[1] Attorney General of Grenada [2] Chief Immigration Officer Appellants v [1] Sebastian Isaac [2] Maria Ytterholm Respondents

• Jurisdiction: Grenada
• Judge: Blenman, JA
• Judgment Date: 20 June 2016
• Judgment citation (vLex): [2016] ECSC J0620-1
• Court: Court of Appeal (Grenada)
• Docket Number: GDAHCVAP2015/0028
• Date: 20 June 2016

[2016] ECSC J0620-1

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mr. Mario F. Michel Justice of Appeal

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

GDAHCVAP2015/0028

Between:

[1] The Attorney General of Grenada

[2] Chief Immigration Officer

Appellants

and

[1] Sebastian Isaac

[2] Maria Ytterholm

Respondents

Appearances:

Mr. Thomas Astaphan, QC with Mr. Dwight Horsford, Solicitor General and Ms. Maurissa Johnson, Crown Counsel for the Appellants

Mr. Darshan Ramdhani and Ms. Sabrita Khan Ramdhani for the Respondents

Civil appeal — Interlocutory appeal — Rule 17.4 of the Civil Procedure Rules 2000 — Ex-parte application — Interim injunction — Whether learned judge erred in law in granting interim injunction upon an ex parte application — Whether learned judge erred in law in not ordering that Attorney General be served — Whether learned judge erred in principle in concluding that the requirements of the CPR 17.4 were satisfied — Whether learned judge erred by continuing the injunction without affording Attorney General a hearing of the merits of the application or on the continuation

Ms. Maria Ytterholm ("Ms. Ytterholm") and Mr. Andreas Thomas Kummert ("Mr. Kummert"), both Maltese nationals, are the parents of a minor child over whom a custody battle ensued between them in Malta. However, Ms. Ytterholm left Malta with the child and moved to Grenada where she eventually married a Grenadian national, Mr. Sebastian Isaac ("Mr. Isaac") on 21 ^st July 2015 and applied for citizenship shortly thereafter. Upon knowing of Ms. Ytterholm's whereabouts, Mr. Kummert went to Grenada and is alleged to have have been able to engage the State machinery with a view to having her deported from the jurisdiction. On 25 ^th September 2015, Ms. Ytterholm learnt that Mr. Kummert was on the island. Being fearful that he would attempt to take the child from her, she made an ex parte application on 25 ^th September 2015 and on the same day obtained an order restraining him from leaving Grenada with the child.

Ms. Ytterholm was subsequently informed that she was needed by the police for an interview and voluntarily attended the Criminal Investigation Department for same. After being there for a number of hours, she learnt that the immigration officers were there to arrest her and have her deported on the basis that she was an undesirable alien. Ms. Ytterholm was placed into police custody and a deportation order was made against her on 2 ^nd October 2015.

During this period, Mr. Kummert made an ex parte application to discharge the order that Ms. Ytterholm had obtained which prevented him from leaving Grenada with the minor child. The judge before whom this application was brought instructed that Ms. Ytterholm's attorney be notified and appear before the court. At the hearing of the application, the judge refused to discharge the injunction.

On 3 ^rd October 2015, Mr. Isaac had filed an ex parte application and obtained the interim injunction restraining the Attorney General from deporting Ms. Ytterholm pursuant to the deportation order. The learned trial judge also ordered that Ms. Ytterholm be released forthwith and that notice of the order be given to the Attorney General and the Chief Immigration Officer. Ms. Ytterholm also filed a fixed date claim in which she challenged the constitutionality of the actions of the relevant public officials.

The injunction was made returnable on 6 ^th October 2015 and came on for hearing on that date along with the fixed date claim. At the hearing, the learned judge gave directions on the fixed date claim and made an order continuing the ex-parte order that was granted and restrained the appellants from deporting Ms. Ytterholm until the conclusion of the proceedings.

Both the Attorney General and the Chief Immigration Officer are aggrieved by the orders and on 19 ^th October 2015 filed a notice of appeal against both orders. In relation to the order of 3 ^rd October 2015, the appellants' essential complaint is that the learned judge erred in law in concluding that it was proper to grant the order on an ex parte basis and not ordering that the Attorney General be served and that she erred in principle in concluding that the requirements of the Civil Procedure Rules 2000 ("CPR") rule 17.4 were satisfied. The gravamen of their complaint in relation to the 6 ^th October 2015 order is that the learned judge erred by continuing the injunction without affording the Attorney General a hearing of the merits of the application or on the continuation.

Held: dismissing the appeal; declaring that the deportation order issued on 2 ^nd October 2015 is a nullity; and awarding costs to Mr. Isaac and Ms. Ytterholm, to be assessed, if not agreed within 21 days, that:

• 1. There is no principle of law neither is there any authority for the proposition that if an application is made for an injunctive order against a public official the judge must order that the application should be served on the public official. If such a principle were to exist, its effect would be to improperly fetter the exercise of the discretion of the judge who is seized of the ex parte application. It is for the judge to determine whether or not the application for the interim injunction was one which satisfies the threshold of being one of exceptional urgency and whether the other prerequisites have been met to warrant hearing the application on an ex parte basis.

  National Commercial Bank Limited v Olint Corp. Ltd. [2009] UKPC 16 applied.

• 2. In relation to the appellate court's interference with the exercise of the judge's discretion, the law is very well settled. The appellate court will rarely interfere with the exercise of discretion by the trial judge save and except where it is satisfied that (1) the learned 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 or being influenced by irrelevant factors and considerations and (2) as a result of the error or the degree of the error, in principle the trial judge's decision exceeded the generous ambit within which reasonable disagreement is possible and may therefore be said to be clearly or blatantly wrong. In the present case, the onus falls on the Attorney General and Chief Immigration Officer to prove that the learned judge improperly exercised her discretion in granting the ex parte injunction. Since they been unable to point to any error of principle that has been committed by the judge, there is no basis for this Court to interfere with the judge's exercise of discretion.

  Michel Dufour and Other v Helenair Corporation Ltd (1996) 52 WIR 188, pp. 190–191 applied; American Cyanamid Co. v Ethicon Ltd. [1975] AC 396 applied; Bates v Lord Hailsham of St. Marylebone [1972] 1 WLR 1373 applied.

• 3. It is the law that CPR 26.1 clothes the judge with very wide case management powers. It is entirely open the judge to determine whether the prerequisites of the CPR have been satisfied or the threshold has been met. In so doing, the judge must act judicially. There has been no evidential basis provided for the contention that the learned judge erred in principle by concluding that the requirements of CPR 17.4 were satisfied. The learned judge's exercise of her discretion on this ground is unassailable as the evidence that was provided to her was sufficient to persuade her to exercise her discretion in the manner that she did; the urgency of the matter necessitated a hearing on an expedited basis and she acted judicially in the order she made and the discretions that were given.

  Bates v Lord Hailsham of St. Marylebone 1972] 1 WLR 1373 applied; Rule 26.1 of the Civil Procedure Rules 2000 applied.

• 4. In order to be able to properly prosecute the ground of appeal that the learned judge erred by continuing the injunction without affording the Attorney General a hearing of the merits of the application or on the continuation, the Attorney General and the Chief Immigration Officer ought to have furnished the Court with the transcript of the proceedings. This Court is not in a position to say, even on a balance of probabilities, that the state of affairs as alleged by the Crown is correct. Therefore, in the absence of clear evidence to support contention of the Attorney General and the Chief Immigration Officer's contention, it must be presumed that the order that was issued by the judge was properly issued.

Introduction

Blenman, JA

1 This case exemplifies the situation of a matter that started out as a private law custody battle over a minor child, involving two foreigners, inexplicably mushrooming into a public law matter in which the Attorney General has become involved. Indeed, the genesis of the appeal is a custody battle between Ms. Maria Ytterholm ("Ms. Ytterholm") and Mr. Andreas Thomas Kummert ("Mr. Kummert") who are the mother and father of the minor child, respectively.

2 It appears that there was some dispute between Ms. Ytterholm and Mr. Kummert in Malta in relation to the custody of their child. Ms. Ytterholm came to Grenada with the child and was so residing when Mr. Kummert is alleged to have been able to engage the state machinery with a view to having her removed from the jurisdiction of Grenada. By this time, Ms. Ytterholm was asked to attend the police station for an interview and once there was taken into custody for reasons which are not pertinent to this appeal. She was also charged by the police in Grenada but the charge appeared to have been withdrawn. She was then given over to the immigration authorities. Ms. Ytterholm being fearful that steps would have been taken to have her deported from Grenada filed a without notice application and obtained an injunction restraining the Attorney General and the Chief Immigration Officer from...