Anthony Hendricks v Commissioner of Customs
| Jurisdiction | Jamaica |
| Judge | Morrison JA,Brooks JA,Sinclair-Haynes JA |
| Judgment Date | 28 May 2018 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | RESIDENT MAGISTRATE'S CIVIL APPEAL NO 24/2014 |
| Date | 28 May 2018 |
IN THE COURT OF APPEAL
THE HON Mr Justice Morrison JA
THE HON Mr Justice Brooks JA
THE HON Mrs Justice Sinclair-Haynes JA
RESIDENT MAGISTRATE'S CIVIL APPEAL NO 24/2014
RESIDENT MAGISTRATE'S MISCELLANEOUS APPEAL NO 1/2015
In the matter of an appeal by way of case stated and In the matter of an application by Pilmar Powell pursuant to section 79 of the Proceeds of Crime Act For forfeiture of seized cash from Patrick Anthony Spence, with interested parties Kurbitron Limited and Frederick Graham
Norman Godfrey instructed by Brown, Godfrey & Morgan for the appellant
Ms Lisa White for the respondent
Ms Alethia Whyte and James Glanville for Pilmar Powell, Mrs Denise Senior-Smith, Ms Vanessa Taylor and Ms Olivia Derrett instructed by Oswest Senior-Smith & Co for Kurbitron Limited and Frederick Graham
Civil practice and practice - Forfeiture of cash under the Proceeds of Crime Act — Whether application to Resident Magistrate's Court for forfeiture of cash could be properly made by way of notice of application for court orders, supported by affidavit
I have read in draft the judgment of my sister Sinclair-Haynes JA. I agree with her reasoning and conclusion and have nothing to add.
I too have read the draft judgment of Sinclair-Haynes JA and agree with her reasoning and conclusion.
The foremost issue in both these appeals is whether an application to the Resident Magistrate's Courts (now Parish Courts) for forfeiture of cash pursuant to section 79 of the Proceeds of Crime Act ( POCA) can properly be made by way of a notice of application for court orders, supported by an affidavit.
In the case of Mr Anthony Hendricks, an application made by the Commissioner of Customs by that means was granted by Her Honour Miss Jennes Anderson, a Resident Magistrate (now referred to as a Parish Court Judge) for the Corporate Area. An application by Mr Hendricks for the release of the forfeited cash pursuant to section 78 of POCA was dismissed. This is therefore Mr Hendricks' appeal from those decisions. In addition to the issue I have referred to at paragraph [3] above as “the foremost issue”, Mr Hendricks also takes two other points on appeal. However, given that a decision on the first issue may be dispositive of the appeal, I will make no further reference to the others for the time being.
In the case of Pilmar Powell, an application made by the same means by Ms Powell, a Detective Sergeant of Police assigned to the Transnational Crime and Narcotics Division, for forfeiture of cash pursuant to section 79 of POCA, was dismissed by His Honour Mr Dale Staple, a Resident Magistrate for the parish of Manchester. An application by the defendants, Kurbitron Limited and Frederick Malcolm Graham (Kurbitron Ltd), for the release of seized cash pursuant to section 78 of POCA, was also dismissed. The learned Resident Magistrate held that neither the relevant statutory provisions nor the rules permitted the making of such applications by way of notice of application for court orders supported by affidavit and that the proceedings before him were accordingly a nullity.
The latter case now comes before this court by way of (i) case stated by the learned Resident Magistrate, to determine, among other things, what is the correct procedure for the commencement of proceedings under POCA; and (ii) appeal by the Assets Recovery Agency on behalf of Pilmar Powell, for an order that, among other things, the order of the Resident Magistrate be set aside.
The legal context in which the issue arises is as follows. First, sections 78 and 79 of POCA respectively authorise a Resident Magistrate to release detained cash and forfeit detained cash on an “application” made to that court under the relevant section.
Second, section 143 of the Judicature (Resident Magistrates) Act (RM Act) provides that:
“All actions and suits in a Court which, if brought in the Supreme Court, would be commenced by writ of summons, shall be commenced by the party desirous of bringing such action, or some person on his behalf, lodging with the Clerk or Deputy Clerk or any Assistant Clerk, at the office of the Clerk of Courts or at any Court held within the parish, a plaint, stating briefly the names and last known places of abode of the parties and naming a post office to which notices may be addressed to the plaintiff……and accompanied by particulars of claim if any, and stating the plaintiff's place of abode and address for service, and bearing the number of the plaint on the margin thereof,…”
Third, Order XXXVI Rule 19 of the Resident Magistrate's Court Rules (RMC Rules) states as follows:
“Where by any Law not before-mentioned in these Rules, proceedings are directed to be taken, in a Resident Magistrate's Court, such proceedings shall commence by action wherever there is a person against whom it can be brought, and if there is no such person, then the proceeding shall be commenced by petition.”
The question is therefore whether the matters, not having been brought by the filing of a plaint or a petition, fall to be treated as nullities.
Both matters were heard on 18 March 2016. We apologise for the delay in delivering our decision. The delay was entirely beyond our control.
Mr Anthony Hendricks' complaint at ground three, the questions posed by the learned Resident Magistrate and Ms Powell's three complaints in respect of the case stated in her matter, contain essentially two issues: whether the matter was properly commenced and, if not, whether it is a nullity. An answer in the affirmative will render further consideration of Mr Hendricks' case otiose. In the circumstances ground three, the case stated and Ms Powell's complaints will be considered jointly. Ms Powell, for convenience, will be referred to along with the Commissioner of Customs as “the respondents”.
Ground three reads as follows:
“The proceedings are a nullity as it [sic] was not brought in conformity with the Judicature (Resident Magistrates) Act or the Resident Magistrates Court Rules. It was not commenced by Action or Petition.”
The learned Resident Magistrate's ruling on the applications made by Ms Powell and Kurbitron Ltd respectively was as follows:
“a. The Application for Forfeiture and the Application for Release are dismissed as neither matter commenced by plaint supported by particulars of claim and ought not to have commenced by way of notice supported by affidavit;
b. Neither application can be remedied pursuant to section 190 of the Judicature (Resident Magistrate's) Act or Order XXXVI Rule 23 of the Resident Magistrate's Court Rules as there is nothing before the court.”
In the case stated, the learned Resident Magistrate sought this court's guidance on the following questions:
“a. What is the correct procedure for the commencement of proceedings for either Forfeiture or Release of Seized Cas under the Proceeds of Crime Act in the absence of Procedural Rules?
b. Was the correct procedure followed in the instant case?
c. If the correct procedure was not followed, what is the ultimate effect?
d. If there is a defect in the commencement procedure, can the procedure be cured?”
“The learned magistrate erred when he determined that the failure to comply with section 143 of the Judicature (Resident Magistrate's) Act was not merely a matter of form but of substance.”
“The learned Resident Magistrate erred when he determined that because the proceedings were not commenced in accordance with section 143 of the Judicature (Resident Magistrate's) Act, the proceedings did not exist and he was therefore precluded from exercising his jurisdiction to cure the defect in the proceedings pursuant to section 190 of the Judicature (Resident Magistrate's) Act or Order XXXVI Rule 23 of the Judicature (Resident Magistrate's) Rules.”
“The learned Resident Magistrate erred when he determined that the notice and affidavit could be treated as the lodging of a plaint.”
Placing reliance on Metalee Thomas v The Assets Recovery Agency [2010] JMCA Civ 6, counsel for both Mr Hendricks and Kurbitron Ltd submitted that in the absence of regulations or court rules for proceedings brought in the Resident Magistrate's Courts, the commencement of proceedings in the Resident Magistrate's Courts must be governed by the RM Act and the RMC Rules. They pointed the court's attention to section 143 of the RM Act and submitted that the matter ought to have commenced by way of plaint. They posited that the Resident Magistrate's Court is a creature of statute and its proceedings are to be governed by the RM Act and the RMC Rules. The commencement of the matter by application was a process which is alien to the Resident Magistrate's Court. The defect is not merely one of form. It is therefore fatal to the proceedings thereby rendering the proceedings void ab initio and a nullity.
Counsel Mr Godfrey, for Mr Hendricks, postulated that the proceedings are void ab initio having commenced by way of notice of application which is alien to the RM Act and the RMC Rules. He relied on:
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a. The interpretation provisions of the RM Act which states that “Actions shall mean every proceeding commenced by plaint”;
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b. Section 143 of the RM Act which stipulates how an action in the Resident Magistrate's Court ought to commence; and
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c. Order XXXVI rule 19 (quoted above at paragraph [9]).
Counsel referred to Order XI Rule 7, Order XIII Rule 8 and Order XIV Rules 1, 2, 3 and 4. These rules, he submitted, are concerned with interlocutory applications and do not provide for the commencement of proceedings....
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