in relation to the said rule, specifically 26.9 (2) which states that an error of procedure or failure to comply with a rule, practice direction, court order or direction does not invalidate any step taken in the proceedings, unless the court so orders. Late filing of a notice of appeal does not, without more, invalidate a step of the filing of the notice as there is no express sanction stating that a late notice is thereby rendered invalid. The learned judge had before him an application to strike out the notice of appeal on the basis of it being untimely filed. It was then that the appellant applied to the court asking that the court put matters right pursuant to 26.9. This involves the exercise of the courts discretion. The guiding principles relevant to the exercise of the courts discretion have been established. The Court must have regard of all the circumstances of the case. It is unusual for the court to exercise the draconian remedy of striking out a case unless the circumstances are such to warrant that measure. Thus, the court on the exercise of its discretion must consider whether that remedy is warranted or whether some alternative meets the justice of the case having regard to the overriding objective. It is not challenged that the appeal has a realistic prospect of success; indeed the focus has been on the almost two year delay before the appellant’s success to put matters right. The respondent rightly says that it has been prejudiced by the delay; however there is also nothing in the material before the court that shows that the appellant being aware of the late filing intentionally delayed the matter. But it strikes the court that both parties seem to be of the view that the appeal was on a proper footing until after almost two years had elapsed. And then the realisation that the notice of appeal was not timely. In all the circumstances, this Court is of the view that the appropriate course would have been not to grant the draconian remedy of striking out the appeal but to make an order which will better meet the justice of the case and account for the prejudice caused to the respondent by the delay. We are of the view that that prejudice can be remedied in a proper cost order in the circumstances. The learned single judge, in our view, erred in giving way to the strike out application and not having addressed his mind to more proportionate response to the appellant’s recourse. Case Name: Brown’s Bay Resort Limited v Luca Pozzoni Limited [ANUHCVAP2010/0033] Date: Monday, 9 th March 2015 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: Dr. David Dorsett Respondent: Mr. Lenworth Johnson Issue: Application for final leave to appeal to Her Majesty in Council Result / Order / Reason: [Oral delivery] Matter stood down to Wednesday, 11 th March 2015 in order for the certificate of appeal to be produced. Case Name: Hilroy Humphreys v The Queen [ANUHCRAP2011/0004] Date: Tuesday, 10 th March 2015 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: Mr. Sherfield Bowen Respondent: Mr. Anthony Armstrong, Director of Public Prosecutions with him Ms. Shannon Jones-Gittens Issue: Application for appeal to be restored Result / Order: [Oral delivery] Application to restore appeal is dismissed. Reason: The Court had regard to the application filed by way of motion seeking the restoration of an appeal, number 4 of 2011, which was, on 26 th November 2013, withdrawn and discontinued with the leave of the court and professional counsel acting on behalf of the appellant, and wherein the appeal was accordingly dismissed. That certificate of result of appeal was given and dated 26 th November 2013. The affidavit in support sets out a chronology of events. As from December 2013, it was clear that the appellant would have known the result of the application to withdraw and to have his appeal dismissed. No steps were taken as from then until 3 rd March 2015, save and expect the writing of a letter to the Chief Registrar on 13 th February, 2014, asking the court to strike the letter of 26 th November and to reinstate the appeal. The rules of court are clear on the procedure. Furthermore, the information contained in the affidavit, in the Court’s view, was woefully inadequate. There was no affidavit from counsel who indicated her instructions to withdraw and discontinue the appeal so as to place a full picture before this Court. The bald statements to the effect that no instructions were given to withdraw the appeal and that the appeal had not been abandoned by the appellant are totally unsatisfactory and insufficient to sway this Court in the restoration of the appeal. There must be finality to proceedings before the court whether they are civil or criminal in nature. Secondly, justice not only must be seen in respect to the appellant, but must be seen in the wider public interest in respect of proceedings before the court and therefore their prosecution with due diligence is critical to the interest of justice, on either side. In this case, that could not have been said to be the case. The statement by the appellant, who had not even appeared before the Court personally to hear his application, that his appeal has real chance of success, without setting out why the appellant though that, was a bald statement that told the Court absolutely nothing. Therefore, it could not be said that the Court in doing justice to the situation would take that statement, which told the Court nothing, as suggesting that any injustice would be visited upon the appellant by not restoring this appeal. The appellant has not demonstrated or made out a case for restoration of this appeal either on the affidavit, by explaining the debate, or, indeed by explaining so that the Court would have a picture as to why it should restore the appeal and that were the appeal to be restored, it would more likely than not be successful. Case Name: Luke Rover Joseph v The Queen [ANUHCRAP2013/0001] Date: Monday, 9 th March 2015 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: Mr. Sherfield Bowen Respondent: Mr. Anthony Armstrong, Director of Public Prosecutions with him Ms. Shannon Jones-Gittens Issues: Criminal appeal against sentence – Possession of cocaine & possession with intent to supply Result / Order / Reason: [Oral delivery] The hearing of this appeal by consent is adjourned to the next sitting of the court in the state of Antigua and Barbuda commencing 13 th July 2015. The respondent shall file and serve submissions together with authorities relied on by 30 th April 2015. Case Name: Alwyn James Jr. v The Queen [ANUHCRAP2009/0005] Date: Monday, 9 th March 2015 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: Mr. Ralph Francis Respondent: Mr. Anthony Armstrong, Director of Public Prosecutions with him Ms. Shannon Jones-Gittens Issues: Criminal appeal against conviction – Murder – Case management Result / Order: [Oral delivery] Matter is stood down until Tuesday, 10 th March 2015. Case Name: Alwyn James Jr. v The Queen [ANUHCRAP2009/0005] Date: Tuesday, 10 th March 2015 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: Mr. Ralph Francis Respondent: Mr. Anthony Armstrong, Director of Public Prosecutions with him Ms. Shannon Jones-Gittens Issues: Criminal appeal against conviction – Murder – Case management Result / Order: [Oral delivery] The hearing of this matter is adjourned to the next sitting of the Court of Appeal sitting in Antigua and Barbuda during the week of the 13 th July 2015 and this shall be the final adjournment. Counsel for the appellant shall file and serve written submissions by Tuesday, 14 th April 2015. The respondent shall file and serve written submissions by Tuesday, 13 th June 2015. Reason: The Court acceded to the request by counsel for the appellant for an adjournment of the hearing of this appeal. The Court stated however that this adjournment shall be the final adjournment of this appeal having regard to the prior adjournments already granted to the appellant as from 2013. Case Name: Ashworth Bunche v The Queen [ANUHCRAP2011/0001] Date: Tuesday, 10 th March 2015 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: Mr. Jason Martin Respondent: Mr. Anthony Armstrong, Director of Public Prosecutions with him Ms. Shannon Jones-Gittens Issues: Criminal appeal against conviction – Murder Result / Order / Reason: [Oral delivery] The application filed on 24 th February, 2015 to adduce fresh evidence and the hearing of this appeal are adjourned, at the request of counsel for the appellant, due to late filing of submissions, to the next sitting of the Court of Appeal in Antigua and Barbuda commencing Monday, 13 th July 2015. The respondent to file and serve written submissions by 5 th June 2015 in response to the written submissions of the appellant filed on the 24 th February 2015. Case Name: Jamal Josiah v The Queen [ANUHCRAP2014/0003] Date: Tuesday, 10 th March 2015 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: Mr. John Fuller Respondent: Mr. Anthony Armstrong, Director of Public Prosecutions with him Ms. Shannon Jones-Gittens Issues: Criminal appeal against conviction – Detention of a person Result / Order / Reason: [Oral delivery] Leave granted to withdraw appeal and appeal is accordingly dismissed. Counsel for the Appellant shall file with the Registrar the relevant notice of abandonment of the appeal pursuant to the Court of Appeal Rules, by Friday, 13 th March 2015. Case Name: Jason Allijohn v The Queen [ANUHCRAP2014/0011] Date: Tuesday, 10 th March 2015 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: Mr. Sherfield Bowen Respondent: Mr. Anthony Armstrong, Director of Public Prosecutions with him Ms. Shannon Jones-Gittens Issues: Criminal appeal against sentence – Attempted rape Result / Order: [Oral delivery] The sentence of seven (7) years is varied and substituted with a sentence of time served. Reason: The Court was of the opinion that it did not appear that any regard was paid to certain circumstances in mitigation, for example, there was no previous conviction, the appellant pled guilty at the first opportunity and the circumstances under which the offence occurred. Further, the trial judge did not give credit for time spent on remand. The appropriate sentence that ought to have been imposed on the appellant was a sentence of approximately 5 years. Bearing in mind all the circumstances of the matter and taking into account that the appellant has spent three calendar years in custody, together with the sentence he is already serving, the Court was of the view that the appeal against the sentence should be allowed. A sentence of 7 years was harsh in the circumstances of this case. Case Name: Austin King v The Queen [ANUHCRAP2008/0028] Date: Tuesday, 10 th March 2015 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: Mr. John Fuller Respondent: Mr. Anthony Armstrong, Director of Public Prosecutions with him Ms. Shannon Jones-Gittens Issues: Criminal appeal against sentence – Buggery Result / Order: [Oral delivery] The appeal against conviction is withdrawn and accordingly is dismissed. The appeal against sentence is allowed to the extent that the sentence is varied from the term of eighteen (18) years to the term of fifteen (15) years to run from the date of the conviction. Reason: The judge did not indicate what his starting point would be, having weighed the mitigating factors and the aggravating factors. The aggravating factors far outweighed the mitigating factors, having regard to the nature of the offence, the age of the child, and the relationship between the child and the appellant. Having regard to the maximum sentence, life in prison, 12 years would be the notional starting point. If there is remand time, the statute will address that. Case Name: Esmond James v Mark Anthony t/a M.D.A. Trucking & Equipment Services [ANUHCVAP2013/0012] Date: Wednesday, 11 th March 2015 Coram: The Hon. Dame Janice M. Pereira, Chief Justice The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: Ms. Kema Benjamin Respondent: Mr. Peyton Knight Issue: Whether the master erred in finding that the respondent satisfied the court that exceptional circumstances existed to warrant setting aside the default judgment Result / Order: [Oral delivery] The appeal is dismissed. Costs to the respondent agreed in the sum of $1,500.00 to be paid within thirty (30) days of the order. Reason: The Court found that the appellant has failed to demonstrate that the learned master erred in the exercise of his discretion given under the rule 13.3 of the Civil Procedure Rules 2000 in relation to the application to set aside a default judgment regularly obtained. It is trite law stated in several cases, the most common of which, is the case of Dufour and Others v Helenair Corporation Ltd and Others ((1996) 52 WIR 188) that an appeal will not be allowed in relation to the exercise of a judicial discretion unless the appellate court is satisfied (1) that in the exercise of the discretion the judge erred in principle either by failing to take into account or giving too little or too much weight to relevant factors and considerations, or by taking into account or being influenced by irrelevant factors and considerations; and (2) that, as a result of the error or the degree of error, in principle the judge’s decision exceeded the generous ambit within which reasonable disagreement is possible and, accordingly, the decision may be said to be clearly or blatantly wrong. It was not shown that the learned trial judge exercised his discretion wrongly. Case Name: Geary Andrew Joseph v Zephepha Rose Mae Joseph [ANUCVAP2013/0003] Date: Wednesday, 11 th March 2015 Coram: The Hon. Dame Janice M. Pereira, Chief Justice The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: Dr. David Dorsett Respondent: No appearance Issues: Civil appeal – Whether learned judge erred in finding that the application for an order to set aside an order was an appeal and not an application Result / Order / Reason: [Oral delivery] The matter is removed from the list to be relisted by the appellant upon proof of service of the notice of appeal and other documents filed on the respondent. Case Name: Daven Joseph v Leona Francis [ANUHCVAP2013/0004] Date: Wednesday, 11 th March 2015 Coram: The Hon. Dame Janice M. Pereira, Chief Justice The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: Mr. Hugh Marshall with him Ms. Kema Benjamin Respondent: Ms. Kathleen Bennett with her Mr. George Lake Issue: Whether the learned judged erred in finding that there was a commission sales agreement between the appellant and the respondent Result / Order: [Oral delivery] The appeal is dismissed. The judgment sum of $18,250.00 is substituted for the sum of $19,250.00. By consent each party to bear its own costs. Reason: This was an appeal essentially seeking the reversal of the trial judge’s finding of facts as to whether an oral agreement was reached between the appellant and the respondent as to the commission to be paid to the respondent on the sale of real property owned by the appellant. The learned trial judge, based on the evidence which she accepted which was primarily based on the evidence of the respondent, found that she was not impressed by either the appellant or by his witness, Mr. Leary Joseph. An agreement had been reached between the appellant and the respondent for payment of a commission fixed at 5% on the basis that the price the appellant was content to receive was $365,000.00 and that any commission the respondent wished to receive was to be added to that sum. It was on this basis that the learned trial judge accepted the evidence of the respondent in concluding that the sale price for which the property was eventually sold was $385,000.00 which price included the commission to be paid to the respondent. The principles by which the Court of Appeal will disturb a trial judge’s finding of fact are well established and can be found in a plethora of cases and were recently restated in a Privy Council decision, Beacon Insurance Company Limited v Maharaj Bookstore Limited ([2014] UKPC 21). The Court adopted the statements made in that decision The Court could not find a reason to disturb the finding of facts of the lower tribunal. It was of the view that her conclusion on the facts could not be faulted. The Court held that the provisions of the Fraud and Perjury Prevention Act (Cap. 183) of Antigua and Barbuda do not apply. It was an agreement to pay commission, not one for the sale of land or any interest in land. However, there was an error in the computation of the commission. Case Name: Dr. Jose Humphreys v The Medical Council [ANUHCVAP2015/002A] Date: Wednesday, 11 th March 2015 Coram: The Hon. Dame Janice M. Pereira, Chief Justice The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: Sir Gerald Watt, QC with him Dr. David Dorsett Respondent: Ms. Carla Brooks-Harris with him Ms. Rose-Ann Kim Issue: Civil appeal against an interim order refusing to allow the applicant to practice while awaiting a decision from the medical counsel Result / Order: [Oral delivery] Appeal allowed. The Medical Council is ordered to grant the appellant a licence to practice medicine pending the determination of the claim. Costs in the cause. Reason: This was an appeal against the order of a learned trial judge in which the learned trial refused an application for interim relief. The sole issue raised on the appeal was whether the learned trial judge erred in the exercise of his discretion. The principles which an appellate court will consider in deciding whether a learned trial judge erred in the exercise of his discretion are well established and have been laid out in the case of Dufour and Others v Helenair Corporation Ltd and Others ((1996) 52 WIR 188). The learned judge in the exercise of his discretion based his finding on facts which the Court considered to be irrelevant. There was no evidential basis on which the judge could have arrived at the decision at which he arrived. He erred in finding that a risk was posed to the health of the public by allowing the appellant to continue to practice and that this risk outweighed the inconvenience to the appellant by his inability to earn a living by being unable to practice medicine. There was no evidence that the appellant was an unqualified person. The risk of injustice was greater to the appellant than to the respondent if interim relief was not granted and the appellant was not able to practice medicine. Case Name: [1] The Proprietors, Condominium Plan No. 2/1989 [2] John Firth [3] Tom Kepler [4] John Greaves [5] Sal Rosa v [1] Trinity Investments Company Limited consolidated with Trinity Investment Company Limited [2] Orest Bedrij [3] Oksana Bedrij [4] Chrystyhna Bedrij [5] Rokssana Bedrij [ANUHCVAP2008/0009]1 Date: Thursday, 12 th March 2015 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: Mr. Dane Hamilton, Sr., QC with him Mr. Dane Hamilton, Jr. Respondent: Mr. Kendrickson Kentish with him Ms. Kathleen Bennett Issue: Civil appeal Result / Order: Judgment reserved. Case Name: Derrick Browne v Vernon Joseph [ANUHCVAP2015/0004] Date: Thursday, 12 th March 2015 Coram: The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: Mr. Lenworth Johnson with him Ms. Latoya Letlow Respondent: Mr. Lawrence Daniel Issues: Civil appeal – Trespassing Result / Order: [Oral delivery] The ruling of the learned judge is set aside and the entire matter is remitted to the High Court to be case managed by another judge in accordance with the Civil Procedure Rules. Costs to the appellant in the sum of $1,000.00. Reason: The Court allowed the appeal and concluded that the learned trial judge erred in seeking to resolve the issues as to whether or not the defendant was trespassing on the claimant’s property together with the issue of whether or not the defendant had obtained the claimant’s property by way of prescription. Further, whether the claimant’s case was time barred in circumstances where there were serious disputes as to the facts without allowing either party to provide any evidence in support of the averments of the pleadings. Case Name: Brown’s Bay Resort Limited v Luca Pozzoni Limited [ANUHCVAP2010/0033] Date: Wednesday, 11 th March 2015 Coram: The Hon. Dame Janice M. Pereira, DBE, Chief Justice The Hon. Mde. Louise E. Blenman, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal Appearances: Appellant: Dr. David Dorsett Respondent: Mr. Lenworth Johnson Issue: Application for final leave to appeal to Her Majesty in Council Result / Order: [Oral delivery] Final leave to the Privy Council is granted. Reason: The appellant satisfied the requirements for final leave to appeal to the Privy Council.