Panton (Donald), Janet Panton, Orrett Hutchinson and Edwin Douglas v DPP and Attorney General

• Jurisdiction: Jamaica
• Judge: HARRISON, T.A.: , LANGRIN, J.A. , PANTON JA.
• Judgment Date: 20 December 1999
• Neutral Citation: JM 1999 CA 80
• Judgment citation (vLex): [1999] 12 JJC 2011
• Court: Court of Appeal (Jamaica)
• Date: 20 December 1999

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE HARRISON, J.A THE HON. MR. JUSTICE LANGRIN, J.A THE HON. MR. JUSTICE PANTON, J.A

BETWEEN

DONALD PANTON

PLAINTIFFS/APPELLANTS

AND

JANET PANTON

AND

ORRETT HUTCHINSON

AND

EDWIN DOUGLAS

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

DEFENDANTS/RESPONDENTS

AND

THE ATTORNEY GENERAL

Frank Phipps, Q.C., and Abe Dabdoub for 1st appellant Donald Panton

Ian Ramsay, Q.C., and Miss Deborah Martin for 2nd appellant Janet Panton

Walter Scott and Mrs. Sharon Usim for 3rd appellant Hutchinson

Mrs. Jacqueline Samuels-Brown for 4th appellant Douglas

Miss Paula Llewellyn and Miss Gail Walters for the Director of Public Prosecutions

Douglas Leys for the Attorney General

CIVIL PROCEDURE - Writ - Application to strike out - Application seeking constitutional redress - Judicature (Supreme Court) Act, s. 41 - Damages for breach of constitutional rights to unfair hearing under s. 20(1) of Constitution of Jamaica

HARRISON, T.A.:

1 This is an appeal from an order of Smith, J, dismissing a preliminary objection by the plaintiffs/appellants to the hearing of summonses of the defendants/respondents, which summonses sought to strike out the writ, endorsement and statement of claim filed by each appellant. Smith, J., also reserved a point of law for the consideration of this court. The order reads:

• " 1. Preliminary objection is dismissed;

• 2. Leave to Appeal is granted;

• 3. The Court, pursuant to Section 41 of the Judicature (Supreme Court) Act reserved the following point for the consideration of the Court of Appeal:

  'Whether or not on a Writ of Summons and Statement of Claim seeking constitutional redress it is open to the Respondents on an application by Summons to seek to strike out the Writ of Summons and Statement of Claim on the grounds that there is no reasonable cause of action and/or that the action is frivolous and vexatious and/or that alternate adequate means of redress are and/or have been available.'

• 4. Costs to the Plaintiffs to be taxed if not agreed."

2 The appellants had objected that the respondents had no "locus standi" to be heard on their summonses and that Smith, J., had no jurisdiction to hear the respondents because they had not entered appearances to the writs filed by the appellants.

3 The history of this matter is that on June 30, 1997, the appellants filed a writ of summons and endorsement, claiming declarations, orders, an injunction and damages for a breach of their constitutional rights to a fair hearing under section 20(1) of the Constitution of Jamaica. On April 27 and 28, 1998, the second respondent and the first respondent, respectively, filed summonses to strike out the said writ, as disclosing no cause of action. On May 7, 1998, the appellants filed a notice for leave to enter judgment in default of defence. The respondents, on May 15, 1998, entered appearances. Both summonses by the respondents to strike out the writ and endorsement and the notice for leave to enter judgment were consolidated and re-listed for hearing on April 19, 1999. The preliminary objection was dismissed by Smith, J., on April 23, 1999, hence the instant appeals.

4 Mr. Phipps, Q.C., for the first appellant argued, before this court, that the respondents, not having entered appearances to the writ of summons within 14 days of service, were precluded from being heard by the court on the summonses to strike out the said writs. The reason being that the fact of non-entry of appearance meant that the respondents had not submitted themselves to the jurisdiction of the court and, therefore, the said summonses were nullities and not irregularities which could have been dealt with under the provisions of section 678 of the Judicature (Civil Procedure Code) Law ("the Code"). Furthermore, the power to strike out proceedings under the provisions of section 238 of the Code does not apply to a breach of constitutional rights, the Rules governing which are subsequent to the said Code. A single judge cannot strike out a writ and endorsement and any such application must be determined by a bench of "not less than three judges of the Supreme Court", at the hearing of the action, as provided by the said Rules.

5 Mr. Ramsay, Q.C., for the second appellant advanced an argument similar to that of the first appellant, emphasizing that the rules of the Supreme Court Practice in England were amended, abolishing the distinction between nullities and irregularities, unlike Jamaica. The summonses to strike out were, therefore, nullities. He submitted further that, a constitutional action, being a new species of action, all aspects of it must be determined by a "panel of three (3) judges", and therefore a single judge had no power to determine the applications.

6 Mrs. Usim for the third appellant, and Mrs. Samuels-Brown for the fourth appellant associated themselves with the submissions of both counsel.

7 Mr. Leys, whose submission Miss Llewellyn for the first respondent adopted, arguing for the second respondent said that it was the acknowledgment of service by the respondent which gives the court jurisdiction and not the entry of appearance as required by section 52 of the Code, which is merely directory. Noncompliance of entry of appearance is an irregularity, a mere late appearance, permissible by section 61 of the said Code and the appellants having taken a step...