Judges' retirement renders Chen-Young judgment null and void
Published:Tuesday | May 1, 2018 | 12:00 AM
An appeal heard by a panel of judges, all of whom retired before delivering their decision in a lawsuit brought against former Eagle financial network executive Dr Paul Chen-Young, has been declared null and void.
As a result, the Court of Appeal has ordered a new hearing.
The appeal related to a May 2006 judgment by Supreme Court Justice Roy Anderson, mostly in favour of Eagle Merchant Bank and Crown Eagle Life Insurance Company - entities that were taken over by the State in the financial rescue programme of the 1990s - and against Dr Chen-Young and other respondents who were sued in November 1998.
The appeal was heard in 2013 and the judgment delivered by another panel of judges on December 1, 2017. Each of the judges who heard the appeal had retired between May 2015 and July 2016 without handing down a decision.
However, last December 14, Chen-Young filed a motion seeking a declaration that the judges having retired before giving a decision on the appeal, the judgment is null and void and of no legal effect.
He also sought orders that a freezing order issued against him by Justice Anderson in May 2006 be discharged, and that provision be made for continuation of payment of his living expenses of US$5,000 per month, as ordered by the trial judge in June 2006.
President of the Court of Appeal Dennis Morrison, in delivering the latest judgment last week, said the retirement of the judges who presided over the appeal, and the subsequent filling of their posts, rendered them incapable to validly hand down a decision.
While the court ruled that the appeal be heard anew, it found no basis for disturbing the freezing order made by Justice Anderson.
"It has given me absolutely no pleasure to have felt obliged to conclude that a judgment prepared by a distinguished former president of this court" - referring to Justice Seymour Panton - "with the concurrence of two former senior judges of appeal, is a nullity," Justice Morrison said.
"There is no question that in preparing it, the judges acted in good faith and, I might add, in accordance with the long-standing practice of the court. But, ultimately, the motion has given rise to a pure question of law, which cannot admit of any considerations relating to the motivation of the judges, the sincerity of their efforts or the circumstances which may have contributed to the judgment not being delivered before their retirement," he added.
He said that where a judge dies, resigns or retires without having rendered judgment in matters heard by him or her prior to demitting office, absent some specific permission allowing him or her to do so, any 'judicial' act subsequently done by him or her will have been done without authority.
Justice Morrison said the only possible basis upon which a judge of appeal can continue to perform as such after he or she has attained retirement age is by virtue of permission given for the purpose by the governor general.
"In this case, as far as the court has been able to ascertain, none was either sought or obtained," he said.
The court ordered that appeal be set down for a rehearing at the earliest convenient time.