Inderjit Kaur Chhina v Muhammad Nazir Muhammad Ismail

• Jurisdiction: British Virgin Islands
• Judge: Webster JA
• Judgment Date: 23 March 2023
• Judgment citation (vLex): [2023] ECSC J0323-1
• Docket Number: BVIHCMAP2020/0024
• Court: Court of Appeal (British Virgin Islands)

Between:

Inderjit Kaur Chhina

Appellant/Applicant

and

[1] Muhammad Nazir Muhammad Ismail

[2] Mohammed Nazim

Respondents

Before:

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mde. Margaret Price-Findlay Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

BVIHCMAP2020/0024

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Application for leave to appeal to His Majesty in Council — Sections 3(1) and 3(2) of Virgin Islands (Appeals to the Privy Council) Order 1967 — Application test — Whether the decision being appealed is a final or interlocutory order — Whether the question involved in the proposed appeal is a matter of great general or public importance, or otherwise, that should be submitted to His Majesty in Council

Inderjit Kaumar Chhina (“the Applicant”) filed an action in the Commercial Court claiming ownership of the shares of a Territory of the Virgin Islands (“BVI”) company that owned property in London, England. The claim was dismissed and on 12 ^th November 2020 the Applicant appealed against the decision of the Commercial Court. The Applicant did not take any further steps in pursuing the appeal and on 18 ^th March 2022 the respondents applied to strike out the appeal for want of prosecution. The Applicant's response was to apply for an extension of time to file the record of appeal. Both applications came up for hearing by the Court of Appeal on 10 ^th May 2022. On 22 ^nd July 2022, the Court delivered its written judgment making the orders dismissing the Applicant's application for an extension of time to file and serve the record of appeal and striking out the notice of appeal for want of prosecution, with costs to the respondents.

Being dissatisfied with the decision of the Court of Appeal, the Applicant applied for conditional leave to appeal to the Privy Council under the provisions of sections 3(1) and 3(2) of the Virgin Islands (Appeals to the Privy Council) Order 1967 (“the 1967 Order”). The issues to be considered on the application are: (i) whether the decision being appealed is a final or interlocutory order; and (ii) whether the question involved in the proposed appeal is a matter of great general or public importance, or otherwise, that should be submitted to His Majesty in Council.

Held: dismissing the application for conditional leave to appeal to the Privy Council, that:

• 1. To succeed under section 3(1) the 1967 Order the applicant must prove that the intended appeal to the His Majesty in Council is an appeal from a final decision of the Court of Appeal. It is settled law in the Eastern Caribbean that the test to be applied in determining whether an order is final or interlocutory is a procedural matter to be decided by the local courts, and the application test is to be used in making that determination. Under the application test, an order is interlocutory if the claim, or the subject matter of the application, will come to an end if the application is determined one way, but will continue if it is determined the other way. Applying the same test, an order is final if it was made on an application that would have determined the matter in litigation for whichever side the decision is made.

  Rule 62.1(3) of the Civil Procedure Rules 2000 applied; Othniel Sylvester v Satrohan Singh Saint Vincent & the Grenadines Civil Appeal No. 10 of 1992 (delivered 18th September 1995, unreported) followed; Nam Tai Electronics, Inc v David Hague et al Territory of the Virgin Islands Civil Appeal No 12 of 2003 (delivered 21st September 2004, unreported) followed; Thamboo Ratnam v Thamboo Cumarasamy and another [1965] 1 WLR 8 distinguished; R. S. Lopes v N.K.V Valliappa Chettiar [1968] AC 887 distinguished; Haron bin Mohd Zaid v Central Securities (Holdings) Bhd [1982] 2 All ER 481 considered; Durity v The Judicial and Legal Services Commission and another [1996] 2 LRC 451 considered; Pentium (BVI) Limited et al v The Bank of Bermuda Territory of the Virgin Islands Civil Appeal No. 14 of 2003 (delivered 12th January 2005, unreported) followed; Lux Locations Limited v Yida Zhang (Antigua and Barbuda) [2023] UKPC 3 considered.

• 2. The decision whether to apply the application test or the order test is a procedural issue and the courts of the Eastern Caribbean are not bound to follow the decisions of the Privy Council that apply the order test. The order of the Court of Appeal striking out the notice of appeal was an interlocutory order and leave to appeal to the Privy Council is required.

  Section 3(1) of the Virgin Islands (Appeals to the Privy Council) Order 1967 S.I. No. 234 of 1967 applied.

• 3. The reasons advanced by the Applicant for saying that her intended appeal to the Privy Council under section 3(2) of the Privy Council Order involves matters of great general and public importance do not qualify as matters of great general and public importance. Neither are there any points of law that could benefit from guidance by the Board. The Applicant's complaints are issues in a private dispute between the parties, the resolution of which has no impact on other persons. They are not matters of public importance. The application for leave to appeal under section 3(2) also fails

  Section 3(2)(a) of the Virgin Islands (Appeals to the Privy Council) Order 1967 S.I. No. 234 of 1967 applied; Martinus Francois v The Attorney General Saint Lucia Civil Appeal No. 37 of 2003 (delivered 7th June 2004, unreported) followed.

Appearances

Mr. Adrian Davies for the Applicant/Appellant

No appearance by the Respondents

1 Webster JA [ AG: This is an application by Inderjit Kaumar Chhina (“the Applicant”) for conditional leave to appeal to His Majesty in Council against the decision of the Court of Appeal delivered on 22 ^nd July 2022, dismissing her application for an extension of time to file and serve the record of appeal and striking out the notice of appeal for want of prosecution, with costs to the respondents.

2 The relevant background to this application is that the Applicant filed an action in the Commercial Court claiming ownership of the shares of a Territory of the Virgin Islands (“BVI”) company that owned property in London, England. The claim was dismissed and on 12 ^th November 2020 the Applicant appealed against the decision of the Commercial Court. The Applicant did not take any further steps in pursuing the appeal and on 18 ^th March 2022 the respondents applied to strike out the appeal for want of prosecution. The Applicant's response was to apply on 25 ^th April 2022 for an extension of time to file the record of appeal. Both applications came up for hearing by the Court of Appeal on 10 ^th May 2022. On 22 ^nd July 2022 the Court delivered its written judgment making the orders referred to in the preceding paragraph.

3 The Applicant applied for conditional leave to appeal to the Privy Council against the orders of the Court of Appeal. The application was made under the provisions of section 3 of the Virgin Islands (Appeals to the Privy Council) Order 1967 1 (“the 1967 Order”). The relevant parts of section 3 are —

Sub-section 3(1):

“(1) Subject to provisions of this Order, an appeal shall lie as of right from decisions of the Court to [His] Majesty in Council in the following cases –

(a) Where the matter in dispute on the appeal to [His] Majesty in Council is of the value of £300 sterling or upwards or where the appeal involves directly or indirectly a claim to or question respecting property or a right of the value of £300 sterling or upwards, final decisions in any civil proceedings; …”

Sub-section 3(2):

“(2) Subject to the provisions of this Order, an appeal shall lie from decisions of the Court to [His] Majesty in Council with the leave of the Court in the following cases—

(a) where in the opinion of the Court the question involved in the appeal is one that, by reason of its great general or public importance or otherwise, ought to be submitted to [His] Majesty in Council, decisions in any civil proceedings; …”

4 The application in this case was made under sub-sections (1) and (2).

The application under sub-section 3(1)

5 The Applicant posited that her application falls under sub-section 3(1) because she is seeking leave to appeal against a final decision in a civil proceeding and the subject matter of the dispute exceeds the threshold of £300. It is common ground that the value of the dispute far exceeds the £300 threshold. The issue is whether the decision being appealed is a final or interlocutory order. If it is a final order the intended appeal to the Privy Council is as of right and, subject to complying with the requirements of sub-section 3(1), the Court of Appeal is obliged to grant conditional leave to appeal. Mr. Adrian Davies says that the order being appealed is final because it had the effect of disposing of the appeal in the Court of Appeal.

6 It is settled law in the Eastern Caribbean that the court applies the application test to determine whether an order is final or interlocutory. This was settled by this Court on 18 ^th September 1995 in Othniel Sylvester v Satrohan Singh. 2 The trial judge had struck out the claimant's claim and he appealed against the striking out without getting leave to appeal. Sir Dennis Byron JA (as he then

was) analysed and compared the application test and the order test and concluded that the application test applied in the Eastern Caribbean. At paragraph [11] of the judgment he summarised the application test –

“Under the application test, an order would be final if it was made on an application which would have determined the matter in litigation for whichever side the decision was given. It is conceded that if the application test was applied the order of Georges J. would be interlocutory, because if he had not set aside the writ and discharged its service, the proceedings would have continued.” 3

The essence of the application test...