Thomas, Yasseen get further reprieve - Full Court sets aside Moore's ruling By Kester Morris Stabroek News December 21, 1999 The Full Court yesterday unanimously set aside a ruling by Justice Winston Moore which had denied condemned murderers Abdool Saleem Yasseen and Noel Thomas a stay of execution, ruling that lawyers for the two men are entitled to pursue their action inspite of the likelihood of failure. As such, a stay of execution was granted until a summons and ex parte application originally brought on September 12 by their lawyers can be heard and determined. The Full Court, comprising Chief Justice Desiree Bernard, Justice Deonarine Biscessar and B.S. Roy ordered that pleadings be filed in the action as expeditiously as possible and promised that a hearing will be accelerated. After the ruling was given, Attorney General Charles Ramson, who represented himself and Director of Prisons Dale Erskine in the constitutional motion brought by Yasseen and Thomas, asked for leave to file an appeal after the ruling. In giving the decision, Chief Justice Bernard ruled that Justice Moore was a bit premature in his ruling when he had refused a writ of summons and an ex parte application brought by way of a constitutional motion on Yasseen and Thomas' behalf by a team of lawyers headed by Stephen Fraser. On October 18, 1999, Justice Moore ruled that the course of pleading followed by a trial would have been frivolous and vexatious and an abuse of the process of the courts. On November 22, Fraser and his team began their appeal against that ruling on the grounds that a court must have pleadings before it before it can determine whether a matter is frivolous and vexatious, an argument with which the Full Court agreed with yesterday. Fraser and his team had also pointed out that there was no application by Ramson to have the writ of summons dismissed as being frivolous and vexatious and, as such, Justice Moore had acted on his own initiative in doing so. For his part, Ramson had pointed to Section 24 and 25 of the High Court Act, which he said gave a Judge of the High Court unlimited jurisdiction and had noted that the issues contained in the pleadings by Fraser were res judicata (had been litigated before). In both instances, he contended, the Judge had been within his right to rule as he did. The Chief Justice and Justice Biscessar, who both gave reasons for their decision, agreed that the main issue in the appeal was whether Justice Moore sitting in chambers in an interlocutory matter as he was, ought to have ruled that no pleadings were necessary as the appellants' claims were bound to fail and were frivolous and vexatious. In disputing this, the Chief Justice referred to Order 17, Rules 31 and 32 of the Rules of Court as well as several cases decided in the late 1800s and the early 1900s. Both Justice Biscessar and the Chief Justice made it clear that, under the English rule, a judge could utilise his inherent and unlimited jurisdiction to strike out any summons or the indorsement of claims on the grounds that they were frivolous and vexatious and that Justice Moore had acted under that power. However, this was a power that the Chief Justice said should only be exercised in special circumstances in keeping with the ruling in Lawrence V Lord Norreys (1890). Secondly, Justice Moore had made his ruling based on the affidavits before him while Chief Justice Bernard quoted a number of cases to show that the action in question could only be struck out if it was obviously frivolous and vexatious. In other words, she argued, if it is necessary for a Judge to consider extrinsic evidence contained in affidavits or otherwise before ruling that the action is frivolous and vexatious, then the Rules of Court would not apply and such an action ought not to be struck out. Further, according to the case of Wallis V Jackson (1883) the indorsement on a writ which was the type of document filed before Justice Moore was not a pleading. In relation to the res judicata contention, Justice Bernard pointed out that Fraser's argument that bias on the part of Ramson, who had sat as a member of the Advisory Council on the Prerogative of Mercy, seemed to be a new issue and as such the indorsement of claim could not, on the face of it be regarded as frivolous and vexatious. Regarding other arguments raised by Fraser, she noted that it was debatable whether the men's fundamental rights to life, liberty and security of the person, the constitutionality of the death sentence and the right to a fair hearing before the Council had already been litigated "and it is not for this Court to decide on these issues." The Chief Justice, whose ruling was affirmed by both Roy and Biscessar, made it clear that she was not advocating that Thomas and Yasseen escape the penalty imposed on them by law. Rather, "their guilt having been established beyond a reasonable doubt, ultimately, they have to pay the price for their misdeeds. As said earlier, their action may likely fail, but until then they are entitled to pursue their claim until their last breath of life...", she ruled in a 20-page judgement. She went on to commend Justice Moore for the industry and scholarship he had displayed in arriving at the conclusions which he had, noting that he might ultimately be proved to be correct in his reasoning but that it was premature at present. The Chief Justice also extended thanks to both Yasseen and Thomas's battery of lawyers and the Attorney General for the work they had put into the case. She also urged younger lawyers to emulate the dedication and perseverance shown by the two sides. A © page from: Guyana: Land of Six Peoples