Ralford Gordon v Angene Russell

• Jurisdiction: Jamaica
• Judge: Phillips JA,Morrison JA
• Judgment Date: 30 March 2012
• Neutral Citation: [2012] JMCA App 6
• Docket Number: APPLICATION NO 205/2010
• Court: Court of Appeal (Jamaica)
• Date: 30 March 2012

Between

Ralford Gordon

Applicant

and

Angene Russell

Respondent

[2012] JMCA App 6

Before:

The Hon Mr Justice Morrison JA

The Hon Miss Justice Phillips JA

The Hon Mrs Justice McIntosh JA

APPLICATION NO 205/2010

JAMAICA

IN THE COURT OF APPEAL

Miss Debby-Ann Samuels instructed by Debby-Ann Samuels & Co for the applicant

Mrs Jennifer M. Hobson-Hector for the respondent

Morrison JA

1 I have had the advantage of reading, with admiration and respect, the careful judgment prepared by Phillips JA in this matter, and I am happy to be able to accept the solution which she proposes to the problem faced by the applicant. I therefore agree that the applicant should be granted an extension of time within which to file a notice of appeal from the order made on 2 September 2010 by the learned Resident Magistrate for the parish of St. Ann. It follows from this order that the sums payable for the due prosecution of the appeal can then be paid at the same time.

2 However, for my part, I wish to reserve my opinion on the question of whether the majority decision of this court in Patterson and Nicely v Lynch (1972) 12 JLR 1241 is “not in keeping with the development of the legislation or the case law leading up to it is not in the interests of justice and is therefore potentially flawed”, as Phillips JA suggests at para [57] of her judgment. Given the way in which the court has determined, after due consideration, that this application should be disposed of, I do not think that the correctness or otherwise of that decision is of any further relevance to the court's decision today and, on that basis, I am accordingly content to leave that question for another day when it is directly in issue”.

Phillips JA

3 This application had many days before the court as the respondent firstly did not appear, and then was unrepresented, and as the application raised important issues of law, the respondent was given every opportunity to obtain representation. We are grateful to counsel for agreeing to assist the respondent and for the efforts made by both counsel by way of their oral and written submissions in order to help the court in its deliberations on a very interesting matter.

4 This application arises from the decision of Mrs Ruth Lawrence, Resident Magistrate for the parish of St Ann, made on 2 September 2010 in the Resident Magistrate's Court and Court of Petty Sessions holden at Brown's Town in the said parish. It was ordered that (i) the applicant was non-suited; and (ii) the applicant should pay costs to the respondent in the sum of $27,400.00. Verbal notice of appeal was given on 2 September 2010.

5 On 14 September 2010, counsel for the applicant, lodged written notice and grounds of appeal at the Resident Magistrate's Court in Brown's Town, St Ann. The grounds of appeal were:

• “(i) That the Learned Magistrate erred in law in her application of the (bona-fide belief test) in ruling that because the Plaintiff said he had a suspicion that the child was not his, that he knew that the child was not his.

• (ii) Moreover the Learned Magistrate in making her ruling failed to consider that a suspicion does not amount to reasonable proof or knowledge of the child not being his.

• (iii) The Learned Magistrate also erred in refusing the Plaintiff from recovering all that he has spent in maintenance of the child for the eight (8) years from the time of her birth.”

6 The appellant sought the following orders:

• “(i) That the Judgment of the Learned Magistrate, entered on the 2 ^nd September 2010, be set aside and judgment be found for the Plaintiff/ Appellant.

• (ii) That the sum of Twenty Seven Thousand, Four Hundred Dollars ($27,400.00) paid by the Plaintiff/Appellant in respect of the Order herein, be returned forthwith to the Plaintiff/ Appellant.”

7 Notice of application for court orders was initially filed on 3 November 2010, and subsequently amended and re-filed on 25 February 2011, requesting that the applicant be granted an extension of time in which to file his notice of appeal, and for the payment of sums for the due prosecution of the appeal. The applicant asked that the judgment be stayed pending the decision of the Court of Appeal.

8 The application was based on the following three grounds:

• “(i) That the Applicant took steps to file his Notice of Appeal through his attorneys within the required time but due to a misunderstanding the required sums for due prosecution were paid thereafter.

• (ii) That the Applicant has reasonable grounds upon which to base his appeal.

• (iii) That the Learned Judge erred in her application of the law as it relates to the bonafide test in determining judgment in favour of the Respondent in the court below.”

9 The applicant relied on the affidavit of Debby-Ann Samuels, the attorney who had conduct of the matter on his behalf at all material times, sworn to on 28 October 2010. Miss Samuels deposed that the applicant had given verbal notice of appeal when the matter had been determined in the Resident Magistrate's Court on 2 September 2010, and he was non-suited and ordered to pay the sum of $27,400.00. She also stated that she had filed the notice and grounds of appeal on 14 September 2010 in the Resident Magistrate's Court in Brown's Town, St Ann, but the notice and grounds of appeal were sent back to her office stamped “Received” by the Resident Magistrate's Court along with instructions to send the notice and grounds to the Court of Appeal. Miss Samuels indicated that she had followed these instructions.

10 Miss Samuels on 4 October 2010, stated that she had received a letter from the Resident Magistrate's Court stating that the notice and grounds of appeal were sent back to her office because she had not sent the amount of $600.00 required by section 256 of the Judicature (Resident Magistrates) Act (JRMA) for the due prosecution of the appeal.

11 Miss Samuels further deposed that by the time the above information had been received, the time for lodging the notice of appeal had expired, and efforts to remedy the situation were unsuccessful, as the notice and grounds of appeal were rejected by the Resident Magistrate's Court. She indicated that what had occurred was due to an oversight on her part and, therefore sought the court's assistance so that the applicant would not bear the consequences of the same. She confirmed that she had received instructions from the applicant to appeal the decision of the learned Resident Magistrate, and that the applicant had a good arguable case and reasonable grounds upon which to appeal the said decision.

Issue

12 The applicant has therefore raised the issue of whether the Court of Appeal can extend the time for him to file notice and grounds of appeal, as well as extend the time to pay the sum of $600.00 required for the due prosecution of the appeal.

13 The provisions relevant to that issue are sections 251, 256 and 266 of the JRMA and section 12 of the Judicature (Appellate Jurisdiction) Act (JAJA).

14 Section 251 of the JRMA states that subject to the provisions of the Act, “an appeal shall lie from the judgment, decree, or order of a Court in all civil proceedings”.

15 Section 256 of the JRMA, outlines the appeal process in the following manner:

“256. 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 Courts, and a copy of it shall be served … within fourteen days after the date of the judgment; and the party appealing shall, at the time of taking or lodging the appeal, deposit in the Court the sum of six hundred dollars as security for the due prosecution of the appeal, and shall further within fourteen days after the taking or lodging of the appeal give security, to the extent of six thousand 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.

…

On the appellant complying with the foregoing requirements, the Magistrate shall draw up, 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 Courts, 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 appeal, and on his failure to do so his right to appeal shall, subject to the provisions of section 266, 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 six hundred dollars deposited as aforesaid.

If he appears in person or by counsel before the Court of Appeal in support of his appeal, he shall be entitled to a return of the said sum of six hundred dollars whatever may be the event of the appeal.” (emphasis mine)

16 Section 256 therefore contemplates that in order for a civil appeal from the Resident Magistrate's Court to be heard, the appellant must:

• (i) give notice of appeal at the time of judgment, or within 14 days of such judgment;

• (ii) serve notice of appeal on the opposite party within 14 days of judgment;

• (iii) deposit in the court the sum of $600.00 for the due prosecution of the appeal at the time of taking or lodging the appeal;

• (iv) give security for costs and for the due and faithful performance of the judgment and orders of the Court of Appeal in the sum of $6000.00 within 14 days after taking or lodging the appeal. On the appellant complying with requirements (i) through (iii), the magistrate will draw up a statement of his reasons for the...