Abraham Zion v 1) Graham Ferguson Lacey 2) Sea Shell Reefs Ltd

• Jurisdiction: Antigua and Barbuda
• Court: Court of Appeal (Antigua and Barbuda)
• Judge: Denys Barrow, SC
• Judgment Date: 19 February 2008
• Judgment citation (vLex): [2008] ECSC J0219-1
• Docket Number: HCVAP2007/0029
• Date: 19 February 2008

[2008] ECSC J0219-1

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Denys Barrow, SC

HCVAP2007/0029

Abraham Zion

Respondent /Appellant

and

[1] Graham Ferguson Lacey

[2] Sea Shell Reefs Limited

Applicant/Respondents

Appearances:

On Paper

Thomas John & Co. for the Applicant, Respondent No. 1

Hill & Hill for the Respondent/Appellant

DECISION

1 The first respondent, the applicant, applies to strike out a Notice of Appeal filed by the appellant on 31^st December, 2007 against an order of David Harris J dated 21^st November, 2007 (the order). The order followed the trial of the claim on 21^st October, 2006 by Thomas J. and judgment delivered on 6^th February, 2007 ordering specific performance of a certain agreement for the sale of shares. An appeal against the judgment of Thomas J was subsequently struck out.

2 On 13^th March, 2007 the applicant filed an application to enforce the judgment. On the hearing of this application Harris J made the order which provided, among other things, that a Purchase Money Mortgage (the PMM) be approved by the court. Essentially, it is against the approval of the PMM that the appellant has appealed although there are other substantive grounds of appeal against the order.

3 The application to strike out the Notice of Appeal claims that (1) the appeal is an abuse of process, (2) it was filed out of time and contrary to part 62.5, (3) it is a nullity and (4) the appellant should comply with the terms of the order. Both sides filed very helpful submissions with authorities after filing affidavits and exhibits in support of their respective positions. It is practical to deal firstly with claims ( 2) and (3) of the application to strike out and to treat them together.

4 The common basis of these two claims is that the appeal is against an interlocutory order. The applicant contends this is a procedural appeal and the appeal should have been filed within 7 days of the date the decision appealed against was made; see rule 62.5(a). More fundamentally, the applicant contends the appeal being against an interlocutory order could only have been brought if leave was first granted and since no leave to appeal was granted the appeal is a nullity. Both sides accept that this proposition was established by a single-judge decision of this court inOliver Mcdonna v. Benjamin Wilson Richardson1.

5 Counsel for the appellant argued that the order was a final order, using the application test, because if Harris J had approved or refused to approve the PMM that decision would have brought the litigation to an end. With respect, that is a wrong view. First of all, the definition of "interlocutory in Jowitt's Dictionary of English...