Jamaica Ice Company & Eaton v Morrison

• Jurisdiction: Jamaica
• Judge: Lewis, J.
• Judgment Date: 21 November 1963
• Neutral Citation: JM 1963 CA 9
• Date: 21 November 1963
• Court: Court of Appeal (Jamaica)
• Docket Number: Civil Appeal No.41 of 1963

Court of Appeal

Cundall, P.; Lewis, J.; Duffus, J.

Civil Appeal No.41 of 1963

Jamaica Ice Co & Eaton

and

Morrison

Appearances

Mr.D.Delay for defendants/appellants

Mr.G.McCalla for plaintiff/respondent

Practice and Procedure - Appeals — Security for costs

Lewis, J.

1 In this case a preliminary point has been taken by the respondent that the required security for costs under section 256 of the judicature (Resident Magistrates) Law, cap.179, has not been given. There are two appellants; their notice of appeal has been given jointly by one solicitor and only one sum of £10 has been paid in by way of security.

2 Counsel for the respondent has referred to the case of Welds v. Montego Bay Ice Co.Ltd., and Smith, reported at 1962 5 West Indian Roberts, page 56, in which this court on a similar objection held that section 256 of the law expressly requires the party appealing to give security and that where there are two or more parties appealing security is required to be given by each party.

3 Counsel for the appellant in a very able argument has submitted that this case can be distinguished on the ground that in the instant case the result of the appeal would affect both applicants equally and that the requirement of security by both is merely a formality. He referred to the report in the Welds case where Mr. Justice Phillips, then acting President, is reported to have said, after referring to the submission in that case:

“We do not consider the submission to be sound. Section 256 expressly requires ‘the party appealing’ to give security. There were two parties appealing and therefore security was required to be given by each party. It may well be that in a case where there are two or more appellants one may be successful and the other or others unsuccessful. In such a case the successful appellants would prima facie be entitled to the return of his security and perhaps an order for costs against the respondents. Obviously in such a case hardship might result to the respondent unless security for costs had been lodged by each of the unsuccessful appellants.”

4 Learned counsel submitted that the passage beginning, “It may well be…” formed part of the ratio of Welds' case and that, since in this case that condition of affairs did not exist – was not likely to exist – the decision in Welds' case should not be applied.

5 In my view, what was said by the learned Acting President with respect to the...