Brenton Henry v Her Honour Mrs. D. Gallimore-Rose

JurisdictionJamaica
CourtSupreme Court (Jamaica)
JudgeLawrence-Beswick J,Straw J,D. Fraser J
Date20 December 2016
Docket NumberCLAIM NO. 2013 HCV 05366

[2016] JMFC Full 10

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE FULL COURT

Before:

The Hon. Mrs. Justice C. Lawrence-Beswick

The Hon. Ms. Justice J. Straw

The Hon. Mr. Justice D. Fraser

CLAIM NO. 2013 HCV 05366

Between
Brenton Henry
Claimant
and
Her Honour Mrs. D. Gallimore-Rose
1st Defendant
Attorney General of Jamaica
2nd Defendant

Mr. Hadrian Christie instructed by Mr. Jerome Spencer of Patterson Mair Hamilton for the Claimant

Ms. Lisa White from December 1 st – 3 rd, 2014 and then Mrs. Nicole Foster-Pusey QC, Ms. Carlene LarmondandMs. Carla Thomasinstructed by the Director of State Proceedings for the Defendants

Administrative Law — Constitutional Relief — Judicial Review — Application for Certiorari — Assault and Battery — False Imprisonment — Resident Magistrate's Court Procedure — Committal for Non-payment — Liability of a Resident Magistrate — Jurisdiction of the Resident Magistrate — Natural Justice — Costs — Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act — Maintenance Act — Judicature (Resident Magistrates) Act — Justices of the Peace Jurisdiction Act — Bail Act

IN OPEN COURT
Lawrence-Beswick J
1

I have had the privilege of reading the draft judgment of the Honourable Ms. Justice Straw which has discussed and analysed the several and varied issues in this matter. I agree and need add nothing further.

Straw J
THE PARTIES
2

The claimant, Mr. Brenton Henry, is a British national who fathered a child (‘BH’) with Ms. Paulette Rhamjus on one of his visits to Jamaica. The 1 st defendant, Her Honour, Mrs. Dionne Gallimore-Rose, is a Resident Magistrate for the Family Court for the parish of Saint James. The 2 nd defendant, the Attorney-General of Jamaica is being sued in his capacity as the Director of State Proceedings in respect of the actions of Her Honour Mrs. Gallimore-Rose acting in the course of her duty as the servant or agent of the State.

3

Mr. Henry is seeking judicial review of decisions made against him by the Resident Magistrate, Her Honour Mrs. Gallimore-Rose, (‘the Magistrate’) in proceedings in the said Family Court and for the resulting assault, battery, false imprisonment and breaches of his fundamental rights and freedoms under the Constitution of Jamaica. These are listed in the Fixed Date Claim Form filed on the 21 st of November 2013 and are set out below:

1
    An order for certiorari, quashing the decisions of the 1st Defendant to impose bail conditions on the Claimant on diverse days. 2. An order of certiorari, quashing the order of the 1st Defendant refusing to grant the stay and to remit the application for stay before another Judge of the Family Court; 3. An order of certiorari, quashing the decisions of the 1st Defendant to commit the Claimant to prison on diverse days; 4. Declarations that the 1st Defendant has infringed the Claimant's Fundamental Rights and Freedoms to: (a) liberty (section 13(3)(a)); (b) freedom of movement (section 13(3)(f)); (c) equality before the law (section 13(3)(g)); (d) freedom of the person (section 13(3)(p)); and (e) due process (section 13(3)(r)); 5. Damages for assault, battery and false imprisonment; 6. Constitutional/Vindicatory Damages; 7. Interest on damages 8. Costs; and 9. Such other remedies as this Honourable Court may see fit.
BACKGROUND
4

On the 28 th of June 2007, Ms. Rhamjus commenced proceedings for the maintenance of BH in the Family Court for the parish of Saint James. This was done by way of an information and complaint 1674/2007 issued against Mr. Henry. He appeared before Resident Magistrate, Her Honour Mrs. Feurtado-Toby pursuant to a Warrant of Disobedience of Summons that was issued on the 15 th of April 2009 owing to his failure to appear in the maintenance matter.

5

On the 30 th of June 2009, DNA results confirmed that Mr. Henry was the father of the child BH and on the 9 th of September 2009, he agreed to a maintenance order of $5,375.00 weekly along with half costs for school and medical expenses for the said child. The court documents indicate that a Collecting Officer's order was made in relation to this amount. A second order was also made on the same date for payment by Mr. Henry of $200,000.00 on or before the 12 th of October 2009 for the maintenance of BH from birth to the 4 th of September 2009, as well as payment of USD$185.00 as half DNA test cost on or before the 11 th of September 2009. This latter order was not the subject of a Collecting Officer's order.

6

Mr. Henry's long and tortuous history with the Family Court began thereafter as none of the above payments were honoured. On the 17 th of November 2009, Ms. Rhamjus laid an information and complaint 3349/09 against Mr. Henry for disobedience of maintenance in respect of the order where no Collecting Officer's order was made. Mr. Henry was served with summons issued on the 17 th of November 2009 in relation to the disobedience of maintenance order for $200,000.00 and US$185.00.

7

On the 15 th of December 2009, Mr. Henry failed to appear in court and a Warrant of Disobedience of Summons was issued which was executed on him on the 14 th of June 2010 when he was apprehended and brought before the court.

8

However, between the 17 th of November 2009 and the 14 th of June 2010, the documentary trail as contained in the affidavits of the Magistrate revealed that other actions were taken against Mr. Henry. A Collecting Officer's application for a Warrant of Distress was made on 22/12/09 in respect of the outstanding sum of $80,625.00 for the period 11/9/2009 to18/12/09 where Mr. Henry had failed to pay any maintenance in respect to the order made subject to a Collecting Officer's order. A Warrant of Distress on the Application of the Collecting Officer in respect of these sums due was granted by the Judge of the Family Court on the same day.

9

On the 14 th of June 2010, the Warrant of Distress was taken out for levying but it is noted that there was insufficient distress. On that same day, Her Honour Mrs. Feurtado-Toby made a Forthwith Order against Mr. Henry for the payment of $150,000. 00 or 30 days imprisonment. This order related to the maintenance order made without a Collecting Officer's order. It is noted that if payment was made, Mr. Henry was to be offered bail in the sum of $20,000.00 with surety to return to court on the 12 th of July 2010.

10

On the 15 th of June 2010, a Warrant of Arrest was issued for Mr. Henry in respect of the outstanding sum of $80,625.00 as a result of the failure to levy the amount due to insufficient distress. On the 12 th of July 2010, Mr. Henry failed to appear in Court and on the 20 th of July 2010, a Bench Warrant was issued for his arrest which was executed on him on the 23 rd of November 2010.

11

Apparently Mr. Henry was taken before the court on that warrant on that same day and a Forthwith Order made for the payment of $25,000. 00 or 15 days imprisonment. He was offered bail. On that same day however, there was an application by the Collecting Officer for the outstanding sum of $258,000.00 for the period of 22/01/10 to 19/11/10 in respect of the maintenance order made with a Collecting Officer's order. The corresponding Warrant of Distress on application of the Collecting Officer was issued and signed on that same day.

12

On that day the warrant was endorsed that there was insufficient distress. That day was a busy one for Mr. Henry, as a Warrant of Arrest was issued for him due to the insufficient distress in respect of the amount noted in the above paragraph. This Warrant is endorsed as executed.

13

There were two mention dates of the 7 th and 15 th of December where no payments were made by Mr. Henry. On the 21 st of December he paid $6,000.00 in respect of the first Collecting Officer's order for $80,625.00. On the 6 th of January 2011 he failed to attend court and a Bench Warrant was ordered for his arrest. Between that date and May 2013, this warrant was not executed as Mr. Henry could not be located. However on the 6 th of June, 2013, the said warrant was executed on him and he appeared before, Her Honour Mrs. Gallimore—Rose for the first time.

14

Mr. Henry appeared before the Magistrate on various dates up to the 8 th of July 2013, during which he was committed to prison as several committal orders were made against him. During that time, he was also offered bail to return to court. On the 15 th of October 2013, my brother, Anderson K.J stayed all committal proceedings in the Family Court until the further orders of the Supreme Court.

PRELIMINARY OBSERVATIONS
Is the Magistrate personally liable for torts committed against Mr. Henry?
15

It is to be noted that the claim is not only for judicial review and constitutional relief but also for damages for the torts of assault, battery and false imprisonment. In her submissions, counsel for the respondents, Ms. Carlene Larmond (who replaced counsel, Ms. Lisa White during the course of the hearing) made some preliminary observations in relation to the orders requested by the Claimant. She has submitted that the scope of relief considered by this court be narrowed to judicial review, declarations that certain constitutional rights have been infringed and the issue of constitutional and vindicatory damages.

16

She stated that the statement of case contained no grounds or evidence in support of the claim for assault and battery. She submitted further that the Claimant's submissions did not advance arguments in that regard neither as to liability nor damages so the only conclusion to be drawn is that these causes of action have not been pursued. It is to be noted that Mr. Hadrian Christie, counsel for the claimant, has not contradicted this submission and in any event, no such evidence has been put before this court in relation to those torts.

17

In relation to the issue of false imprisonment, it is Ms. Larmond's contention that...

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1 cases
  • Brenton Henry v Her Honour Mrs. D. Gallimore-Rose
    • Jamaica
    • Supreme Court (Jamaica)
    • 15 July 2020
    ...this Honourable Court may see fit. 4 In our judgment in the matter Brenton Henry v HH Mrs. D. Gallimore-Rose and The Attorney General [2016] JMFC Full 10, refusing the relief sought, we made the following 1. Judicial Review refused; 2. Orders for Certiorari are refused; 3. Declarations are ......

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