Patterson & Nicely v Lynch

• Jurisdiction: Jamaica
• Judge: Luckhoo, J.A.,Fox, J.A.,Robinson, J.A.
• Judgment Date: 30 November 1973
• Neutral Citation: JM 1973 CA 69
• Docket Number: Resident Magistrate's Court Civil Appeal No. 18 of 1973
• Court: Court of Appeal (Jamaica)
• Date: 30 November 1973

Court of Appeal

Luckhoo, P., Fox, J.A.; Robinson, J.A

Resident Magistrate's Court Civil Appeal No. 18 of 1973

Patterson & Nicely

and

Lynch

Appearances:

Mrs. S. Playfair and Carl Dundas for the appellants

W. Bentley Brown for the respondent

Practice and procedure - Appeals - Security for costs

Luckhoo, J.A.

1 When this appeal was called on for hearing Mr. Bentley Brown for the respondent submitted in limine that it was not competent for the Court to hear the appeal there having been deposited in the resident magistrate's court for the parish of St. Andrew on the part of the two appellants at the time of lodging the appeal on May 17, 1972, the sum of one dollar only as security for the due prosecution of the appeal whereas under the provisions of s.256 of the Judicature (Resident Magistrates) Law, Cap. 179 the sum of two dollars was required to be deposited in that regard.

2 Mrs. Playfair for the appellants, while conceding, that the provisions of s.256 of Cap. 179 required the deposit by the appellants of two dollars as security for the due prosecution of the appeal at the time the appeal was lodged contended that it was nevertheless competent for the Court by virtue of the provisions of s.266 of Cap. 179 to admit the appellants to impeach the judgment of the learned resident magistrate, the deposit required by s.256 to be made as security for the due prosecution of the appeal being a formality described by that section of the Law, the omission on the part of the appellants to deposit the full amount at the time of lodging the appeal having arisen from inadvertence on their part, and the justice of the case appearing to require that the appellants be allowed to impeach the resident magistrate's judgment. We were informed by Mrs. Playfair that the remaining sum of one dollar was deposited in the resident magistrate's court for the parish of St. Andrew on July 4, 1973 Section 256 of the Judicature (Resident Magistrates) Law, Cap. 179 provides as follows:–

“The appeal may be taken and minuted in open court at the time of pronouncing; judgment, but if not so taken then a written notice of appeal shall be lodged with the Clerk of the court, and a copy of it shall be served upon the opposite party personally, or at his place of dwelling; or upon his solicitor, within fourteen days after the date of the judgment; and the party appealing shall at the time of taking or lodging the appeals deposit in the court the sum of one dollar as security for the due prosecution of the appeals and shall further within fourteen days after the taking or lodging of the appeal give security, to the extent of twenty-four dollars for the payment of any costs that may be awarded against the appellant, and for the due and faithful performance of the judgment and orders of the Court of Appeal.

Such last-mentioned security shall be given either by deposit of money in the court, or by the party appealing entering into a bonds with two sureties to be approved by the respondent, or in case of dispute, by the Clerk of the court with an appeal to the magistrate. No stamp duty shall be payable on such bond.

There shall be no stay of proceedings on any judgment except upon payment into court of the whole sum, if any, found by the judgment, and costs if any, or unless the magistrate, on cause shown, shall see fit to order a stay of proceedings.

On the appellant complying with the foregoing requirements, the magistrate shall draw ups for the information of the Court of Appeal, a statement of his reasons for the judgment, decree, or order appealed against.

Such statement shall be lodged with the Clerk of the court, who shall give notice thereof to the parties, and allow them to peruse and keep a copy of the same.

The appellant shall, within twenty-one days after the day on which he received such notice as aforesaid draw up and serve on the respondent, and file with the Clerk of the courts the grounds of appeals and on his failure to do so his right to appeal shall, subject to the provisions of section 266 of this Law, cease and determine.

If the appellant after giving notice of appeal and giving security as aforesaid fails duly to prosecute the appeal, he shall forfeit as a court fee the sum of one dollar deposited as aforesaid.

If he appears in person or by counsel before the Court of Appeal in support of his appeals he shall be entitled to a return of the said sum of one dollars whatever may be the event of the appeal.”

3 Section 266 of that Law provides as follows:–

The provisions of this Law conferring a right of appeal in civil causes and matters shall be construed liberally in favour of such right, and in case any of the formalities prescribed by this Law shall have been inadvertently, or from ignorance or necessity omitted to be observed it shall be lawful for the Court of Appeal, if it appear that such omission has arisen from inadvertence, ignorance, or necessity, and if the justice of the case shall appear to so requires with or without terms, to admit the appellant to impeach the judgment, order or proceedings appealed from.”

4 The question for our determination in limine is whether the giving of security for the due prosecution of an appeal is a formality within the contemplation of s.266 of Cap. 179. That question was raised in Christian v. Brown R.M.C.A. No. 46 of 1972 (unreported) and answered in the negative by the Court on February 2, 1973, acting by analogy with Welds v. Montego Bay Ice Co. Ltd., and Smith (1962) 5 W.I.R. 56, also a decision of the courts where it was hold that the giving of security for costs in accordance with s.256 of Cap. 179 was a condition precedent to the founding of the jurisdiction of the Court of Appeal and that there was no power to treat it as a formality under s.266 of Cap. 179. The Court in Christian v. Brown said:–

“The answer to that question seems to lay in the case of Welds v. Montego Bay Ice Co., Ltd, and Smith which is to be found at p.56 of 5 W.I.R. It is only necessary to refer to the head note to that case in order to arrive at the principle upon which it was decided:

‘On a preliminary objection being taken by counsel for the respondent that a condition precedent to establish the jurisdiction of the court had not been complied with in that there being two appellants, security for costs had only been given for one sum of £10, instead of for two such sums as required by the provisions of s. 256 of the Judicature (Resident Magistrates) Law, Cap. 179 [J.] - HELD:

• (i) that s. 11 (2) of the Judicature (Appellate Jurisdiction) Law, 1962 [J.], only gave the court power to extend the time for giving notice of appeal and filing grounds of appeal. The giving of security for costs in accordance with the provisions of s.256 of the Judicature (Resident Magistrates) Laws Cap. 179 [J.], was still a condition precedent to the founding of the jurisdiction of the court and there was no power to treat it as a formality under s.266 of the said law;

• (ii) that s.256 of the said law expressly required “the party appealing” to give security and as there were two parties appealing the security was required to be given “by each party.‘

The principle in that case would apply to the instant case. It seems to use therefore, that this particular omission cannot be treated as a formality.”

5 The court then went on to refer to s. 11 (2) of the Judicature (Appellate Jurisdiction) Law, 1962 (No. 15) in its original form and to that section as repealed and re-enacted by the Judicature (Appellate Jurisdiction) (Amendment) Act, 170 (No. 12), the former empowering the court to extend the time within which notice of appeal may be given or the grounds of appeal may be filed and the latter amplifying the powers of the court to enable the court to grant an extension of time within which security for the costs of an appeal and for the due and faithful performance of the judgment and orders of the court may be furnished. The court took the view that the absence of any provision in the amending Act of 1970 empowering the court to extend the time within which security for the due prosecution of an appeal may be deposited might have been an omission on the part of the Legislature which omission ought to be remedied. In the result the court declined to allow the appellant to impeach the judgment in respect of which that appeal was brought,

6 Mrs. Playfair has attracted our attention to the case of Aarons v. Lindo (1953) 6 J.L.R. 205 where precisely the same question was raised before the then Court of Appeal of Jamaica and answered by that court in the affirmative. No reasons were given by that court for so holding. It is conceded that the decisions of that court - a court of co-ordinate jurisdiction - do not bind this court though they are of course entitled to great respect. In a short oral judgment O'Connor, C.J. (speaking also on behalf of Cluer and MacGregor, JJ.) said:–

“We are of the opinion that the requirement that the payment of the sum of ten shillings shall be made at the same time of the lodging of the appeal is a formality and that this court has power under s.269 to allow the appeal to be heard. In the circumstances of the cases we are of opinion that the appellant should be allowed to proceed with his appeal.”

7 Section 269 of the Resident Magistrates Law, Cap. 432 (1938 Edition of the Laws of Jamaica) appears as s. 266 of Cap. 179 (1953 Renewed Edition of the Laws of Jamaica). The view of the Court of Appeal in Aarons v. Lindo was not brought to the attention of the court in Christian v. Brown and was not adverted to in the judgment of Welds v. Montego Bay Ice Co. Ltd. and Smith (which formed the basis of the decision in Christian v. Brown). It also does not appear that the court in Christian v. Brown was referred to Rochester v. Chin and Matthews (1961) 4 W.I.R. 40 where the former Court of Appeal (at p. 40) in holding that the giving of...