Re McDonald

• Jurisdiction: Jamaica
• Judge: (Smith, Edun and Graham-Perkins, JJ.A.)
• Judgment Date: 01 January 1952
• Court: Court of Appeal (Jamaica)
• Date: 01 January 1952

Court of Appeal of Jamaica

(Smith, Edun and Graham-Perkins, JJ.A.)

IN THE MATTER OF McDONALD

R.N.A. Henriques for the appellant;

G.E. Waddington, Q.C., Attorney General, and S. Panton as amici curiae.

Legislation construed:

Caymanian Protection Law, 1971 (Law 23 of 1971), s.2:

In this Law, unless the context otherwise requires-

. . .

domicil and its derivatives has [sic] the meaning ordinarily applied to that expression at Common Law.

s.15(b): The relevant terms of this sub-section are set out at page 146, lines 38.

s.16(1): The relevant terms of this sub-section are set out at page 146, lines 1016.

Immigration Restriction (British Subjects) Law (Laws of the Cayman Islands, 1963, cap. 67), s.2(1):

In this Law-

domicile means the place in which a person has his present home or in which he resides or to which he returns as his place of present permanent abode and not for a mere special or temporary purpose; and a British subject shall not be deemed to have a domicile within the Islands for the purposes of this Law unless he has resided therein for at least two years otherwise than under terms of conditional or temporary residence permitted by this Law or any other law in force . . . .

Judicature (Appellate Jurisdiction) Law (Laws of the Cayman Islands, 1963, cap. 73), s.8:

Subject to the provisions of this Law and to the provisions of the Judicature (Administration of Justice) Law, regulating appeals from the Grand Court in civil proceedings, and to rules made under that Law, an appeal shall lie to the Court of Appeal from any final judgment or decision of the Grand Court . . . .

Caymanian Protection-Caymanian status-declaration of domicile-for declaration by court to be binding and not challengeable on appeal by Caymanian Protection Law, 1971, s.16(1), must be made formally on basis of evidence directed towards issue-insufficient merely to reach decisions on petition

The appellant applied for a declaration that he was domiciled in the Cayman Islands when the Caymanian Protection Law, 1971 came into force.

The appellant sought, by petition to the Grand Court under the Caymanian Protection Law, 1971, s.16(1), a declaration that he was domiciled in the Islands at the time of the coming into effect of that Law; contending that the applicable meaning of the word domicile was to be found in s.2 of the same Law. The court accepted the contention of the Attorney General that the appellant would have to

establish that he was domiciled in the Cayman Islands within the meaning of the word as defined by the Immigration Restriction (British Subjects) Law (cap. 67), the Law which preceded the Caymanian Protection Law, 1971. On this basis and without any evidence being adduced as to the requirements of the earlier Law, his petition was dismissed. The reasons for the dismissal and the conclusion of the case-the petition is dismissed-were given in a part of the record which was headed Declaration. The record further stated that the appellants petition shows that he arrived in the Cayman Islands on or before the month of October 1960 but his residence could have been conditional or temporary. There was no formal pronouncement of a declaration on the appellants domiciliary status.

On the appellants appeal against the dismissal of his petition, the Attorney General as amicus curiae raised the preliminary objection that by the Caymanian Protection Law, 1971, s.16(1), no appeal could lie against the decision of the Grand Court because (a) a decision was the same as a declaration and therefore any decision could not be challenged; (b) although no order had been made which expressed itself as a declaration, it was clear from the record that the courts dismissal of the petition was a clear finding that the appellant was not domiciled in the Islands and it would be a mere formality to have an...