William Clarke v Bank of Nova Scotia Jamaica Ltd

• Jurisdiction: Jamaica
• Judge: Harris JA,Dukharan JA,Phillips JA,Mcintosh JA
• Judgment Date: 26 April 2013
• Neutral Citation: JM 2013 CA 47
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CIVIL APPEAL NO 16/2012 APPLICATION NO 58/2012
• Date: 26 April 2013

Between

William Clarke

Applicant

and

The Bank of Nova Scotia Jamaica Limited

Respondent

[2013] JMCA App 9

Before:

The Hon Mrs Justice Harris JA

The Hon Mr Justice Morrison JA

The Hon Mr Justice Dukharan JA

The Hon Miss Justice Phillips JA

The Hon Mrs Justice Mcintosh JA

SUPREME COURT CIVIL APPEAL NO 16/2012

APPLICATION NO 58/2012

JAMAICA

IN THE COURT OF APPEAL

CIVIL PROCEDURE - Trusts - Monies held in trust - Order for payment - Damages for breach of contract - Whether court was without jurisdiction to hear the matter - Whether claim form was to be struck out - Stay of proceedings

Mrs M Georgia Gibson-Henlin , Marc Jones and Kamau Ruddock instructed by Henlin Gibson Henlin for the applicant

Michael Hylton QC and Sundiata Gibbs instructed by Michael Hylton & Associates for the respondent

Mrs Nicole Foster-Pusey , Solicitor General, Miss Carlene Larmond and Miss Lorraine Patterson instructed by the Director of State Proceedings for the Attorney General

Harris JA

1 The applicant was a former president and chief executive officer of the respondent. On 19 October 2011, he brought a claim against the respondent seeking an order for the payment of £41,181.06 as monies held in the respondent bank in trust for him, or alternatively, damages for breach of contract. On 17 November 2011 the respondent filed a notice of application for court orders seeking a declaratory order that the court was without jurisdiction to hear the claim and that the claim form be struck out, or alternatively, that the proceedings should be stayed. On 27 January 2012 the claim was struck out by Sinclair-Haynes J for want of jurisdiction.

2 The applicant's dissatisfaction with Sinclair-Haynes J's ruling led to his filing a notice of appeal to which the respondent filed a counter notice of appeal. These were considered by Brooks JA, who, on 13 March 2012 made the following orders:

‘(1) The order of Sinclair-Haynes J, made on 27 January 2012 is set aside;

(2) Claim No 201 CD 00075 is hereby stayed pending the parties proceeding to arbitration pursuant to a settlement agreement made between them on 7 June 2011 and until further order of the court;

(3) The costs of the procedural appeal and the costs of the application in the Supreme Court are to be borne by the appellant. Such costs are to be taxed if not agreed.’

3 On 20 March 2012, the applicant, by way of an application for court orders, sought an order to discharge or vary the orders of Brooks JA. On 12 June 2012, the application came on for hearing, at which time the respondent made a preliminary point challenging the court's jurisdiction to hear the matter on the ground that the court was functus officio and an appeal from Brooks JA's orders would lie to the Privy Council. This objection was upheld by the court. On the following day, the applicant's counsel wrote to the court seeking to have the matter revisited. Both parties appeared before the court on 14 June 2012 and on the court's invitation, made submissions, following which, the court reversed its decision and ruled that the application should be heard by the full court of five judges. Mr Hylton QC, by a letter of 18 June 2012, informed the court that in order to avoid costs and delay in proceeding with the hearing of the application to discharge or vary the learned judge's orders, he would not be pursuing the preliminary objection. Despite this, it was the opinion of the court that the objection raised was an extremely important point of law which ought to be considered and determined.

4 Orders on a case management conference were subsequently made, in which, among other things, the Attorney General was requested to intervene and make submissions on the question of the constitutionality of the hearing and determination of procedural appeals by a single judge.

5 Mrs Gibson-Henlin's submissions were advanced on two bases, namely: the unconstitutionality of the procedure laid down in rule 2.4 of the Court of Appeal Rules (CAR) giving jurisdiction to a single judge in the hearing and determination of procedural appeals as well as the creation of the rule in contravention of statutory authority. She argued that the provisions of the CAR, so far as they confer jurisdiction on a single judge to hear and determine a procedural appeal, are void and unconstitutional to the extent that the Rules Committee (the Committee), in making the rules, acted ultra vires the powers bestowed upon it by the Judicature (Rules of Court) Act and the Constitution.

6 It was further submitted by her that procedural appeals do not proceed to the court for determination unless the judge so directs, and by this, jurisdiction is effectively assigned to the judge to dispose of an appeal, or to determine whether an appeal should be heard by the court. This procedure, she argued, is inconsistent with the jurisdiction conferred on the court by the Judicature (Appellate Jurisdiction) Act which creates a distinction between the court and a judge.

7 Jurisdiction is entrenched in the Constitution and the provisions as to any alterations to the Constitution must be followed, she argued. In support of this submission, she cited the cases of Hinds and Others v R [1976] 1 All ER 353 and Independent Jamaica Council for Human Rights (1998) Limited and Others v Hon Syringa Marshall Burnett, Privy Council Appeal No 41/2004, delivered on 3 February 2005.

8 Section 5 of the Judicature (Appellate Jurisdiction) Act, she submitted, refers to the composition of the court as being not less than three but it makes no reference to a single judge, and therefore it would be incorrect to contend that a single judge constitutes the court. As a consequence, she submitted, an appeal cannot be properly heard by a single judge.

9 Counsel further submitted that section 5 of the Judicature (Appellate Jurisdiction) Act empowers the court to sit in more than one division and therefore the jurisdiction to hear appeals, is vested in the Court of Appeal and not a judge. It follows that the Committee only had the authority to regulate the existing jurisdiction of the Court of Appeal by making such rules as permitted by the Judicature (Rule of Court) Act, she submitted.

10 Acknowledging that section 10 of the Judicature (Appellate Jurisdiction) Act provides that, in civil actions, jurisdiction is conferred on the court subject to the rules of court, she argued that a rule of court could not be employed to alter or create jurisdiction, it being procedural in nature. Citing a dictum of Lord Diplock in the case of Hinds and Others v R in support of this submission, she went on to argue that the impugned rules of court are a threat to the fundamental rights entrenched in the Constitution which protect litigants.

11 It was her further submission that, in Part 2 of Chapter VII of the Constitution, the references to the Court of Appeal and the judges of the court, show that they are separate and distinct.

12 The case of Hinds and Others v R, it was submitted, demonstrates that section 103 of the Constitution provides the Court of Appeal with jurisdiction and powers as may be conferred on it by the Constitution ‘or any other law’. The phrase ‘any other law’ should be read against the ‘supreme law clause of the Constitution’ to mean that any other law which is inconsistent with the Constitution is void.

13 Section 109 of the Constitution is entrenched, she argued, and it makes a distinction between the composition of the court for interlocutory matters and other matters, which undoubtedly shows that it was the intention of the drafters of the Constitution that appeals should be heard by the court as, under the Constitution, a single judge is only empowered to hear interlocutory matters. Appeals must be heard by the Court of Appeal which, as properly constituted, is composed of an uneven number of at least three judges and therefore a single judge cannot hear and determine an appeal, she submitted.

14 It was also submitted that rule 2.4 does not only deprive the court of a fundamental part of its jurisdiction but also deprives a litigant of the right of appeal to Her Majesty in Council. The Committee, she argued, having made rules to confer jurisdiction on a single judge to hear appeals, acted outside the scope of its authority and such conferment on a single judge to hear appeals, renders rule 2.4 unconstitutional, it being inconsistent with sections 109 and 110 of the Constitution. In the circumstances, she submitted, the order of Brooks JA lacks jurisdiction. Accordingly, the preliminary objection should fail.

15 In her written submissions, the Solicitor General made reference to certain sections of the Constitution, several statutory provisions and provisions of the CAR, namely: sections 2, 49, 103(1) and 109 of the Constitution; the Judicature (Rules of Court Act) 1961; sections 1, 9, 10, 11, 30 and 32(1) of the Judicature (Appellate Jurisdiction) Act, and rules 1.1(8), 2.4(3), and 2.11 of the Court of Appeal Rules. She submitted that, as contemplated by the Constitution, the matters described in section 32(1) of the Judicature (Appellate Jurisdiction) Act, can be regarded as falling within the purview of interlocutory matters: and can be dealt with by a single judge In her written submission it was further submitted that the scheme outlined in that section, is analogous to the contents of the now repealed rule 33 of the 1962 Court of Appeal Rules and rule 2.11(2) of the CAR. These are concerned with a single judge's powers in procedural applications and such applications are not determinative of the substantive appeal.

16 It was her submission that section 103 of the Constitution is entrenched but section 109 is not, as it can be altered by an amendment. The impact of section 2 of the Constitution is that, even if there is a provision for another law to confer...