Smith v McField

• Jurisdiction: Jamaica
• Judge: (Henriques, P., Eccleston and Luckhoo, JJ.A.)
• Judgment Date: 25 June 1968
• Court: Court of Appeal (Jamaica)
• Date: 25 June 1968

Court of Appeal of Jamaica

(Henriques, P., Eccleston and Luckhoo, JJ.A.)

SMITH

and

McFIELD

L. Barrett for the applicant;

R.C. Rattray for the respondent.

Legislation construed:

Jamaica (Procedure in Appeals to Privy Council) Order in Council 1962 (s.1. 1962/1650), s.4: The relevant terms of this section are set out at page 110, line 27 page 111, line 6.

s.5: The relevant terms of this section are set out at page 111, lines 822.

Judicature (Appellate Jurisdiction) Law, 1962 (Jamaica, No. 15 of 1962), s.9:

Subject to the provisions of this Law and to rules of court, the Court shall have jurisdiction to hear and determine appeals from any judgment or order of the Supreme Court in all civil proceedings, and for all purposes of and incidental to the hearing and determination of any appeal, and the amendment, execution and enforcement of any judgment or order made thereon, the Court shall subject as aforesaid have alt the power, authority and jurisdiction of the former Supreme Court . . . .

Civil Procedure-appeals-leave to appeal-security for appeal-no extension of 90-day period for lodging security prescribed by Jamaica (Procedure in Appeals to Privy Council) Order in Council 1962, s.4-not affected by general discretion conferred on single judge by s.5 which is only applicable once appeal pending-appeal not pending until security lodged

The applicant sought the further extension of time for complying with the conditions attaching to leave to appeal to the Privy Council.

The applicant was granted leave to appeal on condition that he furnished the specified security within 90 days of the hearing of his application as stipulated in s.4(a) of the Jamaica (Procedure in Appeals to Privy Council) Order in Council 1962. He failed to do so and subsequently successfully applied for an extension of time in which to fulfil the condition. On the settlement of the record for the appeal, the respondent reserved the right to take objection in limine at the hearing of the application for final leave to appeal.

The respondent submitted that under s.4(a) the court had no jurisdiction to grant an extension of time for leave to appeal beyond the 90 days specified.

The applicant submitted that s.4 did not fix once and for all the conditions which might be imposed by the court since s.5(b) conferred a general discretion by which the court could extend the period of time fixed under s.4(a) even subsequent to its expiry.

Held, dismissing the application:

There were two distinct stages in the process of granting an application for leave to appeal to the Privy Council: the first was the grant of conditional leave and the second, the grant of final leave to appeal. The provisions of the Jamaica (Procedure in Appeals to Privy Council) Order in Council 1962, s.4 solely concerned the first stage, and it was not until those conditions had been fulfilled that an appeal came into being or could be pending. Only when the second stage of the application had been reached could the court (or a single judge of the court) exercise the general discretion given by s.5 to make such orders as it considered just in respect of any appeal pending before Her Majesty. This discretion could not...