PORT OF SPAIN, Trinidad, CMC – The Caribbean Court of Justice (CCJ) Tuesday dismissed an appeal by a former Belize government minister in a land dispute in which he had lodged several cautions against lands owned by a company preventing it from conducting any business about the lands.
Wilfred Elrington, a Senior Counsel and former foreign affairs minister, had filed an appeal against the Court of Appeal ruling in the land dispute between himself and the company Progresso Heights Limited (PHL).
Elrington held 20 percent of the shares in PHL, with the remaining shares belonging to the father and son Lawrence and Adam Schneider.
PHL had commenced claims in the Supreme Court against Elrington and the Registrar of Lands seeking removal of the cautions. The claims were heard together, and the trial judge found that the cautions were unlawfully lodged by Elrington and unlawfully accepted by the Registrar of Lands.
The trial judge ordered that the cautions be removed and that the Registrar of Lands accept no further cautions without the Court’s permission.
But Elrington appealed the trial judge’s decision, and the Court of Appeal noted that only one of the grounds of appeal challenged the trial judge’s primary findings.
The other grounds of appeal concerned whether PHL brought the proceedings adequately with the requisite authority. The Court of Appeal held that Elrington had not raised in his pleadings before the trial judge the issue of the legitimacy of the proceedings commenced by PHL. The Court held that it could not consider that issue, and the appeal was dismissed.
In his appeal to the CJJ, Belize’s highest and final court, Elrington filed several grounds of appeal against the trial judge’s decision.
He sought to argue again that the trial judge was wrong to find that Lawrence Schneider had both actual and apparent authority as director and agent of PHL to sell PHL’s lands and testify on PHL’s behalf.
He also argued that PHL was not properly a party to these proceedings.
On the date of the hearing of the appeal at the CCJ, Elrington applied to amend his notice of appeal to substitute “trial judge” or “High Court” with “Court of Appeal.”
In its ruling, authored by Justice Maureen Rajnauth-Lee, the CCJ identified two issues: First, permission to amend Elrington’s notice of appeal should be granted. The CCJ ruled that examining its rules’ scope and objectives, it was okay to grant the application.
The CCJ stated that to wait until the day of the hearing of the appeal to request to amend the notice of appeal was unacceptable and unfair to PHL, particularly in the absence of any convincing grounds or reasons, and that late applications to amend a notice of appeal, or any other late application, mainly made on the day of the hearing, were to be seriously discouraged.
The second issue was whether the Court of Appeal was correct to hold that Elrington could not succeed on his appeal due to his failure to plead that PHL had commenced these proceedings without the requisite authority.
The CCJ believed there was no reason to interfere with the decision of the Court of Appeal. It found that Elrington never raised this issue in his defense filed in the High Court. The CCJ also observed that even during the hearing before the trial judge, Elrington did not seek to amend his defense despite the strong objections of PHL’s counsel during the cross-examination of Lawrence Schneider.
In a concurring opinion by Justice Winston Anderson, the CCJ noted that although the appeal was filed as of right, it could be struck out if it was an abuse of process or if the issues pleaded were not properly before the Court.
Justice Anderson noted that abuse of process was a very high bar that required lousy faith, and he was not prepared to consider that this appeal had reached that bar.
Emphasizing the importance of pleadings as providing the guardrails of litigation, Justice Anderson found that the application to amend the pleadings was not simply to amend clerical errors but went to the structure and substance of the case and had taken PHL by surprise.
He found that six of the nine issues on appeal to the CCJ could not be raised as they had not been adequately pleaded in the High Court. The simple solution would have been for Elrington to have applied to amend the pleadings appropriately before the trial judge. This he had failed to do.
In addition, Justice Anderson reiterated that there was no right of appeal against interlocutory decisions, even in civil cases. This appeal could not be sustained as the remaining three issues were, essentially, an appeal from certain interlocutory proceedings before the trial judge for which leave had yet to be sought or granted. Accordingly, the appeal to the CCJ needed to be properly before the Court.
The CCJ dismissed the appeal and ordered that Elrington pay PHL the costs of the appeal as agreed to by the parties.
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