Wilbert Christopher v Attorney General of Jamaica

• Jurisdiction: Jamaica
• Judge: FORTE, P. , LANGRIN, J.A.: , SMITH, J.A. (Ag.)
• Judgment Date: 09 November 2001
• Neutral Citation: JM 2001 CA 64
• Judgment citation (vLex): [2001] 11 JJC 0902
• Court: Court of Appeal (Jamaica)
• Date: 09 November 2001

IN THE COURT OF APPEAL

RESIDENT MAGISTRATE'S CIVIL APPEAL

BEFORE:

THE HON. MR. JUSTICE FORTE, P THE HON. MR. JUSTICE LANGRIN, J.A THE HON. MR. JUSTICE SMITH, J.A. (Ag.)

BETWEEN

WILBERT CHRISTOPHER

APPELLANT

AND

ATTORNEY GENERAL OF JAMAICA

RESPONDENT

Dennis Goffe, Q.C.

Ms. Cheryl Lewis Ms. Monique Harrison

LIMITATION OF ACTIONS - Striking out claim - Whether cause of action statute-barred

FORTE, P.

1 Having read in draft the judgment of Langrin, J.A., I agree with the reasoning and conclusion and have nothing further to add.

LANGRIN, J.A.:

2 This is an application for leave to appeal out of time from an order of Her Honour Ms. Ingrid Mangatal striking out the claim on the basis that the causes of action were statute barred. At the conclusion of the hearing we refused the application but promised to put our reasons in writing at a later date. This we now do.

3 The appellant was a member of the Island Special Constabulary Force. He resigned from the Force on or about October, 1993. On March 1994, he collected from the Ministry of National Security and Justice the sum of $37,427.37. This sum represented money due to him by the Ministry in relation to his salary, allowances and pension for the period between October 1, 1993 and March 29, 1994. Mr. Christopher was absent from duty without leave for 100 days, from September 1, 1992 to December 1992. This absence continued from December 1992 until October 31, 1993. On the 29 ^th June, 1999 he filed plaints Nos. 4162 and 4164 at the Sutton Street Resident Magistrate's Court claiming the payment of salary for the period of September 8, 1992 to October 30, 1993. Mr. Christopher sought to amend his particulars of claim in respect of both plaints. However, on February 20, 2001, counsel for the Attorney General made an application that the proposed amendments be denied and that the matters be struck out on the basis that the cause of action was statute barred. The learned Resident Magistrate granted the applications made by counsel for the Attorney General. Mr. Christopher gave a verbal notice of appeal on that very day and on March 13, 2001 a written Notice of Appeal was lodged at the Sutton Street Resident Magistrate's Court.

4 Several issues arise on the appeal against the decision made by the trial judge to strike out the plaints. The appellant had failed to comply with the requirements of s.256 of the Judicature (Resident Magistrates) Act ("JRMA"). This provision requires an appellant to deposit $600 for security for the due prosecution of the appeal at the time of pronouncing judgment when the appeal is taken and minuted or if not so taken then within 14 days after the date of the judgment when a written notice of appeal is lodged. A further $6000 is to be paid as security for costs within 14 days of the taking or lodging of the appeal. The question to be determined is whether non-compliance with the section vitiates or terminates the appeal process. In addition whether the Court of Appeal can grant an application by an appellant for an extension of time to comply with the section. The appellant appeals on the ground that the learned trial judge erred when she accepted the defendant's submission that the plaintiff's claim was statute barred by virtue of section 2(l)(a) of the Public Authorities Protection Act ("PAPA").

5 The appellant's submission, is that the requirements stipulated in s.265 of the JRMA is a mere formality and not a condition precedent. Therefore, the court has the power to reset the timetable regulating the conduct of appeal proceedings so as to enable that requirement to be complied with. This is afforded by s. 12 of the Judicature (Appellate Jurisdiction) Act.

6 This section provides:

"(2) Notwithstanding anything to the contrary the time within which -

• (a) notice of appeal may be given or served;

• (b) security for costs of the appeal and for the due and faithful performance of the judgment and order of the Court of Appeal may be given;

• (c) grounds of appeal may be filed or served, in relation to an appeal under this section, may upon application made in such manner as may be prescribed by rules of court, be extended by the court at any time".

7 The section clearly allows for the extension of...