Comptoir Panamerican v Reginald Aitken Ltd
| Jurisdiction | Jamaica |
| Judge | Clarke, J. |
| Judgment Date | 21 September 1987 |
| Court | Supreme Court (Jamaica) |
| Docket Number | No. C.L.C. 470 of 1986 |
| Date | 21 September 1987 |
Supreme Court
Clarke, J. (Ag.)
No. C.L.C. 470 of 1986
Allan Wood for the plaintiff.
John Lord and John Givans for the defendant.
Criminal Law - Road Traffic offence — Appeal vs. conviction — Court of Appeal dismissed appeal — Appeal to Privy Council — There were no considerations in the public interest or in the interests of the defendant that make it unfair or a different magistrate to accept a change of plea from not guilty to guilty on an adjourned hearing — Second magistrate had jurisdiction to accept plea of guilty — Conviction and sentence no a nullity — Once recorded magistrate was functus officio and could not male a further order — Appellant entitled to rely on autrefois convict in respect of conviction defendant cannot reasonably argue that it is not liable to submit to a judgment expressed in Belgian francs — Illegality of contract is no defence in instant case — Judgment in terms of summons.
Clarke, J. Pursuant to section 79 of the Judicature (Civil Procedure Code) Law the Plaintiff applies by summons for an order from this Court to enter judgment without trial for the sum of B.F. 4,855,902.22 (Belgian francs) and interest thereon at the rate of 20 per cent per annum from the 20th November, 1986 to the date of judgment.
Let me go back a little. By a specially endorsed writ dated 20th November, 1986 issuing out of the Supreme Court the plaintiff claimed against the defendant to recover the sum of 6,483,226 Belgian francs comprising:
-
“(a) the balance of the purchase price due and owing by the defendant to the plaintiff for goods sold and delivered by the plaintiff to the defendant B. F. 4,855,902.22; and
-
(b) interest at the rate of twenty per cent (20%) per annum on the outstanding and overdue balance of the purchase price of the said goods as evidenced by five bills of exchange drawn by the plaintiff and accepted by the defendant from the respective due dates thereof to the 20th day of November, 1986 amounting to B.F 1,627,324.76 and
-
(c) losses in the exchange rate between the Belgian franc and the U.S. dollar as a consequence of the failure of the defendant to pay to the plaintiff the agreed prices for the said goods on the due dates agreed whereby the amount due in U.S. dollars became converted to and payable in Belgian francs at the rate of exchange valid on the due date of payment;
agreed to be paid by the defendant to the plaintiff pursuant to an agreement in writing made between the plaintiff and the defendant and dated the 6th April, 1984.”
The plaintiff supplied particulars including those in respect of the movement of the rate of exchange for the purchase of Belgian francs with United States dollars on the relevant dates for payments due and payments received.
The defendant entered an appearance to the writ and promptly filed and served a defence. It was thereafter that the plaintiff took out the summons for summary judgment supported by affidavit verifying both the cause of action and the amount claimed and stating that in the belief of the deponent there is no defence to the action and exhibiting the said agreement in writing of 6th April, 1984.
By that agreement upon which the action is predicated the plaintiff, a Belgian Company, agreed to sell, and the defendant, a Jamaican Company, agreed to buy, a quantity of steel hardware. The proper law of the contract, as ascertained by the intention of the parties expressed in the agreement, is Belgian law. The contract nominates as the currency of payment United States dollars but also endorsed on the face of the contract is this stipulation:
“In the case of delay in payment or transfer the debt is automatically converted into Belgian francs on due date of payment and will be subject to interest 20% per annum.”
The plaintiff contends that the goods were duly shipped and delivered to the defendant and that the defendant made certain payments on account as set out in the particulars to the claim. The plaintiff also contends that the aforesaid balance of the price in Belgian currency is due and owing together with interest thereon over the period specified in the summons.
Once I am satisfied that the plaintiff has proven its claim in a context where the facts are not in dispute and the defendant is unable to set up a bona fide defence or raise an issue against the claim which ought to be tried, then I may make an order empowering the plaintiff to enter judgment. As Jessel, M. R., put it in Anglo Italian Bank v.Wells 38 L.T. 197 at pp. 201 and 202.
“… when the judge is satisfied not only that there is no defence but no fairly arguable point to be argued on behalf of the defendant it is his duty to give judgment for the plaintiff.”
If on the other hand I find that the defence is reasonably arguable then the summons ought to be dismissed.
Of course, I bear in mind that both on principle and on authority the application may be granted even where a defence is filed — see Stewart Gregg v. Albert McCulloch 12 J.L.R. 749.
It is therefore critical that I examine the defence to see whether there is at least “an arguable point to be argued on behalf of the defendant.”
First of all I set out the pleaded defence:
- No admission is made as to the amount claimed or as to any amount at all. 2. The defendant says that the plaintiff drew on the defendant's bills of exchange payable in United States currency which bills of exchange were accepted by the defendant and the plaintiff converted such amounts into Belgian francs at its own risk and the defendant contends that it is not liable for any such loss suffered as a result of such conversion or conversions. 3. The defendant further says that the said contracts are illegal void and unenforceable by virtue of the provisions of the Exchange Control Act.
Particulars
-
(a) At the dates of the formation of the contacts for the sale of goods and at all material times the plaintiff was a resident of Belgium;
-
(b) the said contracts which were made in Jamaica stipulated for payments in United States currency outside Jamaica to the plaintiff;
-
(c) no approval was given by the Minister of Finance as to the formation of the contracts.”
Now, there is no dispute of fact drawn between the parties. There is no traverse of the allegations of facts set out in the plaintiff's claim. The defendant in pleading that it makes no admission as to the amount claimed has not denied the computation as to the balance due.
Two issues arise on the pleadings. The first is whether on the contract (which is not in dispute) the plaintiff is entitled to recover losses flowing from the conversion to Belgian francs from United States dollars or whether the plaintiff has to bear that risk or that loss. The second issue is whether the contract by not having the approval of the Minister is rendered illegal and void as a consequence of the Exchange Control Act.
Mr. Wood submitted that the law on both those issues is now well settled in the plaintiffs favour and that therefore it cannot be said that the defendant has a reasonable or arguable defence.
Mr. Lord did not challenge the plaintiff's contention on the first issue and in argument conceded that, were that the only issue, the Court would be at liberty to order that judgment be entered in the currency that best expresses the plaintiff's loss. I will return to this aspect of the matter later on in this judgment but I find it convenient to turn at this stage to the second issue, so extensively argued on both sides.
To facilitate reference and discussion it is appropriate to set out the relevant sections of the Exchange Control Act:
Section 7: “Except with the permission of the Minister, no person shall do any of the following things in the Island, that is to say –
(without provis)
-
(a) make any payment to or for the credit of a person resident outside of the scheduled territories;
-
(b) make any payment to or for the credit of a person resident in the scheduled territories by order or on behalf of a person resident outside the scheduled territories;
-
(c) place any sum to the credit of any person resident outside the scheduled territories.”
Section 8:
-
“(1) Except with the permission of the Minister no person, resident in the scheduled territories shall, … in the Island do any act which involves, is in association with, or is preparatory to, the making of any payment outside the Island to or for the credit of a person resident outside the scheduled territories.
-
(2) …”
Section 36: Contracts, legal proceedings etc.
-
“(1) It shall be an implied condition in any contract that, where by virtue of this Act the permission or consent of the Minister is at the time of the contract required for the performance of any term thereof, that term shall not be performed except in so far as the permission or consent is given or is not required:
Provided that this subsection shall not apply in so far as it is shown to be inconsistent with the intention of the parties that it should apply whether by reason of their having contemplated the performance of that term in despite of the provisions of this Act or for any other reason.
-
“(2) …”
-
“(3) The provisions of the Fourth Schedule shall have effect with respect to legal proceedings …”
The...
To continue reading
Request your trial