Stewart Brown Investments Ltd v National Export-Import Bank of Jamaica Ltd (T/A) as Exim Bank Jamaica)
| Jurisdiction | Jamaica |
| Judge | Straw JA,Edwards JA,G Fraser JA |
| Judgment Date | 04 March 2022 |
| Neutral Citation | JM 2022 CA 29 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CIVIL APPEAL NO COA2020CV000096 |
[2022] JMCA App 8
THE HON Miss Justice Straw JA
THE HON Miss Justice Edwards JA
THE HON Mrs Justice G Fraser JA (AG)
SUPREME COURT CIVIL APPEAL NO COA2020CV000096
MOTION NO COA2021MT00021
IN THE COURT OF APPEAL
Conrad E George and Andre K Sheckleford instructed by Hart Muirhead Fatta for the applicant
Ms Kashina Moore instructed by Nigel Jones & Co for the respondent
This is an application for conditional leave to appeal to Her Majesty in Council (‘the Privy Council’) from a decision of this court given on 24 September 2021 and reported at [2021] JMCA Civ 40. The applicant, Stewart Brown Investments Limited (‘SBIL’) invoked section 110(2)(a) of the Constitution of Jamaica (‘the Constitution’), which provides that an appeal shall lie to the Privy Council from decisions of the Court of Appeal in any civil proceedings, with the leave of the Court of Appeal, “where in the opinion of the [court] the question involved in the appeal is one that, by reason of its great general or public importance or otherwise, ought to be submitted to Her Majesty in Council …”. The sole ground on which SBIL relied is that its proposed questions are of great general or public importance.
In opposing SBIL's application, the respondent (‘EXIM’) contended that the proposed appeal involves no question of either great general or public importance and accordingly, the application ought to be refused.
Therefore, the single issue which arose on this application was whether the criterion of “great general or public importance or otherwise” has been made out in this case. For the reasons which will follow, I am of the considered view that the questions posed by SBIL are not of general public importance, and more specifically, the questions did not meet the pre-requite that any such question must arise from the decision of this court, and must be a question in which the answer is determinative of the appeal. In the premise, I propose that the application be dismissed with costs to EXIM.
The decision of this court, from which conditional leave is being sought, was in respect of EXIM's appeal against the order of a judge of the Supreme Court, that it was in contempt of court for deliberately disobeying an order made by a single judge of this court, which is contained in the judgment delivered on 23 June 2020 (reported at [2020] JMCA App 30). EXIM's defence to the contempt proceedings was that its actions resulted from the directions by the single judge of this court contained in a notification delivered on 12 October 2020, which sought to clarify that judge's earlier order.
The long and winding history of the proceedings was concisely summarised by Brooks P at paragraphs [3] to [12] of the substantive appeal. There has been no dispute of the learned president's recapitulation, and, as such, I will adopt his summary, which was as follows:
“ Background
[3] The genesis of the litigation is SBIL's attempt to prevent the Bank from taking property (realty and personalty) that SBIL had pledged to the Bank as security for a loan. The Bank claimed that SBIL was in arrears in its repayment of the loan. It threatened to exercise its powers of sale contained in a mortgage of the realty, and to take equipment, which was the subject of the bills of sale. SBIL asserted that the Bank's proposed action was in breach of a settlement agreement between the parties. The Bank countered that SBIL had not satisfied the pre-conditions for that agreement.
[4] SBIL's application for an injunction, pending the trial of its claim, was granted by Batts J in the Supreme Court on 20 December 2019. Batts J's orders, however, also had conditions. The condition for restraining the Bank from action in respect of the bills of sale on the equipment was that SBIL should pay $3,500,000.00 monthly on the 30th day of each month commencing on 30 December 2019. The condition (‘the Marbella condition’) for the restraint order in respect of the realty was that SBIL should pay into court a sum in excess of $170,000,000.00.
[5] SBIL was dissatisfied with those conditions. It initially succeeded in having Batts J grant a variation of the condition concerning the injunction in respect of the personalty. SBIL later applied for a variation of the Marbella condition. Batts J refused that application on 21 May 2020.
[6] On 27 May 2020, SBIL filed an appeal from that refusal. The grounds of appeal were restricted to the issue of the Marbella condition, but one of the orders sought on appeal was, ostensibly, not restricted to the injunction in respect of the realty. SBIL sought ‘an interim injunction restraining the [Bank] from enforcing any security with respect to the Loan Facility until the determination of the proceedings in the court below’ (emphasis supplied [as in original]). SBIL also applied to a single judge of this court to grant an injunction pending the hearing of the appeal. Its application was also, ostensibly, not restricted to the realty.
[7] On 23 June 2020, Phillips JA, after hearing submissions from both sides, granted an injunction in terms that were very similar to those contained in SBIL's application. The injunction restrained the Bank ‘from taking any steps pursuant to its purported calling of the loan and/or exercising its power of sale as mortgagee until the determination of the appeal…’ (emphasis supplied [as in original]). The formal order (‘the first order’) was perfected by the court's registry.
[8] The Bank, by a formal application for court orders, sought clarification of the first order. It applied for an adjustment of the order to make it clear that the first order only applied to the Bank's exercise of its power of sale contained in the mortgage. In other words, that the first order did not prevent the Bank from collecting on the bills of sale, if it wished to do so. In response to that application, the registrar of this court issued a notice (‘the notification’) to the parties that Phillips JA had, on 28 July 2020, considered the Bank's application and had directed that the term, ‘calling of the loan’, was not applicable to the ‘monthly obligation due from [SBIL] in the sum of J$3.5 million’. The notification went on to state:
‘For the avoidance of doubt, the restraint of the calling of the loan and taking steps to exercise the powers of sale of the mortgage did not restrain payment of the monthly sum due in the amount of J$3.5 million, as to condition of payment, or nonpayment of the J$3.5 million, and the consequences thereof not having being [sic] appealed, was not argued before me.’ (Emphasis supplied [as in original])
[9] The next significant event, for these purposes, was that, according to SBIL, on 26 August 2020, a representative of the Bank, along with a bailiff and police officers forcibly entered SBIL's property, drove out one of its trucks and disabled another. The Bank was acting on the advice of its attorneys-at-law that the Notification clarified that the first order did not prevent the enforcement of the bills of sale. The Bank took similar action on 8 September 2020, taking other trucks and equipment.
[10] On 2 September 2020, SBIL applied to the Supreme Court to have the Bank, and the various parties involved in the incursion of SBIL's property, committed for contempt of court.
[11] Before SBIL's application was heard, the registry of this court, on 10 September 2020, issued a formal order by Phillips JA (‘the second order’), in terms very similar to the notification. On 16 October 2020, the Full Court made an order (‘the Full Court's order’) varying the first order, by restricting the injunction to the exercise of the power of sale of the realty.
[12] The first order, the notification, the second order and the Full Court's order were all before the learned judge when he heard SBIL's application, and made the order that the Bank now seeks to have set aside.”
Further, Brooks P summarised the decision of the learned judge of the Supreme Court and identified the issues on appeal thus:
“ The decision by the learned judge
[13] The learned judge used a structured approach to SBIL's committal application. He found that:
a. Phillips JA had the authority to hear applications that were incidental to SBIL's appeal (see paragraph [26] of the learned judge's judgment);
b. Phillips JA, therefore had the jurisdiction to grant an injunction binding the Bank in relation to its dispute with SBIL;
c. Phillips JA could properly have ordered an injunction ‘in respect of [the Bank's] enforcement against the equipment, notwithstanding the fact that that element of the injunction as granted by Batts J was not the subject of an appeal’ (see paragraph [27] of the learned judge's judgment);
d. the first order ‘is clear on its face in restricting…the enforcement against realty and personalty’ (see paragraph [44] of the learned judge's judgment);
e. orders of the court are to be obeyed until they are set aside and the first order was not set aside up to the time that the Bank entered SBIL's property and interfered with the equipment;
f. the notification issued by the registry of the Court of Appeal did ‘not have the legal effect of amending or modifying the clear terms of the [first order]’ (see paragraph [47] of the learned judge's judgment);
g. disobedience of orders of the court should be treated as strict liability offences and thus ‘the motive for disobedience is irrelevant for the purposes of establishing a case of contempt’ (see paragraph [59] of the learned judge's judgment); and
h. the Bank's actions constituted a contempt of court and deserved a punitive response to demonstrate that orders of the court are to be obeyed.
[14] The learned judge ordered as...
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