Murray (Petal Eleanor) v Kenneth Anthony Neita

• Jurisdiction: Jamaica
• Judge: SYKES J
• Judgment Date: 18 August 2006
• Judgment citation (vLex): [2006] 8 JJC 1803
• Court: Supreme Court (Jamaica)
• Date: 18 August 2006

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO 2006 HCV 0176

BETWEEN

PETAL ELEANOR MURRAY

CLAIMANT

AND

KENNETH ANTHONY NEITA

DEFENDANT

IN CHAMBERS

Mr. Joseph Jarrett instructed by Joseph Jarrett and Company for the claimant

Mr. Ravil Golding instructed by Lyn-Cook, Golding and Company for the defendant

STATUTORY INTERPRETATION -

1 STATUTORY INTERPRETATION, USE OF PARLIAMENTARY DEBATES AND MINISTERIAL STATEMENTS, SECTION 2 (1) OF THE PROPERTY (RIGHTS OF SPOUSES) ACT, RULE 26.3 (1)(C) OF THE CIVIL PROCEDURE RULES

SYKES J

2 1. The issue in this case is whether a man who is lawfully married but separated from his wife for over twenty years and during the period of separation was living with another woman is a single man within the meaning of the word spouse as defined in section 2 (1) of the Property (Rights of Spouses) Act 2004.

3 2. Miss Murray, the claimant, is a single woman who has lived for over twenty years with Mr. Kenneth Neita. It is common ground that Mr. Neita was married on December 8, 1972. It also agreed that his wife is still alive and they are not divorced although they have separated for over twenty years. Miss Murray's relationship with Mr. Neita has now ended. She brings a claim by way of fixed date claim form dated May 15, 2006, in which she is claiming up to fifty percent of the property owned by Mr. Neita including JA$ 119,000,000.00 he won in the Jamaican lottery game known as Lotto. According to Miss Murray, Mr. Neita's success in the Lotto has made him more appealing in the eyes of a particular young woman in his community. This young lady has succeeded in dislodging Miss Murray from Mr. Neita's affection. The claim is brought under the Property (Rights of Spouses) Act ("the Act").

4 3. The fixed date claim form was accompanied by an application for a freezing order. Mr. Neita's riposte was an application to strike out the claimant's statement of case on the ground that it discloses no reasonable cause for bringing the claim. Both applications are before me. Although Miss Murray's application for the freezing order was filed first in time I have decided to deal with Mr. Neita's application first because success for him concludes the claim under the Act.

5 4. Mr. Golding's submission is simple yet devastating. He submits that the definition of spouse in the Act does not include the defendant because he is not a single man. This is an application under rule 26.3 (l)(c). Under that rule no evidence can be utilised. The court simply looks at the claim and decides whether as framed it is maintainable in law.

6 The statutory words to be interpreted

7 5. Section 2 (1) of the Act defines spouse in these terms:

Spouse includes -

(a) a single woman who has cohabited with a single man as if she were in law his wife for a period of not less than five years;

(b) a single man who has cohabited with a single woman as if he were in law her husband for a period of not less than five years

immediately preceding the institution of proceedings under this Act or the termination of cohabitation, as the case may be.

8 Section 2 (2) states:

The terms "single woman" and "single man" used with reference to the definition of "spouse"include widow or widower, as the case may be, or a divorcee.

9 The role of Parliamentary debates

10 6. Mr. Jarrett sought to put before me parts of Hansard which I was assured would illuminate the point under consideration. He relied on the well known case of Pepper v Hart [1993] A.C. 593. The implications of this case have to be carefully examined to see if I should accept Mr. Jarrett's invitation. In that case Lord Browne-Wilkinson laid down the threshold that must be met before recourse can be had to the debates in Parliament and in particular to any ministerial statement about the legislation in question. As taken from the head note the House held that subject to any question of Parliamentary privilege, the rule excluding reference to Parliamentary material as an aid to statutory construction should be relaxed so as to permit such reference where (a) the legislation was ambiguous or obscure or led to absurdity, (b) the material relied upon consisted of one or more statements by a Minister or other promoter of the Bill together if necessary with such other Parliamentary material as was necessary to understand such statements and their effect and (c) the statements relied upon were clear.

11 7. It is my view that the majority of the House of Lords in Pepper v Hart did not give the weight that ought to have been given to the separation of powers between the courts and the legislature. There is the possibility that if the case is taken to its logical conclusion the separation of powers between the court and the legislature might be blurred. It is now appreciated that if the courts are going to rely on ministerial statements, then it is not farfetched that a promoter of any particular legislation, might, with an eye on future interpretation by the court, produce a well crafted statement which he hopes the courts may look at in order to influence the interpretation of the enactment.

12 8. The extent to which a ministerial statement should be attributed to the whole legislature was not adequately addressed by the House. In addition to the possible blurring of the separation of powers between the courts and the legislature Lord Browne-Wilkinson's also failed to have sufficient regard to the fact the there is also a separation of powers between the executive and the legislature. The executive has no power to enact any legislation under the Jamaican Constitution. It can only propose laws but the enactment of legislation is conferred, by the Constitution, on the legislature (see section 48 of the Constitution). To get laws passed the executive has to submit a Bill to Parliament for discussion and debate. It is by this process the Parliament is able to exercise control over the executive's legislative programme. The necessity to introduce the Bill to Parliament means that public scrutiny is also possible. Parliamentary oversight and public scrutiny may force the executive to agree to amendments to the law which they might have thought about or having thought about them, rejected them. The minister or promoter of a Bill usually makes some statement indicating in general terms, when the Bill is introduced in the legislature, what he or she hopes to achieve by the law if enacted. The final version of the law when passed may be a far cry from what the minister or promoter envisaged. Because of the debate, sometimes acrimonious, that takes place, concessions are made and amendments included to such an extent that the final enacted version is quite different from the Bill that entered Parliament. This process prompted one writer to say that what comes out of the legislature is what should have entered. Indeed, depending on the nature of the Bill, the vigour of Parliamentary and public opposition the executive may abandon its original intention. In this way executive authority is controlled.

13 9. If the legislature is to be regarded as separate from the executive then this fact alone should alert one to the danger of attributing to a group of law makers, as a whole, the views of one member who may or may not also be a member of the executive. A ministerial statement is at best a statement of the executive's intention but it is indeed perilous to use that statement as representing the "intention of Parliament". If Lord Browne-Wilkinson's prescription is not closely circumscribed there is the risk that the executive not only has its views attributed to Parliament (through the ministerial statement) but also controls the interpretive function of the courts. Thus the voice of the executive is not only heard in Parliament but is given pre-eminence in court under the guise of interpretation. This to my mind is not what the Constitution envisioned. It seems to me that one possible peril in Lord Browne-Wilkinson's approach is that the court, in looking at a ministerial or a promoter's statement, may well be giving effect to a particular point of view instead of giving effect to the legislature's intention as expressed in the legislation thereby circumventing the shackle placed on the executive by the Constitution. What I am saying is that unless regard is had only to what the Parliamentarians have enacted (which may be quite different from what the minister or promoter intended) there is the risk that the courts may interpret the legislation in a manner consistent with the stated view point of the minister or promoter when that view point may have either been rejected or partially accepted by the Parliamentarians who would then have enacted a law in accordance with their views and...