(1972) 19 WIR 1
HIGH COURT OF BARBADOS
29 MARCH 1972
Practice – Amendment – Notice of motion before Supreme Court – Jurisdiction in High Court – Whether application to amend should be allowed – Constitution of Barbados scheduled to Barbados Independence Order 1966, SI 1966 No 1455 [UK], s 80 (1) – Supreme Court of Judicature Act 1956 No 56 [B], s 11 (2) (3), s 12 (2), Sched 1 – Supreme Court of Judicature Act 1966 No 39 [B], s 3 – Solicitors Act 1896 No 6 [B] s 31.
Solicitor – Motion to strike off – Whether circumstances disclosed improper conduct.
The Attorney-General sought to move for an order that John Philip Browne be removed from the Roll of Solicitors by reason of his misconduct. An objection was taken in limine to the form of the notice of motion on the ground that it referred to the motion being in the Supreme Court of Judicature. It was submitted that the Supreme Court comprised the Court of Appeal and the High Court, that the proper court to be moved was the High Court, and that an order of the Supreme Court made in terms of the motion would be a nullity. The Attorney-General conceded that the Supreme Court was not the proper authority to be moved and sought an amendment to delete the reference to the Supreme Court. It was contended that so to do would be to amend in order to give the court jurisdiction.
Held: that taking the notice as a whole there seemed to be no doubt whatever that it was filed in the High Court to be dealt with in the High Court. Consequently, there was no substance in the objection and an amendment would be allowed.
Application to amend allowed.
With regard to the substantive matter, the complaints against the respondent were of improper conduct in:
(a) failing to account for and repay to his client, Vernon Sylvester Payne, the sum of $2,500.00 received by the firm of Messrs. Browne, Husbands & Co towards the purchase of land belonging to Ruby Martin; and
(b) failing to account for and pay over to his client, Herman Wesley Daniel, executor of the will of Edward Adolphus Daniel, the sum of $15,772.80, the balance due to the estate from monies received by the firm of Messrs. Browne, Husbands & Co.
It was submitted on behalf of the respondent that before an order cold be made to strike him off the evidence must show clearly that there had been a fraudulent misappropriation of money on his part, or some fraudulent conduct by him.
It was submitted by the Attorney-General that each case must be decided on its own particular facts and that in the instant case the affidavits contained material on which the court could hold that there was misappropriation: payments to the respondent, requests for the return of the money paid, failure to account on the part of the respondent and failure to repay or pay over.
Held: that the respondent was under a duty to pay over to his clients the amounts set out in the notice of motion; further, the uncontroverted facts showed that he had no valid claim to the money. His failure to pay over after numerous requests, his unfulfilled promises to pay, the absence of any explanation, all went to show that the only logical inference to be drawn was that he either used the money or, if he still had it, he refused to pay it over. The respondent’s failure to account and failure to pay over in these circumstances constituted improper conduct on his part and conduct unbefitting a solicitor of the Supreme Court.
Order suspending the respondent from practice for two years.
Cases referred to
Tinkham v Perry  1 All ER 249,  1 KB 547,  1 TLR 91, 95 Sol Jo 107, CA, Digest Cont Vol A, 1077, 7643a
Re Solicitor (1895), 11 TLR 169, 39 Sol Jo 202, DC, 43 Digest (Repl) 439, 4673
Re Sparks (1864), 17 CB NS 727, 144 ER 291, 43 Digest (Repl) 439, 4666
Re Grey  2 QB 440, 61 LJ QB 795, 57 JP 246, 41 WR 3, 8 TLR 694, CA, 43 Digest (Repl) 393, 4206
Bhandari v Advocates Committee , 3 All ER 742,  1 WLR 1442, 100 Sol Jo 836
Motion by the Attorney-General seeking an order for the removal of John Philip Browne from the Roll of Solicitors by reason of his misconduct. Objection was taken in limine to the form of the notice of motion. The report incorporates the ruling of Douglas CJ, on this objection as well as his judgment on the substantive matter. The facts are set out in the judgment.
GC Moe QC Attorney-General as applicant with LI Worrell (instructed by The Crown Solicitor) (for the applicant)
HB St John QC P Williams and R Cheltenham (instructed by WO Haynes) for the respondent
DOUGLAS CJ. Objection has been taken in limine to the form of notice of motion in these proceedings which are laid by the Attorney-General seeking an order for the removal of the respondent from the Roll of Solicitors by reason of his misconduct.
Mr St John objects to the words “Take Notice that the Supreme Court of Judicature will be moved before the Honourable Sir William Randolph Douglas, Chief Justice ...” as they appear in the notice. He contends that since 1966 the Supreme Court of Judicature is comprised of the High Court and the Court of Appeal and that the proper court to be moved for this order is the High Court.
He cites s 80 (1) of the Constitution, which provides:
‘There shall be for Barbados a Supreme Court of Judicature consisting of a High Court and a Court and a Court of Appeal, with such jurisdiction, powers and authority as may be conferred upon those Courts respectively by this Constitution or any other law.’
He draws attention to s 3 of the Supreme Court of Judicature Act 1966 No 39 [B], which enacts:
‘Subject to the provisions of this Act, the jurisdiction, powers and authority of the High Court shall include all the jurisdiction, powers and authority vested in the Supreme Court immediately before 30th November 1966.’
By reference to subsections (2) and (3) of s 11 of the Supreme Court of Judicature Act 1956, No 56 [B], Mr St John submits that jurisdiction in the matter before the court lies in the High Court and that an order of the Supreme Court made in terms of the motion would be a nullity.
The Attorney-General concedes that the Supreme Court is not the proper authority to be moved and seeks to amend the Notice of Motion to read “Take Notice that the Honourable Sir William Randolph Douglas, Chief Justice of Barbados will be moved ...” etc. He cites s 31 of the Solicitors Act 1896, No 6 [B] which reads:
‘So far as they are relevant to the circumstances of this Island, the Chief Justice shall have and exercise all and every the powers possessed by the High Court of Justice or any other court in England for the punishment of solicitors, whether practising or otherwise, who may be guilty of improper conduct.’
He refers me to s 12 (2) of the 1956 Act and its First Schedule which reserved certain functions under the Solicitors Act 1896, No 6 [B], to the Chief Justice and submits that, by implication, the powers set out above in s 31 are also reserved to the Chief Justice, although the functions in s 31 were not specifically reserved by s 12 (2) of the 1956 Act.
As to this latter point, the rule is that words should not be added by implication to the language of a statute unless it is necessary to do so to give the enactment sense and meaning in its context: see judgment of Evershed MR, in Tinkham v Perry ( 1 All ER 249,  1 KB 547,  1 TLR 91, 95 Sol Jo 107, CA, Digest Cont Vol A, 1077, 7643a). I cannot say that in the instant case the context warrants the implication suggested.
As to the powers of the High Court of Justice in England, it must be observed that in the past and now under the provisions of the Solicitors Act 1957 of the United Kingdom, the inherent jurisdiction of the High Court and the Court of Appeal in respect of solicitors is expressly preserved by s 50 (2) of that Act.
In regard to the Attorney-General’s application to amend the Notice as set out above, Mr St John contends that to do so would be to amend in order to give the court jurisdiction. Looking at the notice I note it is headed “In the Supreme Court of Judicature”, and beneath these words appear the words “High Court”, and beneath them, “Civil Jurisdiction”. There seems to me to be no doubt whatever as to the division of the Supreme Court of Judicature in which the Notice was filed. It was filed in the High Court, to be dealt with in the High Court. This being so, my view is that Mr St John’s point in regard to jurisdiction is without substance.
To meet the concession made earlier on by the applicant, the Notice of Motion will be amended in the terms asked for by the Attorney-General.
DOUGLAS CJ. In these proceedings, the Attorney-General moves for an order that the respondent, a solicitor, be struck off the Roll and that he no longer practise as a solicitor in this Island or that such other order be made as the court shall think right.
The grounds of the application are:
(i) improper conduct in failing to account for and repay to his client, Vernon Sylvester Payne, the sum of $2,500.00 being monies received by the firm of Messrs Browne, Husbands & Co towards the purchase of land belonging to Ruby Martin; and
(ii) improper conduct in failing to account for and pay over to his client, Herman Wesley Daniel, executor of the will of Edward Adolphus Daniel, the sum of $15,772.80 being balance due to the estate of Edward Adolphus Daniel from monies received by the firm of Messrs Browne Husbands & Co.
The affidavits disclose that the respondent was formerly a partner of the firm of Browne, Husbands & Co. In June 1967 Mr Payne retained the respondent to act for him in the purchase of a parcel of land in Christ Church. In that month, Mr Payne paid over $2,500 to the respondent’s firm on account of the purchase price of the land. The transaction was never completed. There was a prior agreement for the sale of that land to one Leicester Vaughan, who obtained on 22 March 1971 an order for specific performance.
Mr Payne dealt exclusively with the respondent and had no dealings with the other partner, Mr HA Husbands. Both before and after the lawsuit in which the order mentioned above was made, Mr Payne requested repayment of the $2,500 and the respondent according to Mr Payne made promises that he would repay him. The said sum of $2,500 was never repaid and remains due and owing to Mr Payne.
In regard to the second complaint, Mr Daniel deposes that he retained the respondent in 1966 in the matter of the estate of Edward Adolphus Daniel, deceased. The will was admitted to probate in 1969 and Mr Daniel duly qualified as executor. On or about 9 June 1969 the sum of $16,000 was paid to the respondent’s firm by way of balance of purchase money due on the sale of certain property of the estate. After deduction of fees and expenses, the estate was entitled to receive from Browne, Husbands & Co the sum of $15,772.80.
Mr Daniel dealt exclusively with the respondent in this matter. Since June 1969 Mr Daniel on several occasions requested payment and the respondent made promises, but no money was paid over.
In 1970 Mr Daniel, as executor, brought an action against the firm of Browne, Husbands & Co to recover the sum abovementioned and on 6 July 1970 obtained judgment for $15,772.80 and costs $159.24. Neither the respondent nor his partner defended the suit and up to now, the judgment has not been satisfied.
On behalf of the respondent Mr St John submits that before an order can be made to strike off the respondent, the evidence must clearly show that there has been a fraudulent misappropriation of money on his part, or some fraudulent conduct by him. He refers me to Re Solicitor ((1895), 11 TLR 169, 39 Sol Jo 202, DC, 43 Digest (Repl) 439, 4673). In that case a solicitor was retained to recover for a fee of ten shillings the sum of £2.6.8d due on a promissory note. He did so within a week, retained the whole amount for two months, and, notwithstanding numerous applications by his client, paid over sums amounting to £3.16.0d between June 1893 and February 1894. After application to a magistrate and to the Law Society, the solicitor paid over further sums amounting to £4.16.8d, retaining £4.10.0d as costs. The Committee of the Law Society found the solicitor guilty of professional misconduct. Wills J, held that: “the court must have something beyond the mere non-payment to constitute ‘professional misconduct’. There must be something amounting to misrepresentation or deceit, and not merely the fact that the money has not been paid over.”
That case turned on the evidence on which the report of the Committee was based. It came merely, as the judge stated, to the solicitor not paying and making various excuses. But Wills J, made it clear in his judgment that if the Committee had found as a fact that the solicitor would not have paid the money but for the application to the magistrate, that would have been different.
In Re Sparks ((1864), 17 CB NS 727, 144 ER 291, 43 Digest (Repl) 439, 4666) the solicitor was retained to recover a debt of £65.2.0d in May 1862. In the same month he received two bills of exchange for £51.9.6d
which he discounted with his bankers, applying the proceeds to his own use. He had to repay the amount to his bankers on the bills being dishonoured. In August 1862 he received from the parties to the bills the amount thereof in cash and applied it to his own use. In the meantime he gave evasive answers to his client about the business and never told his client that he had received the sum represented by the bills. The solicitor filed a petition in bankruptcy. In showing cause why he should not be struck off the Roll of Solicitors, it was pointed out that his bankruptcy was attributable to a severe attack of illness which for some time after Christmas 1862 incapacitated him for attending to business and affidavits were filed by five respectable persons who deposed that they had employed the solicitor for periods of from ten to twenty years and that he had transacted their business to their entire satisfaction. Erle CJ, said that although the case was one of grave suspicion, he could not find any specific misappropriation of the client’s money such as to justify the “extreme course” of removing the solicitor from the roll.
The Attorney-General contends, on the other hand, that each case must be decided on its own particular facts. He draws attention, for example, to the particular circumstances in which the court in Re Sparks ((1864), 17 CB NS 727, 144 ER 291, 43 Digest (Repl) 439, 4666), above, came to the conclusion that the order to strike off should not be made. He submits that in the instant case, the affidavits contain material on which the court can hold there was misappropriation. The affidavits establish that there were payments to the respondent, requests for the return of the money paid, a failure to account on the part of the respondent and a failure to repay or pay over.
I think the principle is that laid down by Lord Esher MR, in Re Grey ( 2 QB 440, 61 LJ QB 795, 57 JP 246, 41 WR 3, 8 TLR 694, CA, 43 Digest (Repl) 393, 4206) where he said ( 2 QB at p 443):
‘... the Court has a punitive and disciplinary jurisdiction over solicitors, as being officers of the Court, which is exercised, not for the purpose of enforcing legal rights, but for the purpose of enforcing honourable conduct on the part of the Court’s own officers. That power of the Court is quite distinct from any legal rights or remedies of the parties, and cannot, therefore, be affected by anything which affects the strict legal rights of the parties.. So, if a solicitor obtains money by process of law for his client, quite irrespective of any legal liability which may be enforced against him by the client, he is bound, in performance of his duty as a solicitor, to hand it over to the client, unless he has a valid claim against it. If he spends it, or if, still having it, he refuses to hand it over, he commits an offence as an officer of the Court, which offence has nothing to do with any legal right or remedy of the client.’
The Master of the Roll went on to say:
‘But the two things, the breach by the solicitor of his duty as such, and the legal right of the client, are quite separate and distinct. The client had a legal right to the money, but the Court has a right to see that its own officer does not act contrary to his duty.’
Mr St John contends that the affidavits do not allege that the particular money was used by the respondent. They do not. Indeed it is a matter for complaint that the respondent gave no explanation to his clients about what had become of their money. In argument Mr St John suggested that the affidavits support an inference other than that the respondent had misappropriated his clients’ money. It is to be recalled that the only evidence before me is that contained in the affidavits of Mr Payne and Mr Daniel. The evidence is that the respondent alone dealt with their business and there is no evidence whatever that Mr H A Husbands, the respondent’s partner at the time, was in any way involved in the failure to pay over the amounts belonging to Mr Payne and Mr Daniel.
I hold that the respondent was under a duty to pay over to his clients the amounts set out in the notice of motion. Further, the uncontroverted facts contained in the affidavits show that he had no valid claim to the money. His failure to pay over after numerous requests, his unfulfilled promises to pay, the absence of any explanation, either to his clients or in this court, all go to show that the only logical inference to be drawn in this case is that the respondent either used the money himself, or if he still has it, he has refused to pay it over.
There is no doubt in my mind as to the standard of proof required in this case: it must be proved to the high standard required by the gravity of the charges; see Bhandari v Advocates Committee (, 3 All ER 742,  1 WLR 1442, 100 Sol Jo 836). Nor am I in any doubt that the respondent’s failure to account and failure to pay over in the circumstances described above constitute improper conduct on his part and conduct unbefitting a solicitor of the Supreme Court. The order of the court will be that the respondent, John Philip Browne, will be suspended from practice for the space of two years and that he must pay the costs of these proceedings.
Order suspending respondent from practice for two years.
(1972) 19 WIR 6
R v Belgrave (No 1)
COURT OF APPEAL OF BARBADOS
HANSCHELL CJ AG, WARD AND WILLIAMS JJ
5 MAY 1972
Criminal Law – Stay of indictment – Discretion of trial judge – Application to stay refused – Whether miscarriage of justice resulted – Indictments Act 1916, No 4 [B].Criminal Law – Evidence – Wrongful admission – Circumstances in which conviction would be set aside.
Criminal Law – Evidence – Second-hand account of entry in cash book obtained in cross-examination – Cash book not produced – Evidence dealt with in summingup – Effect.
The appellant was arraigned at the July Assizes in 1971 on an indictment containing three counts. An application by his counsel to have this indictment stayed was refused and he was convicted of the offences of forgery and larceny charged in the first and second counts. He was acquitted of the larceny charged in the third count. He was sentenced to three years imprisonment on each of the counts on which he was convicted, the sentences to run concurrently.
The appellant had in the January Assizes of the same year been tried on two indictments. One indictment contained three counts charging forgery, uttering and larceny. The second contained two counts one for uttering and the other for obtaining a cheque on a forged instrument. He was acquitted of all these charges.
The appellant a public officer employed in the Treasury, had been arrested on 5 December 1970, and a briefcase which he had with his was searched. A variety of articles was found inside including a sum of about $2,500 in cash and some Treasury documents about which investigations were carried out. Each of the three indictments on which the appellant was arraigned related to a different Treasury document found in the appellant’s briefcase.
It was submitted, inter alia, on the hearing of his appeal against his convictions:
(i) that the learned trial judge erred in not ordering a stay of the indictment;
(ii) that the learned trial judge erred in admitting as evidence the money found in the briefcase and the briefcase with its unspecified remaining contents (objection had been taken to the admission of these exhibits on the grounds of irrelevancy and prejudice); and
(iii) that evidence of the contents of a cash book given by a witness for the prosecution was mere hearsay, the book not having been produced; and the learned trial judge was in error when he referred to this evidence in the course of his summing-up and treated it as evidence which the jury could properly consider in the determination of the appellant’s guilt or innocence.
Held: (i) that the learned trial judge correctly interpreted his function. The question which he had to determine was whether he would exercise his discretion in order to stay the indictment. He exercised his discretion in a judicial manner and there was material before him on which he could reasonably have exercised it in the way he did. In these circumstances the court could not say that a miscarriage of justice had occurred.
(ii) that though the money and the briefcase with its remaining contents had little or nothing to do with the case and should not have been admitted in evidence, that by itself did not vitiate the convictions and the circumstances as a whole did not support counsel’s submission that the appellant had been gravely prejudiced by the admission of these exhibits.
(iii) that the evidence about which complaint was being made had been brought out by counsel for the appellant in the course of his cross-examination of the witness. Counsel could have taken steps to have the cash book produced in court if he wanted to do so but he did not In the circumstances there was no jusification for upsetting the verdict of the jury.
Cases referred to
Connelly v DPP  2 All ER 401,  AC 1260,  2 WLR 1145, 128 JP 418, 108 Sol Jo 356, 48 Cr App Rep 183, HL, Digest Cont Vol B, 250, 472a
Sambasivam v Public Prosecutor, Federation of Malaya  AC 458, 66 (pt 2) TLR 254, PC, 15 Digest (Repl) 784, 4912
R v Lewis (1909), 78 LJ KB 722, 100 LT 976, 73 JP 346, 25 TLR 582, 22 Cox CC 141, 2 Cr App Rep 180, CCA, 14 Digest (Repl) 346, 3354
Appeal by Lawrence Belgrave against convictions for forgery and larceny and the sentences imposed.
WHA Hanschell QC and JMG Adams for the appellant
CS Husbands QC Director of Public Prosecutions and S Moore for the Crown
WILLIAMS J. The appellant was arraigned at the July Assizes on an indictment containing three counts. He pleaded not guilty to each count. On 15 July he was convicted of the offences of forgery and larceny which were charged in the first and second counts. He was acquitted of the charge of larceny in the third count. He was sentenced to three years’ imprisonment on each of the counts on which he was convicted, the sentences to run concurrently. He seeks to challenge his convictions on a number of grounds which will be considered later.
The circumstances surrounding the case are as follows. The appellant, a public officer employed in the Treasury, was arrested on 5 December 1970 when he was at the Treasury Building and a briefcase which he had with him was searched.
A variety of articles was found inside including a sum of about $2,500 in cash and some Treasury documents about which investigations were carried out. Three separate charges were laid before the magistrate. Depositions were taken on two of them and at the close of the hearing in each case the appellant was committed to stand his trial. Separate indictments were preferred against him at the January Assizes. One indictment No 27 of 1971, contained three counts charging forgery, uttering and larceny. The other indictment, No 25 of 1971, contained two counts: one for uttering and the other for obtaining a cheque on a forged instrument. No application was made on behalf of the appellant with a view to having one trial of the matters alleged against him in the two indictments and he was duly tried on each indictment and acquitted of the charges.
The depositions on the third charge were subsequently completed by the examining magistrate and he was committed for trial. A third indictment, No 45 of 1971, was preferred against the appellant at the July Assizes and it was on the first and second counts of this indictment that he was convicted and sentenced to imprisonment.
His first ground of appeal relates to an application made to the learned trial judge to stay this third indictment. It is submitted that the learned trial judge erred in not staying the indictment and that this court should in the circumstances quash the convictions. The Indictments Act 1916, No 4 [B], makes provision for the joinder in one indictment of charges which are founded on the same facts or form or are a part of a series of offences of the same or a similar character. And the proper course is to give effect to this provision in the absence of special circumstances. In the matter before us the Crown did not seek to avail itself of this provision.
Counsel for the appellant in arguing this first ground of appeal submitted that the staying of the indictment was not a matter for the discretion of the learned trial judge but that as a matter of law he should have made such an order. According to his submission the gist of the case against the appellant in the instant case was the alleged wrongful possession by the appellant of documents when his bag was searched on the day of his arrest. This issue, it is said, had been decided in indictment No 27 of 1971 when he was acquitted of the larceny of another document which had come out of the same bag. Therefore, the submission went on, the issue cannot be litigated again, and he cited in support Connelly v DPP ( 2 All ER 401,  AC 1260,  2 WLR 1145, 128 JP 418, 108 Sol Jo 356, 48 Cr App Rep 183, HL, Digest Cont Vol B, 250, 472a) and Sambasivam v Public Prosecutor, Federation of Malaya ( AC 458, 66 (pt 2) TLR 254, PC, 15 Digest (Repl) 784, 4912).
It is to be observed that no attempt was made at the trial to plead autrefois acquit to the second count – that he was on this count charged with the larceny of a Government of Barbados voucher but had previously been acquitted of such a charge in January. The Crown did not include in either of these charges of larceny particulars of the document alleged to have been stolen and the period within which the theft was alleged to have been committed in the charge contained in indictment No 27 of 1971 included the period within which it was alleged in the second count of the later indictment that the theft was committed. On the face of it, therefore, and as a matter of form it may have been difficult for the Crown to rebut a plea that he had already been acquitted on the larceny charge.
However, when the substance of the matter is examined, it is clear that indictment No 45 of 1971 relates to matters which are different from those to which indictments Nos 25 and 27 of 1971 related. Indictment No 27 concerned a voucher made out to one Bruno Lamontagne, No 45 concerned one made out to one Darrington James, and No 25 concerned a receipt in favour of yet another person. As indicated earlier, counsel’s submission on the first ground is that the appellant was acquitted of the charge of larceny in the Lamontagne case; the issue in that case was whether or not he was in wrongful possession of the voucher; the
issue was therefore decided in his favour; and consequently the same issue cannot be litigated all over again.
Difficulties of formidable dimensions stand in the way of counsel on this submission. In the first place a copy of the proceedings in the trial of indictment No 27 was never produced and without such a record it is impossible to determine the issues which can be taken to have been decided by the jury’s verdict in that case. Lord Devlin in Connelly v DPP ( 2 All ER 401,  AC 1260,  2 WLR 1145, 128 JP 418, 108 Sol Jo 356, 48 Cr App Rep 183, HL, Digest Cont Vol B, 250, 472a), in dealing with the matter of issue estoppel, referred ( 2 All ER at p 437) to the necessity of analysis in order to apply that doctrine. This court has not been placed in a position to carry out this analysis and it certainly cannot act on a bald assertion by counsel.
But apart from this, another difficulty confronts the appellant on this submission. Indictment No 27 related to a voucher payable to one Bruno Lamontagne, and No 45 to one payable to one Darrington James. The indictments are founded on different incidents, the facts in the two cases are not the same. Even assuming that the issue in the trial of indictment No 27 was as counsel says, can it be said that because the jury found the appellant was in lawful or innocent possession of the voucher made out to Lamontagne that it must logically or reasonably follow that he was also in lawful possession of the one made out to James? I do not think so. The issues appear to me to be different. Counsel in illustration of his argument drew a comparison with a case of corned beef and asked whether the Crown could, instead of charging a theft of the case, charge the theft of individual tins in separate consecutive charges. I do not think that the Crown would ever seek to follow such a course or that a court would permit such a blatant abuse of its process. However, a briefcase with varied contents is in my opinion a different matter and the circumstances attendant on the possession of one item may be quite different from those surrounding the possession of other items.
The question which had to be determined by the learned trial judge in the matter now before us was whether he would exercise his discretion in order to stay the indictment. He heard submissions from both sides and counsel for the Crown advanced reasons why the indictment should be permitted to proceed. Connelly v DPP ( 2 All ER 401,  AC 1260,  2 WLR 1145, 128 JP 418, 108 Sol Jo 356, 48 Cr App Rep 183, HL, Digest Cont Vol B, 250, 472a) was cited to the court and it is to my mind clear from the record that the learned trial judge correctly interpreted his function. He exercised his discretion in a judicial manner and there was material before him on which he could reasonably have exercised it in the way in which he did. A Court of Appeal does not lightly interfere with a discretion judicially exercised. It does not do so even where all the members of the court feel that individually each of them would have exercised the discretion in a different way. In R v Lewis ((1909), 78 LJ KB 722, 100 LT 976, 73 JP 346, 25 TLR 582, 22 Cox CC 141, 2 Cr App Rep 180, CCA, 14 Digest (Repl) 346, 3354), Channell J, made this point when he said (2 Cr App R at p 181) that the learned trial judge in discharging the jury had exercised his discretion in a way different from that in which it had been the practice of the individual members of the court to exercise it. Yet the court would not interfere.
As pointed out above, the facts on which indictment No 45 was based were not the same as those in the previous trials nor were they founded on the same incident. The mere circumstance of the vouchers being found in the same briefcase may mean no more than that the investigations concerning those vouchers might have commenced at that point. According to the Crown considerations of a practical nature led to the charges being presented in the manner in which they were. Investigations led to different Islands and even to the United Kingdom where a police officer went in order to deliver documents to an expert in handwriting. Witnesses had to be brought from other Islands and from the United Kingdom. The learned trial judge who had the conduct of the trial did not think that the trial should be stayed and in the circumstances, I am unable to say that proceeding with the third indictment produced a miscarriage of justice.
Next it was argued that the learned trial judge wrongly admitted evidence which was highly prejudicial to the appellant and was of no probative value. The matter about which complaint is made was some money and other articles which were found in the briefcase when the appellant was arrested. Briefly, this is what happened. Before the jury was empanelled, counsel for the appellant made an application for the release of these items which had been produced before the examining magistrate. This application was opposed by counsel for the Crown who stated that the money was in no way connected with the charge before the court. The learned trial judge did not grant the application but said that he would consider it at the time when the exhibit was tendered. The money (Exhibit G1) and the briefcase with the remainder of its contents (Exhibit G) were subsequently tendered for production. The application for their exclusion was renewed. It was submitted that they were irrelevant to the issues and that any probative value was outweight by the prejudicial effect which would result from their production. These, it was said, were charges founded on fraud and the production of the money could suggest to the jury that it constituted the proceeds of the wrongdoing.
Counsel for the Crown observed that the defence had cross-examined as to the contents of the bag and submitted that the proper place for Exhibit G was in the custody of the court. The learned trial judge then allowed the briefcase with its contents to be put in and subsequently did likewise with respect to the money.
Counsel for the appellant had asked witness Corporal Gordon Maxwell some questions about the contents of the bag but from the record they all seemed to be about what had come out of the bag and not about what was still in the bag. Consequently, I am not persuaded that these exhibits, which really had little or nothing to do with the matter before the court, should have been admitted in evidence. However, the wrongful admission of evidence does not by itself vitiate a conviction. It can do so, but before it can be held to produce the result, the evidence and the way in which it was dealt with by the trial judge must be considered and some estimate made of the effect the irregularity could reasonably have had on the minds of the jury. Here one witness, Mr Vincent Pilgrim, the Deputy Accountant-General, said in answer to counsel for the appellant that he knew nothing about a sum of $2,500 having anything to do with this case and that, as far as he knew, it had no connection. It was never suggested by anyone in the course of the trial that there was any connection and the learned trial judge in his summing-up did not refer to the matter at all. In these circumstances it is difficult to understand counsel’s submission about grave prejudice to the appellant. In my judgment I must consider the matter in the light of its effects on the minds of a jury possessed of a measure of intelligence, not in the setting of its possible effect on a pack of morons.
Next it was submitted that certain evidence was wrongfully excluded from the trial. This ground arises out of the refusal by the learned trial judge to allow counsel for the appellant to elicit from the witnesses for the Crown a statement made by the appellant to the police in connection with one of the other documents and an unsworn statement made by the appellant in one of his previous trials. Counsel, in essence, was complaining that the witnesses were not allowed to repeat before the jury the appellant’s explanation or excuse in relation to another document about which he was previously charged. Counsel’s concern apparently was that he should be able to tell the jury that, in respect of document A, the appellant was charged before another jury, gave a certain explanation and he was acquitted of that charge; therefore, if he is charged in respect of document B and gives the same explanation, his acquittal should follow. This is indeed a novel proposition. It seems to me that if counsel wishes to show that the issue between the parties has already been decided, then he should do so in the proper manner
by an examination of the whole of the previous proceedings to show what issue the jury must be taken to have decided and follow this up by showing that the same issue will arise in the proceedings then engaging the attention of the court. He cannot pick out one part of the trial, an unsworn statement, and seek to deduce therefrom what issues the verdict of the jury decided.
In my view the learned trial judge was right in refusing to allow both the questions to be put. Counsel observed that the Crown is able to lead similar fact evidence in certain circumstances. Why, he asked, should not the appellant have been allowed to put in the statements he made in connection with another document found in the same bag? But there is no basis for a comparison here. Evidence of other acts committed by an accused person can only be properly admitted if it tends to prove or disprove a matter in issue, for instance, the knowledge or intention of the person accused. In other words it is admissible because it is relevant. Of what relevance was it to the charges before the court to have had the appellant’s statements in relation to another document repeated before the jury? In my judgment this ground of appeal, too, must fail.
The next ground argued was that the learned trial judge misdirected or failed to direct the jury in a variety of respects. He erred, it was submitted, in not referring to the money and seeking to remove or minimise the prejudice created by its admission. I have already referred to this and do not propose to repeat what I said. Then, it was said, no adequate direction was given concerning the appellant’s right to have the voucher and other documents in his possession. The essence of the complaint here is that there was no reminder given to the jury of Mr Pilgrim’s evidence that he had no one occasion asked the appellant to take home work in connection with reconciliation of certain accounts. But a summing-up is an exercise related to the issues arising in the case and not an academic discourse on the different issues which may or could have, but did not, arise for determination. The appellant in his unsworn statement gave his explanation of the manner in which the voucher and other documents got into his briefcase and there was no suggestion that any one of them was in the briefcase for the purpose of being taken away for work at home. This was his explanation as to the voucher forming the subject matter of the charges for which he was convicted:
‘On the morning of the 5th December 1970 in the course of my duty I happened to be in the voucher cage. While looking through the pigeon holes I found a set of vouchers which bore a ‘paid’ stamp. I took this for investigation because I knew the proper place for such vouchers was the accounts section. My suspicion further arose by the fact that in the current account book of Barclays Broad Street for 1969 there is an amount of $491.20 for which no cheque seemed to have been written. Mr Pilgrim knows about this Mr Phillips also knows about it. I had discovered this by adding all the cheques for a particular date, and a sum total of these cheques failed to agree with the amount appearing in the book. I was in pursuit of these investigations when Mr Pilgrim sent a gentleman from Government Headquarters to me with a file. While working on this file, Mr Pilgrim himself came to my desk and told me to look here a minute now. I took the set of papers along with some other documents from my desk, pushed them in my bag and returned the briefcase to the upper drawer of my desk. My reason for doing this was because the Treasury is situated in a windbreak, and when this current of wind enters the Treasury it blows any loose documents from anyone’s desk in the checking section either in the direction of the Careenage or on top of the building.’
This, then, was his explanation of the reason for the voucher being found in his briefcase. The jury obviously rejected this explanation and not surprisingly when, according to the evidence of Corporal Maxwell, he removed it from an
envelope addressed to “Mr L A Belgrave, Ashton Hall, St Peter, Barbados, West Indies” and the appellant had told him before the envelope was opened that it contained personal belongings. Against this background it was unnecessary for the learned trial judge to remind the jury of Mr Pilgrim’s evidence about the appellant’s permission to take home work and I am unable to see that the omission to do so could have resulted in any injustice to the appellant.
Next it was submitted that there was misdirection in the evidence as to whether any money had been actually paid out on the voucher. This is what the learned trial judge told the jury in relation to the second count (in which he was charged with larceny):
‘Now there is evidence with regard to the exhibit itself ‘A1’ in respect of the date, because the voucher is dated the 28th May; it is in respect of the amount due on subsistence allowance to Mr Darrington James, the total is $118.59 and to the same date the 28th May there is a signature certifying that this amount for $118.59 is correct and was incurred under the authority of the Legislature, signed on behalf of the Accountant-General by a signature which looks like that of the prisoner, but in the receipt section it sets out, “Received this 27th day of May 1969 the sum of $118.59”, and the signature at the bottom which according to the evidence of Mr Darrington James is not his; and it is also to be seen on this voucher, on the face of it, the paid stamp marked ‘paid’ and also a revenue stamp in the amount of four cents. In regard to this portion of it - because this comes now to the question as to whether the taking was fraudulent or not - there is evidence as given by Darrington James that he never received any amount of $118.59, there is evidence on the face of the voucher itself showing the paid stamp and the revenue stamp and the receipt section filled in and there is also evidence elicited in cross-examination by counsel to the effect that the amount set out on the face of the voucher appeared in the teller’s cash book. One aspect in this case was drawn to your attention in several successive occasions, and this was in relation to the proceeds of this advances voucher, but the charge is not that the prisoner stole or otherwise dealt with the proceeds of the advances voucher; the charge is that he stole the document itself and it is for you to say whether, on the evidence before you afforded by the document together with the evidence which was brought out with regard to his dealings with these documents, you are satisfied that he took it and whether the taking was fraudulent or not.’
In respect of the first count (in which the appellant was charged with forgery) the learned trial judge gave this direction:
‘As regards to count one, the issue will be: Did the prisoner write the voucher Exhibit ‘A1’? If so, did he do so with intent to defraud? And on that point you will consider whether the voucher was put to use and you will recall the evidence which I reviewed in regard to certain things appearing on the face of the voucher - the ‘paid’ stamp, the receipt clause - and in regard to Mr Phillips’ evidence.’
The complaint is made that in both of these passages reference is made to certain evidence brought out when Mr Phillips, the Accountant-General, was being cross-examined to the effect that the amount on the face of the voucher appeared in the teller’s cash book. The submission is that the book was never produced, the evidence was mere hearsay and the jury should not have been reminded of the evidence or invited to regard it as material which could be used in the course of their deliberations for the purpose of resolving the appellant’s guilt or innocence. If counsel had wanted to have the cash book in court he could have taken steps to achieve this. He apparently did not and accepted the second-
hand version of what was in the book. The answer which Mr Phillips gave to his question may have surprised him but he did not seek to go further in order to confirm its truth or demonstrate its falsity.
In my judgment the objection which he has taken cannot in the circumstances succeed. The evidence of the voucher having been put to use (apart from what Mr Phillips said about the entry in the cash book) is to my mind very strong – the receipt portion filled out and signed, the paid stamp imprinted and the revenue stamp affixed. The jury from their verdict on the first count found that the appellant had forged it and had an intention to defraud, obviously rejecting his explanation of how the voucher came to be among his personal things. It would be without justification to upset this verdict because the jury was reminded of something about which counsel for the appellant had sought and received a second-hand report. In arguing this ground counsel also observed that the Financial Rules require payments of over $100 normally to be by cheque and that no cheque or cheque stubs were produced. The jury, he said, should have been reminded of this. However it is of little significance in view of the evidence of Mr Pilgrim, the Deputy Accountant-General, that in 1969 it was not firmly stipulated that amounts of over $100 had to be paid by cheque. Moreover, a modicum of reflection would indicate that anyone seeking to take such a sum unlawfully would hardly have a cheque for the amount written out or see to it that it is regularly written up in the Advances Ledger from which requests for re-imbursement for the other Governments are made up. For counsel had also complained that the learned trial judge did not remind the jury of Mr Pilgrim’s evidence that no entry of the amount appeared in the Advances Ledger.
The next ground of appeal argued was that there was inadequate and insufficient direction in relation to the first count with regard to the matters of the falsity of the document and intent to defraud. There was, it is said, an undue concentration on the evidence of Mr Mitchell, the handwriting expert, and not enough attention paid to equally important matters. For my part I agree that the learned trial judge may possibly have dealt with Mr Mitchell’s evidence in much greater detail than was necessary but that by itself is no defect. Counsel was unable to show that any other aspect of the summing up suffered in any way. It must be remembered that there is no settled pattern on which a summing up must follow. Every judge is entitled to adopt his own approach and only when he is in error or when there is some other good reason should his summing-up be faulted.
It was also argued that the verdicts of the jury were unreasonable and could not be supported having regard to the evidence. Such an argument is to my mind patently untenable. There was ample evidence to support both of the verdicts. In relation to the charge of forgery, there was evidence that it was his handwriting on the upper part of the document; that the signature on the receipt portion purporting to be that of Darrington James was not in fact his; that the voucher was found among his personal things when it should not have been there; that before the envelope containing the voucher was opened, he had told the police officer that it contained personal belongings; and there was the general supporting evidence of the handwriting expert, Mr Mitchell. In relation to the charge of larceny of the voucher, there is this evidence as well as that of Mr Phillips that he had no authority to have the voucher in his briefcase. In my view, this is ample evidence on which a reasonable inference could be drawn as to his guilt on both the charges.
The last ground argued was that the sentence was excessive. Attention was drawn to another case at the same Assizes in which another prisoner convicted of fraud was put on probation. I am not prepared to say that the sentence in this case was excessive. The learned trial judge had to determine what sentence was
a suitable one and he no doubt thought that the circumstances of this case demanded a sentence of imprisonment.
I would dismiss this appeal.
HANSCHELL CJ (Ag) and WARD J concurred.
(1972) 19 WIR 14
R v Belgrave (No 2)
COURT OF APPEAL OF BARBADOS
HANSCHELL CJ AG, WARD AND WILLIAMS JJ
12 MAY 1972
Criminal Law – Sentence – Commencement of sentence on dismissal of appeal – Glendairy Prison Rules 1936 [B] r 352 – Prisons Act 1961, No 66 [B], s 65 –Federal Supreme Court Regulations 1958, regs 26 (1), 27 (2) – Supreme Court of Judicature Act 1966, No 39 [B], s 5 (a).
The appellant was convicted at the July Assizes of the offences of forgery and larceny charged in two separate counts. He was sentenced to three years’ imprisonment on each of the counts, the sentences to run concurrently. His appeal against his convictions and sentences was dismissed and he applied for an order that his sentences should commence six weeks after the date of the entry of his notice of appeal or at most three months after the said date.
Held: that an order would be made directing that the sentences should commence six weeks from the date of entry of the notice of appeal.
Cases referred to
R v Bedford  2 All ER 766, 33 Cr App Rep 17, sub nom Practice Note, 92 Sol Jo 618, CCA, 14 Digest (Repl) 618, 6166
R v Mann (1949), 93 Sol Jo 680, CCA, 14 Digest (Repl) 676, 6884
Application by Lawrence Belgrave for an order directing that the sentences of imprisonment imposed on him on his convictions for forgery and larceny should commence six weeks after the date of entry of his notice of appeal. His appeal against these convictions had previously been dismissed.
WHA Hanschell QC and JMC Adams for the appellant
CS Husbands QC Director of Public Prosecutions and S Moore for the Crown
WARD J. The appeal in this case having been dismissed and the convictions and sentences confirmed, the appellant made an application that an order be made that his sentences commence six weeks after the date of the entry of his notice of appeal or at most 90 days or three months after the said date.
It was contended by counsel in support of his application that:
(a) there is no law declaring that a prisoner who has entered an appeal against his conviction and sentence is to be treated as a prisoner awaiting trial - notwithstanding r 352 of the Glendairy Prison Rules 1936 (as amended) which only purports to provide that the time served by a prisoner before entering his appeal shall be taken into account in computing the length of his sentence;
(b) any attempt by the competent authority to make any such rule by virtue of s 65 of the Prisons Act 1961, No 66 [B] would be ultra vires the power granted therein;
(c) regulation 26 (1) of the Federal Supreme Court Regulations 1958, would therefore apply to such persons and they should be treated as prisoners awaiting trial;
(d) by reg 27 (2) of the same Regulations such persons are entitled to have six weeks or the whole of the period if less than six weeks disregarded in computing the term of any sentence to be served; and
(e) the appellant, having been convicted and sentenced at the October Assizes, is entitled to an order that his sentence commence six weeks or at the most three months after the day on which his notice of appeal was entered.
The law which deals with this matter and empowers the court to make orders in connection therewith it contained in regs 26 (1) and 27 (2) of the Federal Supreme Court Regulations 1958.
Regulation 26 (1) enacts that an appellant who is not admitted to bail shall, pending the determination of his appeal, be treated in such manner as may be directed by a law (or rules made thereunder) in operation in the Territory where such appellant is in custody and in the absence of such law or rules then shall be treated as a prisoner awaiting trial.
Regulation 27 (2) enacts that, subject as thereinafter provided, six weeks of the time during which any appellant when in custody is treated pending the determination of his appeal as a prisoner awaiting trial, or the whole of that time if less than six weeks shall be disregarded in computing the term of any sentence to which he is for the time being subject; provided that:
‘(a) the foregoing provisions of the regulation shall not apply where leave to appeal is granted under this Part of these Regulations or any such certificate as is mentioned in paragraph (b) of regulation 21 has been given for the purpose of the appeal;
(b) in any other case the Federal Supreme Court may direct that no part of the said time or such part as the Court thinks fit (whether shorter or longer than six weeks) shall be disregarded as aforesaid.’
By the Supreme Court of Judicature Act 1966, No 39 [B], s 5 (a), the Court of Appeal of Barbados is clothed with the same power and jurisdiction as the Federal Supreme Court was by virtue of these Regulations. Here it may be mentioned that regulation 27 (2) above mentioned is almost identical with s 38 (2) of the Criminal Justice Act 1948 of England.
As far as can be ascertained there is no specific provision in the laws of Barbados or in any regulations or rules made thereunder which defines the status of an appellant during the time that he is held in custody pending the hearing of his appeal or which declares that such a person shall be treated as a prisoner awaiting trial.
Rules 340 to 354 of Glendairy Prison Rules, 1936 (as amended) make provision for special treatment in regard to persons in custody, but they do not provide that such persons shall be treated as prisoners awaiting trial. It may well be that these rules fulfill the requirements of reg 26 (1) by directing the manner in which an appellant is to be treated pending the determination of his appeal and from these it might be successfully argued that such a person is actually being treated as a person awaiting trial.
Whether from the above rules such a person is a person who is being treated as a prisoner awaiting trial or whether such rules are ultra vires the power conferred on the competent authority by s 65 of the Prisons Act 1961, No 66 [B] and, in this latter event, it is held that in Barbados there is an absence of any such law or rules, are questions which appear unnecessary of determination for the granting or refusal of this application.
In my opinion the proper construction of reg 27 (2) is that:
(a) where an appellant who is being held in custody pending the determination of his appeal is treated as a prisoner awaiting trial six weeks of the time during which he is so held or the whole of that time if less than six weeks is to be disregarded in computing the term of any sentence to which he is for the time being subject;
(b) the above provision is subject to what is hereinafter provided;
(c) in regard to an appellant to whom leave to appeal has been granted or to whom any such certificate as is mentioned in para (b) of reg 21 has been given for the purpose of the appeal, such an appellant is excepted from the foregoing provisions of this regulation and is entitled to have his sentence commence on the date of his original conviction;
(d) in any other case, including the cases dealt with by the foregoing provisions of this regulation (ie, 27 (2), proviso (a) being excepted) as well as any other case which is not particularly dealt with or mentioned by this regulation the court is given a wide discretion to direct that no part of the said time or such part thereof as the court shall seem fit (whether longer or shorter than six weeks) shall be disregarded.
If this is a correct interpretation of reg 27 (2) it means that where an appellant is held in custody pending the determination of his appeal the time spent in prison does not count as part of his sentence if the application for leave to appeal or the appeal itself is heard and dismissed within six weeks of the date of the entry of application or notice of appeal. If the application for leave to appeal or the appeal is not heard and dismissed until after six weeks of the abovementioned date any time that the appellant has spent in prison over and above six weeks is to be counted as part of his sentence unless there is some special circumstance to warrant the exercise of the wide discretion vested in the court by proviso (b).
I am confirmed in this opinion by the judgment of Lord Goddard CJ, in R v Badford ( 2 All ER 766, 33 Cr App Rep 17, sub nom Practice Note, 92 Sol Jo 618, CCA, 14 Digest (Repl) 618, 6166) ( 2 All ER at p 766):
‘Section 38 (2) of the Criminal Justice Act, 1948, provides that six weeks or less of the time during which an appellant to this court is specially treated shall be disregarded in computing the term of his sentence. This means that where a prisoner gives notice of appeal or makes an application for leave to appeal, the time spent in prison does not count as part of his sentence if the application or appeal is heard and dismissed within six weeks. If the hearing does not take place until after six weeks have expired from the date of the notice, and if the appeal or application is dismissed, any time that the prisoner has spent in prison over six weeks will be counted as part of this sentence.’
In dealing with the particular facts of the case he continues:
‘It may, however, be that his application for leave to appeal has come before a single judge of the court and been dismissed and the prisoner has desired that the case should be further considered by the full court. In such a case the time that must elapse between the date of the dismissal of the application by the single judge and the dismissal of the application by this court will not count as part of the sentence for the fact that the application has already been dealt with
and refused will ordinarily be considered a good reason for the court exercising the discretion which s 38 (2) (b) gives it.’
I am further fortified in this opinion by the decision of the Court of Appeal in R v Mann ((1949), 93 Sol Jo 680, CCA, 14 Digest (Repl) 676, 6884). In this case the whole of the time spent by an appellant who had been specially treated under the Criminal Appeal Act 1907 was disregarded in computing the term of his sentence. The court so ordered because the appeal was considered to be of a frivolous nature.
In the past this court has adopted the practice of disregarding three and six months in the computation of the term of sentence. This practice had to be adopted because in the normal course of the administration of justice it is seldom, if at all, possible for an application for leave to appeal or an appeal itself to come on for hearing within three months of the date of the entry of the application for leave to appeal or of the notice of appeal. There is good reason for this, but it must be said that it is through no fault of any appellant. In such cases the court has acted on the principle that the exercise of the discretion vested in it by reg 27 (2) (b) is justified to ensure that a reasonable portion of the term of the sentence is served in conformity with the punishment intended. From the argument presented to the court by counsel in support of the application, it would appear that he concedes that the above practice represents a proper exercise of the abovementioned discretion but urges that in no case should the period exceed three months. Even if this is not so, I am of the opinion that the former practice represents a proper exercise of the discretion vested in the court and that the same is necessary in the interests of justice.
HANSCHELL CJ (Ag) and WILLIAMS J concurred and the court made an order for the sentences to commence six weeks from the date of entry of the notice of appeal.
(1972) 19 WIR 17
Nurse v Clarke
DIVISIONAL COURT OF BARBADOS
HANSCHELL CJ AG AND WILLIAMS J
26 MAY 1972
Bastardy – Corroboration – Admission by alleged father – Intercourse prior to date of conception – Whether admission corroboration – “Some material particular”.
The respondent to this appeal gave birth to a child on 16 August 1971 and on 8 November 1971 she preferred a complaint before a magistrate under the Affiliation Proceedings Act 1963, No 29 [B] in which she alleged that the appellant was the father and sought support for the child. He denied the allegation and the magistrate after hearing the evidence, adjudged him to be the father. This gave rise to the present appeal.
It was not in dispute that the parties had been on intimate terms and the appellant admitted that he was the father of a male child born to the respondent on 15 May 1970. However, he testified that sexual relations between them ceased in January 1970, when the respondent was pregnant with the first child. The respondent on the other hand testified that she and the appellant continued to have sexual intercourse up to December 1970.
It was submitted before the magistrate on the appellant’s behalf that there was no corroboration of the respondent’s evidence as required by law. However, the magistrate found that the woman’s evidence was corroborated relying on Simpson
v Collinson ( 1 All ER 262,  2 QB 80,  2 WLR 387, 128 JP 174, CA, Digest Cont Vol B, 54, 426 a), a decision of the Court of Appeal in England which, he stated, provided high persuasive authority that the alleged father’s admission of sexual intercourse with the mother, albeit at some date prior to the date of conception, could corroborate the evidence of the mother as required by the Act. On appeal,
Held: that there was a great difference between an interval of a few weeks and a lapse of some nine to ten months and one could not in the circumstances of this case attach to the appellant’s admission of sexual intercourse with the respondent that compelling significance which might be warranted in other circumstances. In the circumstances it would not be reasonable to hold that the appellant’s admission of sexual intercourse with the respondent could by itself constitute corroboration.
Cases referred to
Simpson v Collinson  1 All ER 262,  2 QB 80,  2 WLR 387, 128 JP 174, CA, Digest Cont Vol B, 54, 426 a
Moore v Hewitt  2 All ER 270,  KB 831,  LJR 1276, 177 LT 576, 111 JP 483, 63 DR 476, 45 LGR 558, 560, 3 Digest (Repl) 453, 423
Appeal by Andy Nurse against an order of a magistrate adjudging him to be the father of a child born to Eunita Clarke on 16 August 1971. The facts are set out in the judgment.
J Connell for the appellant
W Hanschell QC for the respondent
WILLIAMS J read the judgment of the court: The respondent to this appeal gave birth to a child on 16 August 1971 and on 8 November 1971 she preferred a complaint before the magistrate at District C in which she alleged that the appellant was the father. This the appellant denied, but the magistrate, after hearing the evidence, adjudged him to be the father of the child. This gave rise to the present appeal.
The admitted background to the case is as follows. The parties were intimate from some time in 1969 with sexual intercourse taking place between them regularly. On 15 May 1970 a male child, Alvin, was born. The appellant admitted paternity of this child and the magistrate at District C made an order against him in respect of this child.
However, from here on there is a conflict of evidence. The respondent alleged that she and the appellant continued to have sexual intercourse up to December 1970 and that on 16 August 1971 she gave birth to a second child. The appellant denied this and his story was that sexual relations between them ceased in January 1970 when the respondent was pregnant with the first child.
Counsel for the appellant submitted to the magistrate that the evidence of the respondent was not corroborated as required by law. On the other hand, counsel for the respondent submitted that there was corroboration in the evidence of the respondent’s mother and in the admission of the appellant that he had sexual intercourse with the respondent. The respondent’s mother testified that the appellant used to visit her house regularly and that this continued until the end of 1970. She also stated that she had never seen the respondent with any other man.
The learned magistrate in adjudging the appellant to be the father of the second child, reasoned on these lines. There was no suggestion or allegation that the respondent associated with other men and therefore she does not require corroboration as to the date of conception. And the judgments read in the Court of
Appeal in Simpson v Collinson ( 1 All ER 262,  2 QB 80,  2 WLR 387, 128 JP 174, CA, Digest Cont Vol B, 54, 426 a) provided high persuasive authority that the alleged father’s admission of sexual intercourse with the mother, albeit at some date prior to the date of conception, could corroborate the evidence of the mother as required by the Act. The magistrate went on to say that for his part he unhesitatingly accepted the authority of Simpson v Collinson ( 1 All ER 262,  2 QB 80,  2 WLR 387, 128 JP 174, CA, Digest Cont Vol B, 54, 426 a), and in the case before him he held that the evidence of the mother was in fact corroborated.
Certain passages were quoted with approval in the magistrate’s reasons - the following two from the judgment of Dankwerts LJ ( 1 All ER at p 263):
‘Now it is to be observed that what the statute requires is not corroboration (as it appears to me) of the whole of the mother’s evidence, but merely corroboration of the evidence of the mother in regard to ‘some material particular’. It seems to me that in this case the admissions made by the respondent that he had had intercourse twice with the appellant, albeit at a date before the child could possibly have been conceived, is capable of being corroboration of the appellant’s evidence. It is a corroboration of the mother’s story in a material particular, as it seems to me, namely, that she had been on intimate terms with the respondent, so much so that he admits that they had intercourse within a few weeks of the alleged intercourse resulting in conception - the strongest evidence of inclination of the respondent to have intercourse with the appellant that one could have. It is not necessary, as I have said, that the whole of the appellant’s story should be corroborated, only that her evidence is corroborated ‘in some material particular’, as the statute says; and it seems to me that the fact of being on intimate terms is a corroboration of the appellant’s evidence in a material particular’.
And ( 1 All ER at p 265):
‘Now while in the present case it is true that the respondent denies having had intercourse at the time when the child must have been conceived, in my opinion nonetheless the fact that he admits intercourse at dates only a few weeks before the time when the child must have been conceived - that is to say, in December 1960, and 3 February 1961 - may be corroboration of the appellant’s story; because when they were on such terms as to indulge in intercourse at those dates which were admitted by the respondent, it makes it probable, or it may make it probable, that the appellant’s story is true and that she is to be believed.’
The magistrate also quoted the following passage from the judgment of Sellers LJ ( 1 All ER at p 268):
‘But it is to be observed (and it is one of the factors to which Lord Goddard CJ, paid attention in Moore v Hewitt ( 2 All ER 270,  KB 831,  LJR 1276, 177 LT 576, 111 JP 483, 63 DR 476, 45 LGR 558, 560, 3 Digest (Repl) 453, 423)) that in the present case, as in that case, there is no suggestion that the girl, the mother, was having an association with any other man - as Lord Goddard there said, a very important matter in these cases.’
While we are greatly impressed with the vast amount of thought and care which the learned magistrate obviously bestowed on this case, we are of the view that one cannot in the circumstances here attach to the appellant’s admission of sexual intercourse with the respondent that compelling significance which may be warranted in other circumstances. In our view there is a great difference between an interval of a few weeks and a lapse of some nine to ten months and even though no issue was made of the intervention of some other male in the respondent’s affections, we are not persuaded that it would be reasonable to hold that in the present case the appellant’s admission of sexual intercourse with the respondent could be itself constitute corroboration. It would seem to us that so to hold would go very close to allowing a presumption of paternity to arise from the
admission of a man that one child born out of wedlock was his. While it is true that a child born in wedlock is presumed to be legitimate, we know of no authority for saying that a child born out of wedlock should be presumed to be that of a man who is the father of a previous child by the same mother. We are aware of the importance attached by the learned magistrate to the evidence of the respondent’s mother that the respondent was not associating with another man or other men. However, this evidence is entirely negative and, as a matter of common sense, can mean no more than that she was not seen by her mother to have another male friend, not that she did not or could not have had one.
The positive evidence given by the respondent’s mother and which was not dealt with by the magistrate at all was to the effect that she saw the appellant “come at her house regularly and call the respondent up to the end of last year” (1970). Whether or not this evidence on the part of the respondent’s mother can provide a link to show continued familiarity or intimacy on the part of these two persons depends on its real meaning and its trustworthiness. Unfortunately, the magistrate did not refer to this evidence at all and we, not having seen this witness, cannot venture an opinion one way or the other. In the circumstances and in the interests of all the parties it would appear that the best course would be to remit this case to the magistrate to be reheard and redetermined.
(1972) 19 WIR 20
Re Application By Lennox Arthur And Calvin Hermanstyne
COURT OF APPEAL OF GUYANA
LUCKHOO C, PERSAUD AND CRANE JJ A
17, 18 JUNE 1971, 25, 28 FEBRUARY, 1, 2, 7, 8 MARCH, 12 JULY 1972
Practice and Procedure – Motion paper signed by “barrister acting as solicitor” – Whether permissible under Legal Practitioners Ordinance [G] – Constitution of Guyana – Whether Constitution is an Ordinance – Legal Practitioners Ordinance, Cap 30 [G], s 42, Supreme Court Ordinance, Cap 7 [G], ss 3, 31, 33.
Practice and Procedure – Notice of appeal signed by “barrister acting as solicitor” – Whether such notice valid – Federal Supreme Court (Appeals from British Guiana) Rules, 1959 (SI 1959 No 8).
Courts – Jurisdiction to investigate functions performed under the authority of the Constitution – Remedy not stated – Means to invoke right implied – Constitution of Guyana, art 125 (8).
The applicants were dismissed from the Postal Service of Guyana at the instance of the Public Service Commission after departmental charges against them had been instituted and enquired into by a public officer attached to the Ministry of Agriculture. The applicants then applied by originating motion for an order or rule calling on the Commission and the public officer concerned to show cause why a writ of certiorari should not issue to remove the enquiry to the High Court for purposes of quashing the orders of dismissal.
The motion paper was signed by “B E Gibson, Barrister-at-Law acting as Solicitor”. In the court below, the point was successfully taken on behalf of the Commission that the process then before the court was a nullity in that a barrister could not in the instant case properly act as a solicitor. The notice of appeal to bring the matter to the Court of Appeal was signed by counsel who described
himself as “Barrister-at-Law acting as Solicitor”. The points taken on behalf of the Commission on appeal were:
(i) that the motion paper was a nullity; and
(ii) that the notice of appeal was also a nullity with the result that the appeal was not properly before the court.
Held: (i) that, by virtue of the Federal Supreme Court (Appeals from British Guiana) Rules, 1959 (Ord II, r 1 (D)), a barrister can sign a notice of appeal; that the words “acting as a Solicitor” in the notice of appeal were mere surplusage; and therefore the notice of appeal was good;
(ii) (per Luckhoo C) that the Constitution of Guyana was an ordinance within the meaning of s 42 (1) B (f) of the Legal Practitioners Ordinance, Cap 30 [G]; that art 125 (8) of the Constitution provides for a jurisdiction remedy, and therefore the motion paper was properly signed.
(iii) (per Crane JA) that the Constitution is not an ordinance within the meaning of s 42 (1) B (f) of the Legal Practitioners Ordinance, Cap 30 [G], but that s 3 of the Supreme Court Ordinance, Cap 7 [G] does provide for the making of an application for the judicial remedy of certiorari; and therefore the motion paper was properly signed;
(iv) (per Persaud JA, dissenting) that the Constitution is not an ordinance within the meaning of s 42 (1) B (f) of the Legal Practitioners Ordinance [G]; that the motion paper for the issue of the prerogative writ of certiorari could not properly have been signed by a barrister-at-law; and that the judge of first instance was right in refusing to issue the writ.
Appeal allowed. Matter remitted to court of first instance to be heard on its merits.
Cases referred to
Re Sarran (1969), 14 WIR 361
Re John Ewart Langhorne (1969), 14 WIR 353
Evelyn v Chichester (1970), 15 WIR 410
Ashwander v Tennessee Valley Authority 297, US 280, 346-48, 1936
Anisminic v Foreign Compensation Commission  1 All ER 208,  2 AC 147,  2 WLR 163, 113 Sol Jo 55 HL, Digest Cont Vol C, 282, 2557b
R v Nat Bell Liquors Ltd  2 AC 128, 91 LJPC 146, 127 LT 437, 38 TLR 541, 27 Cox, CC 253, PC, 16 Digest (Repl) 469, 2897
McCullock v Maryland (1819), 7 US (4 Wheat) 316
R v Lympne Airport Chief Immigration Officer, Ex parte Amrik Singh  3 All ER 163,  1 QB 333,  3 WLR 945, sub nom R v Chief Immigration Officer, Ashford Airport, Ex parte Amrik Singh, 112 Sol Jo 657, DC, Digest Cont Vol C, 20, 157v
Coghlan v Vieira (1958) LRBG 108
Glossop v Heston Local Board [1874-80] All ER Rep 836, (1878) 47 LJ Ch 536, 26 WR 433, 22 Digest (Repl) 515, 5733
Jaundoo v A-G of Guyana (1971), 16 WIR 141
Metcalfe v Cox  AC 328
Mahabeer v Singh (1966), 9 WIR 475
Sirikissun v Fernandes (1923), LRBG
Amihabibar v Registrar of Deeds (1931), LRBG 143
Sanichari v Etwar and Dool (1945), LRBG 77
Heeralall v Shivcharran (1958), LRBG 132
Re Brocket, Dawes v Miller  1 Ch 185, 77 LJ Ch 245, 97 LT 780, 52 Sol Jo 159, 49 Digest (Repl) 827, 7791
R v Bolton  1 QB 66, Arn & H 261, 4 Per & Dav 679, 10 LJMC 49, 5 JP 370, 5 Jur 1154, 113 ER 1054, 16 Digest (Repl) 468, 2876
Russian Bank v De Mulhouse  All ER Rep 381,  AC 112, 93 LJKB 1098, 132 LT 99, 40 TLR 837, 68 Sol Jo 841
Shaw and Sons v Shaw  All ER Rep 456,  2 KB 113, 104 LJKB 549, 153 LT 245, CA, 50 Digest (Repl) 438, 1377
Ex parte Surujballi (1948), LRGB
Dilworth v Stamp Comrs, Dilworth v Land and Income Tax Comrs  AC 99, 79 LT 473, 47 WR 337, 15 TLR 61, sub nom Dilworth v New Zealand Stamp Comrs, 68 LJPC 1 PC, 19 Digest (Repl) 659, 348
R v Pearce (1880), 5 QBD 386, 49 LJMC 81, 28 WR 568, DC, 44 Digest (Repl) 269, 960
London School Board v Jackson (1881), 7 QBD 502, 50 LJMC 134, 45 JP 750, 30 WR 47, DC, 44 Digest (Repl) 270, 961
Law Society v United Service Bureau  1 KB 343, 103 LJKB 81, 150 LT 159, 98 JP 33, 50 TLR 77, 77 Sol Jo 815, 31 LGR 436, 30 Cox, CC 37, DC, 43 Digest (Repl) 452, 4858
Pound v Plumstead Board of Works (1871), 41 LJMC 51, LR 7 QB 183, 25 LT 461, 36 JP 468, 20 WR 177, 44 Digest (Repl) 269, 959
Georgetown Coconut Estates, Ltd v Argosy Co, Ltd and Cunningham (1917), LRBG 78
Fraser v Milner (1896), LRBG 20
Ferreira v Francisco (OG 6 June 1903, p 1515)
Larkow v Williams (OG 13 April 1904, p 903)
Prithipalsingh v Barbarjaising (OG 25 June 1910, p 1655)
Humphrey v Bruyning (1921), LRBG 20
Reg Ats Conrad v Mayor and Town Council (1865), LRBGOS 173
Henriques v Henriques (1897), LRBG 101
Greenvelt v Burwell (1700), 1 Ld Raym 454
R v Berkley and Bragge (1754), 1 Keny 80, Say 123, Dunning 13, 96 ER 923, 16 Digest (Repl) 449, 2569
Re Law (1842), 4 Beav 509, 11 LJ Ch 118, 6 Jur 615, 49 ER 436, 47 Digest (Repl) 215, 1802
Re Barrett (1869), 28 UCR 559 (Can), 16 Digest (Repl) 522, *1448
Re Baker (1879), 10 Ch D 165
Ashby v White (1703), 2 Ld Raym 938, 1 Bro Part Cas 62, Holt KB 524, 6 Mod Rep 45, 1 Salk 19, 3 Salk 17, 14 State Tr 695, 1 Smith LC 12th Ed 266, 1 ER 417, 1 Digest (Repl) 26, 197
Barraclough v Brown  AC 615, 66 LJQB 672, 76 LT 797, 62 JP 275, 13 TLR 527, 8 Asp MLC 290, 2 Com Cas 249, HL, affg (1896) 65 LJQB 333, CA, 16 Digest (Repl) 132, 160
Appeal from the High Court of Guyana.
CAF Hughes, BE Gibson (instructed by TA Morris) for the appellants
Dr M Shahabuddeen SC Solicitor-General MS Rahaman Principal Legal Adviser (instructed by State Solicitor) for the respondents
LUCKHOO C. The appellants, Lennox Arthur and Calvin Hermanstyne, were dismissed for cause from their employment as Rural Postal Assistants in the postal section of the Ministry of Communications, effective from 26 April 1969, on orders from the Public Service Commission (hereinafter referred to as the “Commission”), in which is vested under art 96 (1) of the Constitution of Guyana “the power to... remove and exercise disciplinary control over persons holding or acting in such offices...”. The procedure adopted by the Commission prior to dismissal was to institute certain charges against the appellants, and cause an enquiry to be held by one A R Brutus, an officer of the Ministry of Agriculture. This it had a right to do under art 96 (2).
On 3 May 1969, the appellants by originating motion applied for an order or rule calling upon the Commission and the said A R Brutus to show cause why a writ of certiorari should not issue to remove into the High Court the said enquiry for the purpose of quashing the said order of dismissal. This motion was signed by “B E Gibson, Barrister-at-Law, acting as Solicitor”, and was supported by an affidavit sworn to by the appellants, in which was set out the grounds relied on, and their authority for Mr Gibson to act on their behalf as their solicitor.
In the main the order of dismissal was challenged on the ground of lack of or excess of jurisdiction, and error of law on the face of the record. The matter came up before Vieira J, who, on 15 May 1969, ordered:
(a) that the Public Service Commission do file an affidavit to show cause why a writ of certiorari should not be issued to remove into court the record of the Enquiry into the charges of misconduct against the appellants for the purpose of being quashed;
(b) that a copy of the motion and affidavit be served on the Commission returnable for Monday, 9 June 1969;
(c) that a certified copy of the record of the Enquiry be filed by the Commission in the Registry of the Court as well as served upon the appellants;
On 17 June 1970, the matter came up before Mitchell J, when it became apparent that the aforesaid order of Vieira J, had not been obeyed. However, counsel appearing for the Commission took the course of objecting to the process before the court which, he contended, was a nullity in that it was issued by a barrister-at-law who could not, in the instant case, legally act as a solicitor. Reference was made to the Legal Practitioners Ordinance, Cap 30 [G], and more particularly to s 42 (under the heading “Contentious Business”) to support the argument that such entitlement did not come within any of the categories there set out which allowed a barrister to act as a solicitor. In reply, Mr Gibson, for the appellants, alluded to s 42 (1) B (f) which expressly gave to a barrister, as it did to a solicitor, the right to act alone and have audience when making “any application under any Ordinance providing for the making of an application for any relief or remedy”.
He then went on to refer to art 125 (8) of the Constitution, evidently to make the point that the effect of that provision was to allow for the making of an application for a certain relief or remedy, which would entitle a barrister to issue process under the Legal Practitioners Ordinance and particularly s 42 (1) B (f). Mitchell J, gave a written ruling on 22 June 1970, and struck out the application having found favour with the submission that the proceedings were a nullity, as the application did not properly fall, as was contended, within that particular category of s 42, and was “independent of any Ordinance”.
The true construction then of art 125 (8) of the Constitution will not be without significance in deciding the issue. For if indeed (a) the Constitution of Guyana could find lodgment within the meaning of an “Ordinance”, and (b) art 125 (8) does in effect provide for the making of an application for any relief or remedy, then it would have been wrong to strike out the proceedings as was done, through a failure to appreciate that it was brought and presented in a manner authorised by the law of this country, through s 42 (1) B (f) of Cap 30 [G].
Reflection on this aspect occasioned no little concern, especially as the argument raised at first instance was not pursued in this court. The case was therefore re-committed for further argument on the point and the views of counsel specifically invited as to whether the proceedings in question before the High Court could be said to fall within s 42 (1) B (f) of the Legal Practitioners Ordinance, as an application for a relief or remedy under the provision of art 125 (8) of the Constitution, especially having regard to the decision of this court in Re Sarran ((1969), 14 WIR 361) and Evelyn v Chichester ((1970), 15 WIR 410).
To argue on this reference, Mr Clarence Hughes, for the appellant, and the Solicitor-General, Dr Shahabuddeen, for the respondent, came into court for the first time. Both were so thorough and painstaking that it would be unforgiveable not to record with gratitude the assistance obtained from their expositions and industry.
Mr Hughes was allowed to present a further contention, viz, that a barrister-at-law in this country, other matters apart, was entitled to act as was done in this case through a pre-existing right acquired at law before the Legal Practitioners Ordinance came into force, which was in no way impaired, disturbed, or repealed by that ordinance or any other. The argument rummaged deeply into the historical past and resurrected the interesting background of how both branches of the profession functioned over the years, and not at all time under strict sanction of law. But the question must of necessity be: did any such right, even if it existed, still subsist or not in the face of the express provisions and necessary implications of Cap 30?
The learned Solicitor-General vigorously and meticulously sought to confound the concept that any such right existed immediately prior to the 1931 Ordinance, but contended that, in any event, even if there was, its availability would have been terminated by the said ordinance.
The preliminary question therefore to be decided is, whether it could be truly said that the ordinance allowed for the recognition or preservation of any “previous” claimable rights, or whether it did not seek to determine on its own all outstanding questions in the manner therein prescribed.
That the latter was intended, I entertain no doubt. Its scheme and design was clearly to circumscribe comprehensively how and in what manner barristers and solicitors should be permitted to practise. It set out to settle by devious compromises their historical competing claims, by creating, to use the words of the Solicitor-General, “a curious professional hybrid”. The right to participate in work of certain types was made open to both branches; in certain instances exclusive to each, and in others partially permissible to both, with residual provision for the implication that the practice in England would govern situations not expressly catered for.
I would therefore accept the submission of the Solicitor-General that the 1931 Ordinance was the first law to define the extent to which a barrister could act as a solicitor; that it was clearly intended to be a comprehensive regulation of this previously vexed question; that its entire purpose would be subverted by holding that something or the other was saved. Hence, even if a barrister previously had a right to sign a motion paper, this right could no longer be asserted after 1931,
as any other construction would make nonsense of the ordinance. The necessity, therefore, does not, in my view, arise to go further into this aspect, and I shall now proceed to ask: (a) whether the particular application for a writ of certiorari in the circumstances of this case is a remedy available under the Constitution; and (b) whether the Constitution is capable of being designated as an “Ordinance”, to determine whether a barrister alone could issue process under s 42 (1) B (f) of Cap 30 [G].
I would wish to examine the question at (b) first. The Solicitor-General contends that in law the “Constitution” of Guyana could not be said to be “Ordinance”, as it is of different ilk and connotation The definition of “Ordinance” in Wharton’s Law Lexicon, 14th Edn, p 18, was cited as: “the name generally given to laws made by the Governor with the advice and consent of the Legislative Council or Court in colonies where representative assemblies do not exist”. Then attention was drawn to certain Royal Instructions from 1831 to 1928 where it was the will of the Sovereign that:
(a) “All laws to be enacted by the said Court of Policy shall henceforth be styled Ordinances.” (Instructions issued by King William IV to Governor D’Urban.)
(b) “The style of enacting laws shall be ‘Ordinances’...”. (Royal Instructions of 25 February 1911, and Royal Instructions of 20 July 1928.)
These were in force when s 42 (1) B (f) of Cap 30 was enacted and were continued by art 7 (1) of the Royal Instructions dated 1 April 1953. It was therefore argued that the word “Ordinance” was used as the process of law-making in this sense alone, whereas the “Constitution” derived its authority as a “law” from an imperial Order in Council and not from the law-making process in Guyana.
There can be no quarrel with this argument thus far. But by our Interpretation Ordinance, s 5 of Cap 5 [G], this provision is made:
‘‘Statute’ means any Ordinance or Act of Parliament for the time being in force in the Colony, and includes any order of the Queen in Council, rule or regulation, order of the Governor and Legislative Council, or by-law for the the time being having the force of law therein.’
What is the paramount object which this provision seeks to promote? The marginal note to s 5, which was first enacted in 1891, reads: “Meaning of certain expressions in future ordinances and official documents”. It must be conceded that originally the distinction between “ordinances” and “statutes” was very obscure, and Mr Hallam in his luminous and masterly chapter on the English Constitution in the View Of The State Of Europe During The Middle Ages said that “no precise and uniform principle can be laid down about it”. The word “statute” in English law is now synonymous with “an Act of Parliament” which Coke said, as far back as 1606 in The Prince’s case, required the assent of “The King, the Lords and the Commons”. He pointed out that: “If it appears by the Act that it was made by two only, it is no statute, but merely an Ordinance”. However, from Hawkins’s Preface To Statutes, 1735, it appears that many ancient statutes were penned in the form of “Ordinances” without mentioning the concurrence of Lords and Commons, and that this defect was solved by “universal reception”.
Instances, no doubt, abound perhaps in all ages where from laxity of expression or inattention to language, such confusion was created, so much so that Mr Prynne (described as a learned laborious, sometimes judicious, but oftener inconsistent antiquary) attempted to challenge Coke’s distinction between a “statute” and an “ordinance” by producing more than a hundred printed statutes in which the words “Act” and “Ordinance” were used “indifferently” or coupled together as “synonymous terms”. (See Prynne’s Irenarch. Rediviv 27 to 74.) But there can
be little doubt that in England whilst “ordinances” (which included patents and charters) had no other sanction than the Parliament Roll, they were never proclaimed by the Sheriff. And so whilst an ordinance might be altered by a statute, a statute could not be altered by an ordinance. A statute was an ordinance and something more. (See Dwarriss’s Treatise On Statutes Pt. I, p 14.)
Not only in England was there in certain ages a lack of uniformity in description of certain legislative processes, but also in the colonies. Laws in the colonies, even with the Governor’s assent and when subject to disallowance by an imperial Order in Council, were frequently referred to as “Acts” passed by the Legislature of the Sovereign’s “colonies or plantations” or as “colonial statutes”. And as late as 1915 one finds in the Supreme Court Ordinance, Cap 7 [G], s 44, a clear illustration of the interchangeable use of “statute” for “Ordinance”. This section reads:
‘(1) The practice and procedure of the Court-
(a) in its general civil jurisdiction shall be regulated by this Ordinance and by rules of court, and where no provision is made by this Ordinance, by rules of court, or by any other statute, shall correspond to the existing practice and procedure of the Supreme Court of Guyana;
(b) in its criminal jurisdiction shall, subject to this Ordinance and to any other statute correspond to the existing practice and procedure of the Supreme Court of Guyana;...’
The utility, then, of s 5 of the Interpretation Ordinance, supra, becomes readily apparent. It seeks to dissolve distinctions which might or could be technically drawn between different types of legislation, and permits for such an interchange that when reference is made to one “type” it becomes possible to read in other “types”. In the first stage it equates a “statute” with an “ordinance” or “Act of Parliament” and afterwards allows for the reading into each of these categories of “any order of the Queen in Council, rule or regulation, order of the Governor and Legislative Council, or by law...”., provided that the “statute”, “ordinance” or “Act of Parliament” is “for the time being in force” in the country, and the “Order in Council”, “rule” or “regulation”, etc, has “for the time being” “the force of law therein”. By this means, the scope of a specific reference is enabled to be widened beyond the limitations previously imposed.
Consequently, if there is a legal right to make an application under what is described as a “statute”, this entitlement would extend to an “ordinance” or vice versa, and in each case would include imperial Orders in Council, etc, provided that what is stated and what is to be substituted are legally in force at the time. The intention clearly is not to differentiate, but to assimilate as long as the quality of enforceability is available. I would therefore hold that “ordinance” under s 42 (1) B (f) of Cap 30, through the medium of s 5 of the Interpretation Ordinance, Cap 5 [G], would include an Order in Council of the Queen, and so the Constitution of Guyana.
Now it is time to enquire whether art 125 (8) properly construed does in law or not provide for the making of an application for any relief or remedy. For this purpose it will be necessary to set out the relevant provisions of arts 119 (6) and 125 (8). Art 119 (1) stipulates that:
‘Save as otherwise provided in this Constitution, in the exercise of its functions under this Constitution a Commission shall not be subject to the direction or control of any other person or authority.’
and receives further elucidation from art 119 (6) which provides that:
‘Any question whether-
(a) a Commission has validly performed any function vested in it by or under this Constitution;
(b) any member of a Commission or any other person has validly performed any function delegated to such member or person by a Commission in pursuance of the provisions of this Constitution; or
(c) any member of a Commission or any other person has validly performed any other function in relation to the work of the Commission or in relation to any such function as is referred to in the preceding sub-paragraph;
shall not be enquired into in any court.’
Whilst under art 125 (8), this positive qualification is asserted, viz.:
‘No provision of this Constitution that any person or authority shall not be subject to the direction or control of any other person or authority in the exercise of any functions shall be construed as precluding a court from exercising jurisdiction in relation to any question whether that person or authority has exercised those functions in accordance with this Constitution or any other law.’
The construction of these articles has already attracted and received such judicial consideration as would seem to justify the view that at least certain aspects of what they import could fairly be said to be settled. In written decisions of this court, the matter was discussed in three cases, viz: Re Sarran ((1969), 14 WIR 361), Re Langhorne (Re John Ewart Langhorne (1969), 14 WIR 353), and Evelyn v Chichester ((1970), 15 WIR 410).
The appeal in Sarran’s case (Re Sarran (1969), 14 WIR 361) arose as a result of the refusal of Mitchell J, to grant an order nisi for certiorari after Sarran, a ward-maid employed by the Ministry of Health, had been dismissed from her employment consequent upon an enquiry into a charge that she was under the influence of alcohol whilst on duty to such an extent as rendered her incapable of performing her duties to the prejudice of discipline and the proper administration of the service. There Mitchell J, had on a motion refused to make an order nisi for the Permanent Secretary of the Ministry of Health to show cause why a writ of certiorari should not issue to remove the enquiry into the High Court for the purpose of being quashed.
Crane JA, delivered a written judgment, and it was with his views that I agreed. The other judgment, which was oral and later reduced into writing, came from Cummings JA. In interpreting art 125 (8) with particular reference to art 119 (6), Crane JA said ((1969), 14 WIR at p 364):
‘I believe the purport of art 125 (8) is quite clear. As I understand the matter, that article operates as a proviso to art 119 (6). It is in the nature of a proviso, I feel, because it preserves, by excepting out of art 119 (6), the ancient supervisory jurisdiction of the High Court in fit cases ‘to enquire and be informed’, which, but for art 125 (8), would not exist in view of that aspect of finality which appears in art 119 (6). Certiorari, then, as a means of invoking the supervisory jurisdiction of the High Court, is thus not excluded as a remedy once it is manifest on the record that what is really being questioned is the constitutionality or other legality of the exercise of functions delegated to the Permanent Secretary for a jurisdictional defect. This seemingly exclusionary jurisdictional clause in art 119 (6) is clearly designed to achieve non-interference by the Judiciary in matters of appointments to, and discipline in the Public Service - matters which the framers of the Constitution think, and rightly so, properly to be within the administration’s normal sphere of competence. The idea is that administration must not be unnecessarily impeded by resort to the courts to which in this case, there is no right of appeal. Administrative law and procedure, together with administrative discretion, are thus given free scope for
development; they are left unfettered to function within their own province, save for the right of the subject to the writ of certiorari, the constitutional safeguard provided in art 125 (8).’
And His Honour finally observed (ibid at p 367):
‘All that was sought and required of him (the trial judge) was an order nisi in circumstances which disclosed a clear prima facie case of excess of jurisdiction in the Permanent Secretary to delegate his constitutional powers to another.’
The court proceeded to allow the appeal and remitted the matter to the trial judge with directions that the writ should issue. I must take the opportunity of stating that in the report of this case as it appears in Vol 14 WIR at p 361, my concurrence in the words “I agree” should have been recorded after the written judgment of Crane JA, which I had seen, and not after the oral judgment of Cummings JA, which was only subsequently reduced into writing.
In the case of Evelyn v Chichester ((1970), 15 WIR 410) this court in three separate written judgments was unanimous in its conclusion approving of the quashing of an order of dismissal by certiorari. The respondent, a deck-hand employed on one of the vessels of the Transport and Harbours Department, a governmental concern, was dismissed by letter dated 25 November 1968, by the appellant, the General Manager of that department, after certain charges had been preferred against him, and was debarred from obtaining any further employment in that department. In consequence, the court was moved for certiorari to have the record of dismissal quashed and set aside on the ground that it was made contrary to law and offended certain legal principles, particularly those relating to natural justice. An order nisi was issued. The matter was considered and the application was successful when the trial judge made the order nisi absolute and quashed the record of dismissal. It was sought on appeal to reverse this order. The Solicitor-General, appearing for the appellant, in one of his arguments contended that the respondent after dismissal could claim no right to a judicial review as the Constitution provided none. Crane JA, in his judgment referred to Sarran (Re Sarran (1969), 14 WIR 361) and Langhorne (Re John Ewart Langhorne (1969), 14 WIR 353), and stated that both of these cases “fully recognise the constitutionality of the right to a judicial review by certiorari of such functions the exercise of which is tantamount to a usurpation or wrongful assumption of the jurisdiction for the reason that they are not “vested” under the Constitution (art 96 (6)).
Then Persaud JA, in his judgment referred to Langhorne (Re John Ewart Langhorne (1969), 14 WIR 353) and Sarran (Re Sarran (1969), 14 WIR 361), and said this about arts 119 (6) and 125 (8): ((1970), 15 WIR at p 428):
‘I agree with the interpretation given to the two articles in Langhorne and Sarran. The earlier article excludes from the province of the courts, the performance of functions by a Commission or its members, or by a person to whom any such function may be delegated, while the latter article vests in the courts jurisdiction to enquire into the question whether those functions are exercised in accordance with the Constitution or any other law. Surely this means that the authority exercising any function must be vested with the power to do so, and that the courts can enquire into the question whether or not the authority has that power, that is to say, whether it has the necessary jurisdiction, but are precluded from embarking into any enquiry as to the method of the exercise of a power that is duly vested.’ (My italics.)
And the view I formed was that (ibid at p 422):
‘The relevant provisions of art 119 (1) and (6) create certain barriers to avoid interference with the Commission’s constitutional functions. In the first instance, the prohibition is general; in the second, it is specific; but in announcing the ‘general’, an introductory warning is given at the outset to alert one that whilst the Commission’s functions under the Constitution ‘shall not be subject to the
direction or control of any other person or authority’ this will be subject to what is ‘otherwise provided’ in the Constitution. This proviso at the commencement of an article which deals with certain powers of the Commission, cannot be lightly ignored. It opens the way for the application of any relevant qualifying provisions, under the Constitution, which may be applicable to the general exclusion under art 119 (1) or the specific exclusion under art 119 (6). And it will be necessary now to resolve whether art 125 (8), through the saving provision of art 119 (1), does bequeath any specific jurisdiction which would enable a court to make enquiry not otherwise permissible under art 119 (6). The language of art 125 (8) is very clear. The jurisdiction which it seeks to make available is for a court to enquire:
(a) Whether a person or authority has exercised its functions under the Constitution in accordance with the Constitution ‘or any other law’.
(b) And this, notwithstanding that it may have been provided that that ‘person or authority shall not be subject to the direction or control of any other person or authority’, for this was not to be construed as precluding the court from exercising the jurisdiction expressly prescribed.
The nature of this express jurisdiction was to enure that if the Constitution or any statute law or unwritten law (bearing in mind that law under art 125 (1) ‘includes any instrument having the force of law and any unwritten rule or law’) prescribed a way in which the particular functions should be exercised, then the Courts were given the power to see that this was done accordingly.
In my opinion, therefore, on a true construction of articles 119 (1), 119 (6) and 125 (8), the Courts would be entitled to enquire:
(a) whether a function was truly vested under the Constitution in a Commission since a Commission would not be allowed to arrogate to itself what the Constitution did not wish it to have; and
(b) whether that Commission in the performance of that function acted in accordance with ‘law’ (statutory or unwritten) which actually governed the way of the exercise of the function to be performed.
This is all that seems to fall for decision on the point raised by the Solicitor General, and I do not wish to decide anything further, bearing in mind what was said by Brandeis J, amply supported by authority cited by him, when concurring in Ashwander v Tennessee Valley Authority (297, US 280, 346-48, 1936) that the court will not anticipate a question of constitutional law in advance of the necessity of deciding it, and that ‘it is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to the decision of a case’.
The General Manager’s order of dismissal was invalid because:
(a) He did not act in accordance with the requirements of an Ordinance which said that he should follow certain rules, which were essential in this case in order to give the respondent an opportunity of being heard in his defence after he had protested his innocence...
(c) It was competent for the court to enquire whether the ‘authority’ which dismissed him had acted in accordance with what the ‘law’ had decreed should apply when that function was being performed.’
In the result, the appeal was dismissed with costs.
The Solicitor-General argued exhaustively that the decision in Chichester’s case (Evelyn v Chichester (1970), 15 WIR 410) was given per incuriam; that there was a misunderstanding as to the relationship between art 119 (1), art 119 (6) and art 125 (8) of the Constitution; and that the court should not “delay its hand” in correcting an error of magnitude, which had caused a serious and unjustifiable disturbance in the distribution of constitutional power through unauthorised judicial interference.
Having had the benefit of very closely reasoned arguments, I would wish to take another look at the matter to satisfy myself whether I ought to feel myself obliged to retract any previous opinion, if I am free to do so. There can be little doubt that the Constitution intended the “Commissions” to have the benefit of certain protective barriers, behind which the “righteousness” of their decisions might not be called into question. Such an aura of “untouchability” allowed neither for appeals nor enquiry by courts.
But first there must be an entitlement for the “Commission” to enter upon the enquiry in question. As I said in Langhorne’s case (Re John Ewart Langhorne (1969), 14 WIR at p 356):
‘When art 96 (1) vested in the Commission the power to remove and exercise disciplinary control over public officers, it gave to that body the legal authority to do so, but of necessity it is required to act within the area of a jurisdiction subject to qualifications and conditions of exercise specified under the Constitution. If it does not act within the jurisdiction there delineated, then the protection afforded by art 119 (6) to prevent any enquiry into the validity of functions performed, would be unavailing, since the functions will not have been performed with due authority of law. The very language of art 119 (6) emphasizes this when it bars an enquiry by the courts on those occasions when any ‘function’ is ‘vested’ in the Commission ‘by or under the Constitution’. It is in the nature of a condition precedent that the function must so vest before the courts cease to have the right to enquire under this article. If, then, a question is raised as to whether in a particular case a function is or is not vested, this goes to the root of the Commission’s jurisdiction and so is properly justiciable by the courts without the aid of any other enabling provision.’
Provided then that there is no lack of jurisdiction ab initio, a “Commission” could, under the protective umbrella of art 119 (6), exercise its wide powers of discipline to the point of dismissing at will or pleasure, without being bound to disclose any reasons. Consequently, State servants, whose continuance in office is thought to be detrimental to the State and such as could seriously impede the working of the Public Service, could be summarily dismissed without reason, or enquiry from a court. If, therefore, no qualifying safeguard existed elsewhere in the Constitution, the impact of art 119 (6) would have left no opportunity for redress or remedy of any kind, under any circumstances, in view of the absolute nature of the prohibition, which expressly barred any attempt by the courts to carve out a “special jurisdiction” by specifically delimiting and denying such powers. Elsewhere in the Constitution similar articles purport to restrict judicial enquiries. (See arts 47 (5), 116 (4), 119 (1) and 124.)
But the Constitution, conscious as it must have been of having expressly ousted the court’s jurisdiction in such instances, contrived to utilize from the vantage point of an interpretation article, viz art 125 (8), a provision designated to allow for a limited intervention by the courts. Without it, the argument for the appellant in Evelyn v Chichester ((1970), 15 WIR 410) - that the respondent after dismissal could claim no right to a judicial review “as the Constitution provided none” - might well have found favour. With it, it could not. The Constitution was, with realism, carving out a “special” jurisdiction for the courts similar to that which the courts at common law possessed and exercised for centuries, viz, the right to enquire into and quash errors of law appearing on the face of the record. Its language is identifiable with the basic feature of this common law supervisory jurisdiction.
The motif behind the bestowal of this power is the same which inspired the common law to superintend and control the exercise of statutory powers to prevent certain kinds of misuse or abuse of power, and to control actions which were ultra vires. As, for example, where a person or authority had to decide
“rights”, after hearing evidence and opposition, its decision was required to possess two essential characteristics: (i) it must be within that person or authority’s jurisdiction, and (ii) there must be no error of law on the face of the record of what had taken place. In effect, the jurisdiction under art 125 (8) is a jurisdiction to check on the exercise of other “jurisdictions” not only for defects of jurisdiction, but for contravention of law.
The origin of this controlling power was the writ of certiorari, a special remedy devised for this purpose to command that the record of what is being questioned should be sent “forthwith to enable what of right and according to law” shall be “fit to be done”. The issue of this writ was such an essential and integral part of this control that it is difficult to think of “control” without “certiorari”. To test the propriety of proceedings by the supervision of certiorari would be a test which (in the words of Lord Sumner) “goes to two points; one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of the law in the course of its exercise”.
So great has been the urge of the common law to preserve the salutary effects of this jurisdiction that even when or where statute may provide that a particular determination “of a certain function” “shall not be called in question in any court of law” (a sort of no certiorari clause), yet a court will not be precluded from inquiring whether or not the “determination” was or was not a nullity, as, for example, whether it was made in accordance with the permitted jurisdiction or not. For, as Lord Wilberforce said in Anisminic v Foreign Compensation Commission ( 1 All ER 208,  2 AC 147,  2 WLR 163, 113 Sol Jo 55 HL, Digest Cont Vol C, 282, 2557b) ( 2 WLR at p 204):
‘The courts, when they decide that a ‘decision’ is a ‘nullity’, are not disregarding the preclusive clause. For just as it is their duty to attribute autonomy of decision of action to the tribunal within the designated area, so, as the counterpart of this autonomy, they must ensure that the limits of that area which have been laid down are observed (see the formulation of Lord Sumner in Rex v Nat Bell Liquors, Ltd ( 2 AC 128, 91 LJPC 146, 127 LT 437, 38 TLR 541, 27 Cox, CC 253, PC, 16 Digest (Repl) 469, 2897)  2 AC 128, 156). In each task they are carrying out the intention of the legislature, and it would be a misdescription to state it in terms of a struggle between the courts and the executive. What would be the purpose of defining by statute the limit of a tribunal’s powers if, by means of a clause inserted in the instrument of definition, those limits could safely be passed?’
And Lord Reid in the same case made this authoritative pronouncement (ibid at p 170):
‘... there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly.’
In like manner, in my view, art 125 (8) has succeeded in preserving the salutary effect of this jurisdiction. It has within its stated limitation qualified the impress of finality elsewhere appearing.
To revert to the instant case, the Commission could have dismissed the appellants, if it had wished to do so, at their pleasure without assigning any reason, and under art 119 (6) it would have been immune from review by any court except on the ground of lack of jurisdiction. But it was not prepared to do so. Instead, its wish was to enquire whether in fact cause existed to justify this step. Dismissal was to be conditional upon proof of specific charges laid. In this, it must act according to law in the sense that the question remitted must not be decided after the commission of any such fundamental errors as were remarked upon by Lord Reid (supra) so as to render the enquiry a nullity, without which, as was said, it would be as much entitled to decide the question “wrongly”, as it is to decide it ‘rightly”. The Commission has, by its own decision and act in having an enquiry to determine whether there is cause for dismissal or not, dragged the matter from the sanctum of untouchability into the area of reviewability within the limits contemplated by art 125 (8). Had there been a dismissal at will, albeit in secret, that would have been “according to law” and an end to the matter, but as that course was not adopted, the door is left open to enquire of the court whether the enquiry in itself was in accordance with the Constitution or law. If those proceedings are regular on their face, and there was power to hold the enquiry, the decision will be unchallengeable. But if such “error of law”, in the wide jurisdictional sense appears, intervention becomes permissible.
Put another way, the Commission had predetermined (as it had the right to do) that to found dismissal the procedural requirement of investigation into specific charges was essential. It was, in effect, unwilling and unprepared to exercise that complete and unfettered discretion of dimissal without reason and without hearing, which it would have been its privilege to do if subsections (1) and (6) of art 119 are to have any real meaning. Instead, it saw fit to restrict its powers of dismissal for cause only and after due process. Inherent in this self-imposition would be to observe “jurisdictional” prerequisites, which, if appearing to be breached, might be sufficient to call for the intervention of the courts through art 125 (8) to determine whether there had been an exercise of functions “in accordance with the Constitution or any other law”.
When, therefore, art 125 (8) adopted the amplitude of this common law jurisdiction, it must be taken to have also imported into and incorporated within its framework what, ab initio, was so inextricably bound up with this concept as to form part and parcel of it, viz, the writ of certiorari - the living force behind this form of supervision without which its existence would have been a mockery, and the constitutional provision of art 125 (8) would have had but “a hollow ring”.
When an act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution, cui jurisdictio data est, ea quoque concessa esse videntur, sine quibus jurisdictio explicari potuit.
When in a Constitution there is a “power” to secure a “purpose”, does not the Constitution also intend to imply that in the absence of a stated remedy such means should be adopted as are necessarily incidental and proper to the exercise of that “power”? I would hardly doubt that this must be so. The principle was well enunciated by Marshall CJ in his famous statement in McCullock v Maryland ((1819), 7 US (4 Wheat) 316) ((1819), 7 US (4 Wheat) 316 at p 421):
‘Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.’
I would like to repeat again.. Review in this case, in the words of Professor Wade, (Administrative Law 3rd Edn, p 53) “is based not on the merits but on the legality of the lower authority’s proceedings. At the root of the matter is
jurisdiction or, more simply, power. The principle is that if an administrative authority has acted within its jurisdiction or intra vires and no appeal from it is provided by statute, then it is immune from control by a court of law.. Judicial control, therefore, primarily means review and is based on the fundamental principle inherent throughout the legal system that powers can be validly exercised only within their true limits”.
The subject affected by the decision of an authority (such as the Public Service Commission) is, therefore, entitled to apply to the High Court of the Supreme Court of Judicature for a review of the particular authority’s exercise of power on the ground of some initial jurisdictional defect, or what appears on the face of the record as an error of law if there was an enquiry (as in this case). For the essence of such control would be to see that the authority keeps within its proper constitutional limits and does not commit what in law would nullify the proceedings.
I am of the view, therefore, that art 125 (8) provides for a jurisdictional remedy by application to quash an order for error on the face of the record by means of a writ of certiorari Mr Gibson’s legal right, therefore, to act and have audience should not be disturbed.
The other point remaining for consideration is the preliminary objection by counsel for the respondent. The question raised and reserved for consideration was: Is this appeal invalidated because it was launched by Mr Gibson, a barrister, who signed the notice of appeal in the capacity of “barrister acting as a solicitor”?
It is expressly provided under O 2, r 1 (1) of the Federal Supreme Court (Appeals from British Guiana) Rules, 1959 [G], that “all appeals shall be by way of re-hearing and shall be brought by notice (hereinafter called the “notice of appeal”) ... and be signed by the appellant or his legal representative”. “Appellant” (under O 1, r 2 (1)) “means the party appealing from a judgment, conviction, sentence or order and includes his legal representative”, unless it is expressly provided to the contrary or the context otherwise requires. “Legal representative”, under the same Order, means “any barrister or solicitor admitted to practice as such in any part of British Guiana, whether or not he has the right to audience in the Court”.
Mr Gibson’s status as a barrister is beyond question. He had hitherto practised as such before this court, was actually allowed to appear and address in this case in that capacity, and signed the notice of appeal as such with the additional words “acting as solicitor”. It is said that he should have signed as “barrister-at-law” simpliciter, and that then and only then would he have been truly the appellant’s “legal representative”. I shudder to think that the disastrous consequences of invalidation could be the penalty of a mere misdescription (if indeed it is), when in actuality the barrister’s right to sign the document exists beyond dispute. An analysis must be made to determine (a) whether there was any contravention of law in what was done, and, if so, (b) what consequences should ensue.
If Mr Gibson had signed as “legal representative”, in my view there would have been due compliance with the particular rules. Under O 1, r 3, “the forms set out in the appendices” to the Rules, or “forms as near thereto as circumstances permit, shall be used in all cases to which such forms are applicable”. In Civil Form 1, which comes under O 2, r 1 (1), provision is made at the bottom of the form for the insertions of a signature to identify the appellant or appellants. If the appellant does not himself sign, then the alternative signature must be that of a “legal representative”, as this is what the rule says, and the form must consequently be amended by substituting “legal representative” for “appellant” to permit of this circumstance. As the person signing under the designation of “legal representative” must be a “barrister or solicitor admitted to practise as such” in
any part of this country, it is the fact of admission to practise in either of the two categories which is so vital and vests in the particular person the qualification necessary to assume the mantle of a “legal representative”. Under the Legal Practitioners Ordinance, Cap 30 [G], s 41, the same effect is produced but not from the same words. There, “barrister” means a person admitted to practise as barrister, and “solicitor” a person admitted to practise as a solicitor under the ordinance. Anyone then who purports to sign under the cover of “legal representative” will have to be certain of one thing, and that is that he is either a person admitted to practise as a barrister, or a person admitted to practise as a solicitor. Once he is in a position to satisfy this aspect, he is free to sign as “legal representative”, for as the rule stands, he is under no obligation when launching an appeal to sign in any other style, manner or form. But if he does not elect to utilize the designation of “legal representative”, he must declare his particular capacity, or so much of it as would bring him within the definition of his entitlement to act. The form in which this was supplied was “Barrister-at-Law acting as solicitor for the applicants/appellants”. It purports to indicate that he was possessed of a certain legal capacity and was acting in a certain way “for the appellants”. In its three component parts, this is conveyed:
(a) that he was a “barrister-at-law”, from which could be legitimately inferred that he was a person admitted to practise as such;
(b) that in performing the function of signing the notice of appeal, he was doing so “acting as solicitor”; and
(c) that this act was “for the appellants”.
The argument which seeks to deprive the appellants of an adjudication on the merits of their appeal amounts to this: although Mr Gibson is a barrister, his right to be the “legal representative” of the appellants could only arise if he purports to act in this capacity, and so it was obligatory for him to sign as a barrister-at-law, no more no less. When therefore he purported to be “acting as solicitor”, he was (a) introducing a capacity not recognised by the definition of “legal representative”, which spoke only of a “barrister or solicitor admitted to practise as such”, and (b) was virtually placing himself within the category of a solicitor when he was admitted to practise as a “barrister”, and not as a “solicitor”. This argument is, in my view, fallacious. As soon as Mr Gibson described himself as a barrister, thereby implying that he was admitted to practise as such, this fact, undisputed as it was, immediately established his right to be identified as belonging to one of the two classes which comprise the category of a “legal representative”.
Eligibility to serve as a “legal representative” arises from the fact of admission to practise as “barrister” or “solicitor”. This claim could be made in a general way be utilizing the designation under the rule (“legal representative”) or in a specific way by claiming to belong to one or other of the two classes (“barrister” or “solicitor”). More than this is not required. The signature, therefore, specifying “Barrister-at-Law for the appellant” would satisfy what is prescribed.
That was done in this case, except that an attempt was made to expand what could not have been more amply stated by interjecting the interpretative conclusion “acting as solicitor”. If the object was to state that the act performed was one normally performed or expected to be performed by a solicitor here or in England, then despite its accuracy it was unnecessary and extraneous to the designation of or implicit in what is prescribed. If the object was to state a conclusion of law or what is implied by law, then in the instant case such a conclusion does not apply and is misconceived.
As soon as Mr Gibson set it down (after signing the notice) that he was a “barrister”, at once this capacity gave him the entitlement to act, and the further
designation “acting as solicitor” became superfluous, unnecessary, extraneous and immaterial. This surplusage cannot affect the capacity which goes with him as a “barrister”. His right to act is not affected by any consideration other than the fact of his admision to practise in this country as a barrister, which is not disputed. This surplusage is incapable of reducing the notice to a nullity. I would only wish to refer to such relevant maxims as: non solent quae abundant vitiare scriptures (surplusage does not vitiate writings); superflues non nocent (superfluities are pointless); and utile per inutile non vitiatur (that which is useful is not marred by that which is useless).
I would rule, therefore, that no merit exists in the objection taken in limine in this court, and that the appeal is justiciable.
In the result, therefore, I would find that the proceedings before Mitchell J, were struck out without any valid reason; that Mr Gibson was entitled to make the application in question by way of originating motion; that it would be at the discretion of the trial judge to grant or not a further opportunity to the Public Service Commission to comply with the order made by Vieira J; but that in any event the proceedings must in due course be heard, after which that court will decide what relief, if any, should be granted.
I would accordingly remit this matter for hearing to the same judge, or any other if this judge is not available. The appellants would be entitled to their costs of this appeal.
PERSAUD JA. When this matter was first argued in this court, two points were taken; and these were whether the notice of appeal which brings this matter to this court was properly signed; and if it was, whether the notice of motion by which these proceedings were launched ab initio was properly signed. If the answer to the first question is in the negative, then that would be an end to this appeal, as in those circumstances, there would really be no appeal before this court.
But before dealing with those questions, I had better set down the relevant facts. A motion was taken out at the instance of the two appellants who are described therein as Rural Postal Assistants in the employ of the Ministry of Communications for an order or rule calling upon the Public Service Commission and one Mr AR Brutus to show cause why a writ of certiorari should not issue to remove an enquiry into the High Court in order that an order of dismissal may be quashed. That motion paper was signed by Mr BE Gibson, “Barrister-at-Law acting as solicitor for the applicants”, and was supported by an affidavit sworn to by the applicants, which affidavit also contained an authority to solicitor in these terms: “... we hereby authorise Mr BE Gibson Barrister-at-Law to be our Solicitor in the matter ...”.
The motion was heard, Mr Gibson appearing uninstructed, and it was held, upon a submission made by counsel who appeared for the Commission, that a barrister cannot lawfully act alone in making the application by way of motion for a writ of certiorari and have audience before the High Court without there being a solicitor on the record. The motion was struck out on 22 June 1970. An appeal motion bringing the matter to this court was then filed and signed by Mr Gibson “Barrister-at-Law acting as solicitor for the applicants/appellants”. On 31 October 1970, Mr Lennox Arthur, one of the appellants, authorised Mr T A Morris, a solicitor, to act for him; for some unexplained reason the other appellant did not sign the document. So it would appear that Mr Gibson continued to act as a “Barrister acting as a solicitor” so far as Mr Hermanstyne was concerned. Subsequently, when the appeal came on for hearing, two sets of amended grounds of appeal were filed on behalf of both appellants; in the first
case the grounds proper were signed by Mr Morris as solicitor for the appellants, while attached to these grounds was a document intituled “References and Authorities” signed by Mr Gibson in his capacity as a barrister-at-law. The second set of grounds filed and argued was signed by Mr Morris as “Solicitor for Appellant”. Perhaps it was never the intention of the authors of those documents to add confusion to an unsettled situation, but they have succeeded beyond expectation, as a result of which, when Mr Gibson appeared in this court to argue the appeal, he appeared in a dual capacity, viz, as a barrister instructed by a solicitor for Mr Arthur, and as a barrister acting as a solicitor for Mr Hermanstyne. It seems to me that the appellants’ legal advisers were themselves unsure of the true position, but sought to have one foot on either bank, so to speak, in an effort to comply with the law. However, notwithstanding the state of uncertainty, the appeal surrounded the simple points whether a barrister can sign a motion paper as barrister acting as solicitor, and whether he can sign a notice of appeal also in that capacity. Mr Rahaman took the latter point in limine but it was thought that the better course would be to have both points argued in full. I will deal with the notice of appeal first.
For purposes of the first point, I shall endeavour to trace the position of a barrister appearing in this court and a useful starting point is the position under the West Indian Court of Appeal Act 1919 (9 & 10 Geo 5, c 47), for if it is found that this court has been substituted for the West Indian Court of Appeal in s 43 of the Legal Practitioners Ordinance, Cap 30 [G], it would follow that the notice of appeal, signed by Mr Gibson as “barrister-at-Law acting as solicitor” is bad with the result that the appeal has not been properly launched, and this court would have no jurisdiction to hear the matter.
The West Indian Court of Appeal was established under the West Indian Court of Appeal Act 1919, but when the Federation of the West Indies was established in 1957, art 3 of the West Indies (Federation) Order in Council 1957 (SI 1957 No 1364) provided that no appeal shall lie from a Superior Court of any Territory to the Court established by the West Indian Court of Appeal Act 1919, in any case in which, by virtue of a law enacted under art 83 of the Constitution, an appeal lies to the Federal Supreme Court. Article 83 empowered the Federal Supreme Court to hear appeals from the superior courts of any territory. Of course it is a historical fact that Guyana (British Guiana it was then) was not one of the scheduled territories under the British Caribbean Federation Act 1956 (4 & 5 Eliz 2, c 63), nor did it ever become part of the Federation. But by virtue of s 2 of that Act, the British Guiana (Appeals) Order in Council 1957 (SI 1957 No 1527) was made to confer on the Federal Supreme Court jurisdiction to hear and determine appeals from British Guiana in substitution for the jurisdiction conferred by the West Indian Court of Appeal Act 1919. Section 3 of the 1957 Order in Council vested the Federal Court with jurisdiction to hear and determine appeals from any superior court of British Guiana, “and in connection with such appeals, such powers and authorities as may be conferred upon it by any law of the Legislature of the Colony”. And in 1958, the Legislature of British Guiana enacted such a law in the form of the Federal Supreme Court (Appeals) Ordinance, 1958 No 19, which had as its object “to confer on the Federal Supreme Court of the West Indies jurisdiction to hear and determine appeals from the Supreme Court of British Guiana and for matters connected therewith”. That ordinance, under which this court continues to operate, gave to the Federal Court jurisdiction to hear both civil and criminal appeals, and for purposes of this discussion, it is not without importance to recall the provisions of s 4 which enacts:
‘Subject to the provisions of rules of court regulating the practice and procedure of the Federal Supreme Court, the Court (meaning the Federal Court) shall, in the hearing and determination of an appeal from a decision of the
Supreme Court, apply to such appeal the law which was applicable to the case in the Supreme Court.’
Here it can be seen that an attempt was being made to provide for a possible separation of the rules of practice and procedure from the substantive law, and while the latter remained the law of British Guiana, the former was being welded into one comprehensive code to apply to all appeals to the Federal Court.
But that apart, s 7 (1) (a) and (b) (ii) of the British Guiana (Appeals) Order in Council 1957 enabled the Chief Justice and any two other judges of the Federal Supreme Court generally to make rules of court for regulating the practice and procedure of that court in exercise of the jurisdiction conferred on it under the Order, and particularly “for regulating the right of practising in the Federal Supreme Court and the representation of persons concerned in any proceedings in the Court”. Pursuant to s 7 above, the Federal Supreme Court (Appeals from British Guiana) Rules 1959 (SI 1959 No 8) were made, and came into operation on 1 April 1959.
I will return to the meaning of that definition, and the effect of Mr Gibson’s signing of the notice of appeal as barrister acting as solicitor, as I must continue with the historical aspect of the matter.
Unfortunately, there came a time in 1962 when it was deemed necessary to dissolve the Federation of the West Indies. Of course, this meant that the Federal Court must also go. So the West Indies Act 1962 (10 & 11 Eliz 2, c 19) was passed providing for the dissolution of the Federation, and empowering Her Majesty to establish a court in place of the Federal Supreme Court by Order in Council. This was effected by the British Caribbean Court of Appeal Order in Council 1962 (SI 1962 No 1086) made on 23 May 1962, establishing the British Caribbean Court of Appeal. Of course, it was not necessary to make specific reference to British Guiana. In that Order “the existing Court” was defined to mean “the court constituted by the Constitution of the West Indies”, and there was a provision (art 6) similar to s 7 of the British Guiana (Appeals) Order in Council 1957 (already referred to in this judgment). In addition, as is to be expected in legislation of this nature, something was done to retain the force of the existing laws and rules. Article 12 of the 1962 Order in Council provided:
‘(1) Any law in force in any Territory immediately before the commencement of this Order providing for appeals from the Courts of that Territory to the existing Court and matters relating thereto shall, subject to amendment or repeal of a law of the Legislature of that Territory or by rules made under article 6 of this Order, continue in force in that Territory after the commencement of this Order but shall have effect as if it was a law enacted in pursuance of article 5 of this Order and for that purpose shall be construed with any necessary adaptations and modifications.
(2) All rules of court, relating to the hearing and determination of appeals from the courts of each Territory by the existing Court in force immediately before the commencement of this Order shall, subject to amendment or revocation by rules made under article 6 of this Order, continue in force after the commencement of this Order and shall have effect as if they were rules made under article 6 of this Order and for that purpose shall be construed with any necessary adaptations and modifications.’
Thus it will be seen that the British Guiana (Appeals) Order in Council 1957, the Federal Supreme Court (Appeals) Ordinance, 1958 No 19, and the Federal Supreme Court (Appeals from British Guiana) Rules 1959 (SI 1959 No 8) were all saved, and would have continued to have full force and effect until this country became independent in 1966, unless amended, repealed or revoked. There
were amendments to the Rules in 1960, but no repeal or revocation, and those amendments in any event did not pertain to legal representation.
In 1966, Guyana became an independent country by virtue of the Guyana Independence Act 1966, and the Guyana Independence Order 1966 (SI 1966 No 575) removed “British Guiana” from the British Caribbean Court of Appeal Order 1962, as amended. Section 5 of the 1966 Order saved all existing laws. It is perhaps superfluous to say that this court is constituted under art 83 of our Constitution. And to complete the picture, the Guyana Independence (Adaptation and Modification of Laws) (Judicature) Order 1966 (SI 1966 No 37) which was made pursuant to s 5 (4) of the Guyana Independence Order 1966, and which came into operation on 26 May 1966, provided for the substitution in every enactment (which includes any rule or regulation) in force immediately before the commencement of the Order, of Court of Appeal, Registrar, Deputy Registrar, registry or seal of the Supreme Court of Judicature for Caribbean Court, Registrar, Deputy Registrar, registry and seal.
And it is in this manner that this court has inherited the Federal Supreme Court (Appeals from British Guiana) Rules, 1959. Order 2, r 1 (1) of those rules provides that all civil appeal shall be by way of re-hearing, and shall be brought by notice signed by the appellant or his legal representative. Legal representative is defined by O 1, r 2 (1) to mean “a barrister or solicitor admitted to practise as such in any part of [Guyana] whether or not he has the right of audience in the (Appeal) Court”. This must mean that either a barrister or a solicitor can sign the notice of appeal, but that a barrister must sign qua barrister and a solicitor qua solicitor. In signing the notice “Barrister-at-law acting as solicitor”, Mr Gibson was seeking to cloak himself with the rainment of a solicitor which he could only do by virtue of ss 42 and 44 of the Legal Practitioners Ordinance, Cap 30 [G], but those sections are irrelevant to a notice of appeal. There was no necessity for him to have signed as he did, as he could have signed in his own right, that is, as a barrister. What then is the effect of what he has done? Does it make the notice void and of no effect, or are the words “acting as a solicitor” mere surplusage? It would be strange, indeed, were we to hold that the notice of appeal is a nullity when the barrister could have signed in his own right, but instead he purported to do so in another capacity which, if he were that also, he could have signed. I would hold, therefore, that the additional words were mere surplusage, and that the notice was valid.
This takes me to the second, and, I believe, more important question. Could Mr Gibson have signed the motion paper as barrister acting as solicitor? Mr Gibson has sought shelter both under s 31 of the Civil Law Ordinance, Cap 7 [G], and under the Legal Practitioners Ordinance, Cap 30 [G].
Section 31 (1) of the Civil Law Ordinance provides for the granting of a mandamus or injunction or the appointment of a receiver in all cases where it appears to the court to be just or convenient that that order should be made; and O 38, r 1 of our Rules of Court provides that an application for such a remedy may be made either to the court or a judge by any party. It is the argument of counsel that mandamus, injunction and certiorari are of the same category of remedies; that s 31 (1) of Cap 7 must be taken to be impliedly bestowing the right to apply for a writ of certiorari, and if this is so, then under s 42 (1) B (f) of Cap 30, which enables a barrister to act alone “in any application under any Ordinance providing for the making of an application for any relief or remedy”, he could properly have signed the motion paper as “barrister-at-law acting as solicitor”. Another way of putting counsel’s argument is that his client is seeking a statutory remedy provided for by s 31 (1) of Cap 7. To succeed on this point, as on the point to be considered next in this judgment,
counsel must of necessity rely exclusively on the assumption that the remedy he seeks is a statutory one. Counsel sites R v Lympne Airport Chief Immigration Office, Ex parte Amrik Singh ( 3 All ER 163,  1 QB 333,  3 WLR 945, sub nom R v Chief Immigration Officer, Ashford Airport, Ex parte Amrik Singh, 112 Sol Jo 657, DC, Digest Cont Vol C, 20, 157v) to support his contention that the remedies are of a similar nature. In that case, there was a motion for an order of certiorari to bring up and quash a decision of an immigration officer, and counsel was given leave to move for an order of mandamus as well, for, to use the language of Lord Parker CJ ( 3 All ER at p 163): “In the course of the argument it became plain to this court that an order for mandamus, if not the proper remedy, was at any rate a necessary remedy in addition to certiorari.” In my opinion, it is clear that the application in that case was not seeking a statutory remedy under s 31 (1) of Cap 7, but rather the high prerogative writs. Indeed, I can find no authority, and I believe counsel has conceded that he has found none, where there is statutory provision for certiorari, unlike the case of mandamus. In both Coghlan v Vieira ((1958) LRBG 108), and Glossop v Heston Local Board ([1874-80] All ER Rep 836, (1878) 47 LJ Ch 536, 26 WR 433, 22 Digest (Repl) 515, 5733), the question of statutory mandamus was discussed, and the distinction between that remedy and the prerogative mandamus was adverted to.
Counsel’s submission is of no merit when regard is had to the words of s 31 of Cap 7. Certiorari is not mentioned in the section, so to accede to the submission, one must read it in. But when one examines the purpose of the section, viz, to prevent any threatened or apprehended waste, injury, or trespass, it is easy to see that it is most inappropriate to include certiorari in that section. The very nature of such an order precludes this notion. “The order of certiorari issues out of the High Court, and is directed to the judge or other officer of an inferior court or record. It requires that the record of the proceedings in some cause or matter pending before the inferior court shall be transmitted into the High Court to be there deal with, in order to ensure that the applicant for the order may have the more sure and speedy justice” (11 Halsbury’s Laws (3rd edn) para 230). The applicants in this case can go to the High Court, as indeed they have done, to obtain an order of certiorari to remove certain proceedings into the High Court, but I would be surprised if they can approach a court for an order of certiorari to “prevent any threatened or apprehended waste, injury or trespass”. It is my view, therefore, that s 31 (1) of Cap 7 does not entitle the applicants to move the court for an order of certiorari, and I am fortified in this view upon an examination of O. 38 of the Rules of the Supreme Court [G], the provisions of which are clearly intended for the preservation of the subject-matter of a dispute engaging the attention of the courts.
In order to deal with the second point under review, additional arguments were invited from both sides. Those arguments were substantially enlarged to embrace a wider compass than was at first envisaged, and arose out of a letter emanating from this court to the parties inviting submissions on the question “Whether the proceedings before the High Court should properly come within s 42 (1) B (f) of the Legal Practitioners Ordinance, Cap 30, and/or be described as an application for a relief or remedy under the provisions of art 125 (8) of the Constitution of Guyana, especially having regard to the decisions of the Court of Appeal in Re Sarran (1969), 14 WIR 361, and Evelyn v Chichester (1970), 15 WIR 410”.
Much research as a result went into this matter, and I for one am greatly indebted both to Mr Hughes (who came into the matter at this stage) and the Solicitor-General for their industry and presentation of their respective cases; but when all is said and done, the two points that remain to be determined are, firstly (and this is subject to the observations I make below), whether the word “Ordinance” which appears in s 42 (1) B (f) of the Legal Practitioners Ordinance, Cap 30 [G] would include the Constitution of Guyana, and if it does not, whether déhors the Ordinance, but by reason of the history of Cap 30, as traced with
great care before us, can it be concluded that a barrister has the authority to sign a motion paper. For my part, I cannot see that either of the two cases referred to above has much relevance to the discussion in hand, but more of this later.
Section 42 (1) B (f) of the Legal Practitioners Ordinance reads thus:
‘Notwithstanding anything to the contrary in any Ordinance or rule, a barrister or solicitor shall be entitled to act alone and have audience in Court (meaning the High Court) in any application under any Ordinance providing for the making of an application for any relief or remedy.’
I wish to make a preliminary observation at this juncture, and that is, I cannot accept that from the language used in art 125 (8) of the Constitution it can be said that it “provides for the making of an application for a relief or remedy”. I understand the words used in s 42 to mean there must be express provision. In my view, the words used must be given their natural meaning, and they mean what they say: there must be provision in the ordinance concerned for the making of an application; not that such provision can be implied from the language used. There must be such provision totidem verbis. I am not unmindful of the observations made by this court in Re Langhorne (Re John Ewart Langhorne (1969), 14 WIR 353) and in Re Sarran ((1969), 14 WIR 361) as regards the interpretation to be placed on art 125 (8), and my own agreement thereto in Evelyn v Chichester ((1970), 15 WIR 410). In those cases, as I apprehend them, the question was whether the courts had jurisdiction vested in them by virtue of the article to investigate whether certain functions were performed lawfully. If I may be permitted to quote from my own judgment in Evelyn v Chichester ((1970), 15 WIR 410), perhaps the position as I saw it would be made clear. There, after agreeing with the interpretation placed upon arts 119 (6) and 125 (8) in the previous cases, I said ((1970), 15 WIR at p 428):
‘The earlier article excludes from the province of the courts, the performance of functions by a Commission or its members, or by a person to whom any such function may be delegated, while the later article vests in the courts jurisdiction to inquire into the question whether those functions are exercised in accordance with the Constitution or any other law. Surely this means that the authority exercising any function must be vested with the power to do so, and that the courts can inquire into the question whether or not the authority has that power, that is to say, whether it has the necessary jurisdiction, but are precluded from embarking into any inquiry as to the method of the exercise of a power that is duly vested.’
In none of the cases mentioned did the question arise, in so many words, whether art 125 (8) made provision for the making of any application for relief or remedy. What I understood those cases to be saying was that that article vests the courts with a certain jurisdiction to be distinguished from art 119 (6) which precludes the courts from investigating certain matters. But, and I say this with great respect to the other judges concerned in those cases, there was nothing in the language they used upon which I can say that they were of the view that art 125 (8) itself provided in so many words for the making of an application for a relief or remedy. To use the language employed by learned counsel for the appellants during the course of the argument in this case, and with which observations I entirely agree, the application for the writ is not an application under the Constitution: it is an application under the general law, but made by virtue of art 125 (8) of the Constitution.
With that reservation, I will accept that if art 125 (8) is to have any meaning, it must be implied that any party who wishes to avail himself of the protection which it gives him, must be able to approach the court in a manner appropriate to the matter in hand. I would, by applying a parity of reasoning applied by the Privy Council in Jaundoo v Attorney-General of Guyana ((1971), 16 WIR 141) to art 19 of the
Constitution, say that once there is a provision in the law which gives an individual the right to approach a court of law, but no procedure is elaborated whereby that right can be pursued, then the existing procedure which is appropriate must be followed. This is what I believe Crane JA, had in mind when he said in Re Sarran ((1969), 14 WIR 361) that certiorari is not excluded as a remedy once “it is manifest that what is really being questioned is the constitutionality or other legality of the exercise of the functions delegated... for a jurisdictional defect”. But this is far from saying that the article “provides for the making of an application for a relief or remedy”.
But the arguments continued, and so there remains the question whether the Constitution can be regarded as an ordinance within the meaning of s 42.
I suppose it can with truth be said that that which is ordained by the authority having the power so to do can be described as an ordinance. Before Parliamentary Government based on modern constitutional theory was introduced in England, the authority having such power was the King. Edicts issued by the King came to be known by several names, such as constitutio, provisio, ordinatio, statutum, etc. But the word “statute” to mean a specific type of legislation did not come into common use until the end of the thirteenth century, and the two expressions “statutum” and “ordinatio” became equated. The modern concept of statute law was defined by Coke as measures which have received the threefold assent of Kings, Lords and Commons, and ordinances came to be applied to enactments which lacked the threefold assents. This is how the matter is put in Anson’s Law And Customs Of The Constitution (1911), p 243:
‘The Ordinance is put forth in letters patent or charter and is not engrossed on the Statute Roll; it is an act of the King or of the King in Council; it is temporary, and is revocable by the King or the King in Council. The Statute is the act of the Crown, Lords and Commons; it is engrossed on the Statute Roll; it is meant to be a permanent addition to the law of the land; it can only be revoked by the same body that made it and in the same form.
The Ordinance in fact seems to follow the form of legislation which was in use when the Crown in Council discharged both legislative and executive functions.’
In his preface to his Statute (1735), Hawkins wrote:
‘Many ancient statutes are penned in the form of charters, ordinances, commands, or prohibitions from the King without mentioning the concurrence of Lords or Commons, yet inasmuch as they have always been acquiesced in as unquestionably authentic this establishes and confirms their authority, and this defect is solved by such universal reception.’
It is apparent that even though at one time terms to describe legislation were used indiscriminately, it soon became the practice to reserve the description ‘statute’ for legislation enacted by Parliament, and ‘ordinance’ for laws falling short of that process. (See Coke, 1 Inst 159 b.). An example of the latter type is the Universities (Scotland) Act 1899, which gave Commissioners the authority, if they thought fit, to make ordinance for certain purposes. See Metcalfe v Cox ( AC 328). In that case it was said by Lord Herschell, that the word “ordinance” was an apt word to donate the document which embodied the orders of a quasi-legislative body such as the Commissioners were. It would seem that as early as 1278 when the first statute roll was prepared, the expression “statute” came to be used exclusively to describe the enactments of Parliament, and there can be little doubt that ultimately the term “ordinance” came to refer to laws enacted by colonial legislature. In any event, such were the Royal Instructions of 1831 issued to the Governor of British Guiana (as it then was) wherein it was specifically stated “that no other style or form shall ever henceforth be observed in any such
enactments...”. The Royal Instructions of 1928 carried a similar admonition in that art xii (1) provides as follows:
‘In making the laws the Governor and the Legislative Council of the Colony shall observe, as far as practicable, the following Rules-The Style of enacting laws shall be ‘Ordinances’ enacted by the Governor of British Guiana, with the advice and consent of the Legislative Council thereof.’
Section 42 of the Legal Practitioners Ordinance was enacted in 1931, and I am of the opinion that the Legislative Council must be taken to have been aware of the Royal Instructions and of the use to which the term “ordinance” was to be put, and must have intended it to bear the same meaning as it did in the Royal Instructions. Indeed, I very much doubt whether the Legislative Council had the legal authority to have designated a measure which they advised and consented to as anything other than an Ordinance, and if it had been intended that the term should include other matters, then it was open to the draftsman of s 42 in 1931 to have enlarged the scope. He did not see fit to do so, and in any judgment, it cannot now be extended.
But it has been suggested that the definition of the word “statute” in the Interpretation Ordinance, Cap 5, s 5 may have the effect of extending the meaning. That section, which seeks to give certain meanings to certain expressions in future Ordinances, enacts:
‘In this Ordinance and in every Ordinance passed after the commencement of this Ordinance... unless the contrary intention appears-‘statute’ means any Ordinance or Act of Parliament for the time being in force in the Colony, and includes any order of the Queen in Council, rule or regulation, order of the Governor and Legislative Council, or by-law for the time being having force of law therein.’
It is to be observed that both the expressions “means” and “includes” are used. “Means” is prima facie restrictive, whereas “includes” is extensive in that it seeks to give to the expression being defined a meaning which that expression does not ordinarily bear, but must bear for the purposes of the particular ordinance. So that s 5 merely extended the meaning of the word “statute” to include things like Orders of the Queen in Council which are not really statutes in the true sense, but it certainly does not equate such an order with an ordinance, the meaning of which has already been indicated in the Royal Instructions. All that s 5 means is that wherever the word “statute” is used, it must be taken to refer to all kinds of legislation - main and subsidiary - but nothing more. It could not, for example, mean that because a statute shall mean an ordinance, an ordinance shall mean an Order of the Queen in Council. Indeed, when other provisions of Cap 5 [G] are examined, eg, ss 12, 13, 14, 15, 16, and 17, it becomes quite evident that it was always intended that the expression “ordinance” was to have a restricted meaning, that is to say, it referred to enactments passed by the Legislative Council of the country. I am of the view, therefore, that the Constitution of Guyana which forms part of the Guyana Independent Order 1966, made by the Queen in Council, is not an ordinance within the meaning of s 42 of the Legal Practitioners Ordinance, Cap 30, and is not caught thereby.
But once more the age old question raises its head, viz, in what circumstances, generally speaking, and having regard to the provisions of Cap 30, can a barrister practise as a solicitor, and if the signing of a motion paper is the function of a solicitor, has a barrister such a right as a result of the historical position of the legal profession in this country culminating in the existing legislation?
The history of the legislation has been traced with great care both by Mr Hughes and the Solicitor-General. It would appear that prior to 1897 the profession was a fused one. (See Mahabeer v Singh (1966), 9 WIR per Stoby C, at p 477.)
In that year the Legal Practitioners Regulation Ordinance, 1897 No 18, was enacted to regulate the admission of barristers and solicitors. That ordinance (s 9 (2)) recognised the situation as existing in which a barrister could practise as a solicitor (see Sirikissun v Fernandes ((1923), LRBG)) and provided that what constituted practising as a solicitor shall be set out in rules to be made by the judges. In 1898, the judges of the Supreme Court made rules defining what practising as a solicitor meant. That portion of the rules relevant to the discussion in hand defined practising as a solicitor to mean:
‘(1) The undertaking, transacting, or carrying on for or on behalf of any other person of any proceeding in any suit or action or of any business whatsoever whether the same be of a contentious or non-contentious nature before any Court, Judge, or Magistrate, or in the offices of any Court, Judge, or Magistrate.
Provided always that no barrister who performs or does any of the acts, things or matters hereinbefore set forth on the instructions of a solicitor who is acting on behalf of another person shall be thereby deemed to be practising as a solicitor:
And provided also that whilst appearing before any Court, Judge or Magistrate to plead or argue in any proceeding whether civil or criminal, no barrister shall be deemed to be practising as a solicitor:
And provided also that no barrister who signs any pleading or other document required by any Rule of Court for the time being in force to be signed by a barrister or solicitor shall be deemed thereby to be practising as a solicitor.’
Mr Hughes contends that para (1) above is a clear indication that a barrister could have signed a motion paper, and having referred to subsequent legislation affecting the matter, has submitted that that right has never been taken away. However, he seemed to have overlooked the provisos to para (1) which are themselves set out above. The first proviso is straightforward enough; the second proviso makes it clear that appearance in court by a barrister to plead or argue is not practising as a solicitor, and I shall have occasion to refer to this proviso later on; the third proviso is illuminating, for it clearly indicates that a barrister who signs any pleading or document which he is required to sign by any rule of court as a barrister is not practising as a solicitor when he does so sign. Still less, in my opinion, could a barrister seek to practise as a solicitor by signing a document which he is not authorised to sign, viz, a motion paper. The Rules of Court, 1900 [G] do no more than give a solicitor a limited right of audience in the Supreme Court - a rather odd place to deal with such a matter - and the Supreme Court (Civil Procedure) Ordinance, 1901 No 17, s 3, deals with authorising a barrister or solicitor by one general power ad lites to prosecute and defend a person in his own right and in his representative capacity, but does not extend, in my opinion, the rights of a barrister to practise as a solicitor. Section 46 of the Supreme Court Ordinance, 1915 No 10, perpetuates the then existing practice and procedure; this section, says Mr Hughes, is now repeated as s 44 of the Supreme Court Ordinance, Cap 7 [G]. The argument concludes that if in 1898 a barrister could have practised as a solicitor, which would include the signing of a motion paper, there being specific statutory authority continuing such practice and procedure, and since such a power has not been taken away by any other statutory provision, a barrister still enjoys that right. My view is that the third proviso to the 1897 Supreme Court Rules precluded a barrister from signing a motion paper as this was primarily within the province of a solicitor, and even if a barrister was so authorised by any rule of court, he remained practising as a barrister when he signed.
Section 44 (1) (a) of Cap 7 [G] provides as follows:
‘The practice and procedure of the Court - in its general civil jurisdiction shall
be regulated by this Ordinance and by rules of court, and where no provision is made by this Ordinance, by rules of court, or by any other statute, shall correspond to the existing practice and procedure of the Supreme Court of British Guiana.’
But there are certain provisions made by another statute, viz, Part III of the Legal Practitioners Ordinance, Cap 30 [G], to regulate the practice of barristers and solicitors, which was enacted in 1931 as “An Ordinance to declare and define the respective functions of Barristers and Solicitors”, and intituled the Legal Practitioners (Definition of Functions) Ordinance, 1931, No 15 [G]. That Ordinance defines a barrister to mean a person admitted to practise as a barrister, and a solicitor as a person admitted to practise as a solicitor; and “to practise as a solicitor” to mean “to perform or do any act or thing which is in England usually performed or done by a solicitor and not by a barrister”. I doubt whether there could be any plainer language, when regard is had to the existing provisions in the then Legal Practitioners Ordinance, Cap 26 [G] concerning the rules of admission to practise as barristers and solicitors, to indicate that the legislature appreciated the distinction, but wished now once and for all to legislate for situations where either barrister or solicitor may act. This they did by the introductory words to the new section: “Notwithstanding anything to the contrary in any Ordinance or rule ...” I understand these words to mean that “Whatever might have been the position before, what we are now about to say will be the position in future.” This brings me to s 42 of Cap 30, and to some of the cases.
Earlier in this judgment, I have referred to the case of Sirikissun v Fernandes ((1923), LRBG). In that case, which was decided in 1922, and in which reference was made to the Legal Practitioners Ordinance 1897, a barrister was held entitled to recover his fees for legal representation. That case went no further than recognising the right of a barrister to practise as a solicitor, the important dictum being that an English barrister admitted to practise in this country has his rights governed by the local law and usage relating to the legal profession - at any rate as regards the recovery of fees.
In Amihabibar v Registrar of Deeds ((1931), LRBG 143), where the indorsement of the writ was signed by the plaintiff but the statement of claim was signed by a barrister as “Of Counsel”, it was held that a barrister cannot act as a solicitor if there is no allegation in the statement of claim or in the indorsement showing the ground under the 1931 Ordinance (already referred to) for representation by a barrister only without a solicitor. More or less the same question arose in Sanichari v Etwar and Dool ((1945), LRBG 77), except that both the writ and the statement of claim were signed by a barrister “acting as solicitor for the plaintiff”. Verity CJ, set aside the writ on the ground that neither in the writ nor in the statement of claim were the grounds stated upon which a barrister may act as a solicitor. In the course of his judgment, Verity CJ, said ((1945) LRBG at p 80):
‘It is undisputed that by the Rules of this Court, as by the common rule and custom governing the functions of solicitors and barristers, a barrister is not entitled to issue a writ or to practise as a solicitor in any way in the course of contentious matters, and that the right to do so is a right conferred by statute within the limits of certain prescribed conditions.’
The force of the above statement is that unless a barrister is permitted by statute to practise as a solicitor, he cannot legally do so. This means that unless the barrister in this matter can satisfy the court that the matter with which he seeks to deal falls under s 42, he may not practise as a solicitor in connection therewith, as s 44 enables him to do.
With that case may be compared the decision of the Federal Supreme Court in Heeralall v Shivcharran ((1958), LRBG 132), where Hallinan CJ, held that the issue of a writ by a barrister in excess of his powers under s 42 is an irregularity, not a nullity. In that case, the barrister had issued a writ not specially indorsed for which he had an authority from his client, purporting to do so under s 42 (1) B (c) of the Ordinance which requires the value of the matter in dispute to be stated in the statement of claim as not exceeding five hundred dollars. The writ so stated, but this particular was omitted from the statement of claim. Hallinan CJ, made the point that Part III of the Ordinance defined the functions of barristers and solicitors and was not intended to affect the rights and obligations of litigants. Quite so. It is obvious that the plaintiff purported to comply with the Ordinance in the writ rather than in the statement of claim which can in truth be regarded as a mere irregularity. But if there was no indication in either document of the value of the subject-matter or if the barrister had not authority to issue process, I doubt whether the decision would have gone the way it did. See also the decision of this court in Mahabeer v Singh ((1966), 9 WIR 475), where a barrister appeared in Chambers uninstructed by a solicitor in a matter exceeding $500 and it was held that he could not, having regard to the provisions of s 43 (1) A.
I agree with the learned Solicitor-General’s argument that the right to appear is not to be construed as being synonymous with the right to issue a writ. When a barrister acts alone and has audience in any of the matters set out in s 42 (1), he does not thereby lose his identity as a barrister. To adopt the language used in the course of the argument, he does not assume the cloak of a solicitor. All that s 42 does is to grant to a barrister certain privileges which, as a barrister, he may not have had before. It is s 44 which says that as regards any of the matters specified in s 42, he shall be entitled to practise as a solicitor, for example, he may issue writs, summonses, or other processes. The result is he may not lawfully practise as a solicitor in matters not prescribed by s 42. I appreciate that I differ somewhat in this regard from the views expressed by Stoby C, and Luckhoo JA (as he then was) in Mahabeer v Singh ((1966), 9 WIR 475) in that they seem to have been of the view that when a barrister issues a writ under s 44 and appears in court, or where the section says that a barrister can appear alone, and he does so, he is practising as a solicitor. With great respect, I do not agree with those expressions of opinion for the reasons I have already given.
My conclusion on this point, therefore, is that a barrister may now only practise as a solicitor in the matters set out in s 42, with the result that he is incapable of signing a motion paper.
I would end this judgment here but for the fact that the Solicitor-General, no doubt in response to the letter addressed to him, discussed at length the cases of Re Langhorne (Re John Ewart Langhorne (1969), 14 WIR 353), Re Sarran ((1969), 14 WIR 361), and particularly Evelyn v Chichester ((1970), 15 WIR 410). He appeared to have taken the view - if I understood him correctly - that Sarran’s case did not deal with the point now in issue, that the views expressed in Langhorne’s case were obiter, and that the finding of this court in Evelyn v Chichester ((1970), 15 WIR 410) that the departmental orders made under the Transport and Harbours Ordinance constituted a law was not a correct finding. He argued ably, as is his wont, and with great persistence, obviously in an effort to secure a review and perhaps a reversal of those decisions. I have no doubt that if the occasion warrants it, this court will not hesitate to amend or even reverse views previously held, if it is satisfied that those views are no longer tenable. But however tenacious the Solicitor-General, and however able his arguments, if the point does not arise, it would be unwise to express an opinion, in spite of the attractive inducement held out by him so to do. My own view is that the points decided in those cases do not arise in this matter and therefore do not now call for an examination by this court; to do so would amount to nothing more than a sleeveless exercise.
In my judgment, the second point taken in limine should succeed, in which case I would have affirmed the judge’s order and ordered the appellants to pay the costs of the Public Service Commission of this appeal.
Perhaps it can with truth be said, when regard is had to the movement in this country to have the legal profession fused, and to the establishment of a Faculty of Laws in the University of the West Indies which, as I understand it, will have this effect, that this judgment really has no practical value. Be that as it may, the function of the courts is to interpret the laws as we find them, not as we or others would wish them to be, nor as they may be expected to be in the future.
CRANE JA. There are two questions to be answered in this appeal. The first is, whether a barrister is entitled to “practise as a solicitor” having signed a notice of appeal so designated, to the Guyana Court of Appeal from the High Court’s refusal to grant the preogative writ of certiorari, and then appear as counsel to argue the same appeal.
The second question is akin to, having been given rise to the first: Can a barrister “practise as a solicitor” for the porpose of issuing a writ for certiorari in the High Court, and afterwards appear in that court as counsel to argue the motion which it entails? To “practise as a solicitor” in the context, means “to perform or do any act or thing which is in England usually performed or done by a solicitor and not by a barrister”. (Section 41 of the Legal Practitioners Ordinance, Cap 30 [G]).
As I approach the solution of these two questions, I do so fully cognisant of the fact that the long-talked-of fusion of the two branches of the profession is fast approaching reality. The recent proposals of the Organisation of Commonwealth Caribbean Bar Associations, and the Treaty to institute a Council of Legal Education in the near future providing a Faculty of Law in the University of the West Indies for the training and Call to the Bar of our legal practitioners, bear witness to this fact. Accordingly, what I say here relates to the prevailing practise in Guyana which, for the time being at least, represents the law of the land.
When this matter first engaged our attention on 25 May 1971, objection was taken by the Principal Legal Adviser to Mr Gibson’s appearance to argue his amended grounds of appeal which were then signed by solicitor Theodore A Morris. Our attention was alerted to the irregularity which arose from the fact that there was already on record a notice of appeal signed by Mr Gibson as “Barrister-at-Law acting as solicitor for the applicants/appellants”. To this, Mr Gibson replied that even if we were unwilling to admit his amended grounds of appeal in which he is now shown to be independently instructed by solicitor, he is prepared to contend the appeal is one in which he could properly practise either as barrister or solicitor. This he is permitted to do, he says, because r 1 (1) of O II of the Federal Supreme Court (Appeals from Guyana) Rules 1959 [G] (hereafter called “the 1959 Rules”), confers on him the right as “legal representative” of the appellants to sign their notice of appeal; particularly as r 2 (1) of O 1 of the 1959 Rules defines “legal representative” as either a barrister or a solicitor, he could lawfully sign the appeal motion in either capacity. Moreover, he says, by definition of the same term in art 20 of the Constitution of Guyana, he is an advocate with a general constitutional right of audience in the Supreme Court of Judicature. Here, I think, we can eliminate at once any claim to a constitutional right of audience since the definition of “legal representative” in art 20 is restricted to Cap II under which the appellants do not base a claim to a right of audience in the courts or other tribunals therein stated.
In my view, the amended grounds of appeal signed by solicitor Theodore A Morris may be ignored in view of authority to barrister Gibson given by O 2, r 1 (1) of the 1959 Rules, as the appellants’ legal representative, to sign a notice of appeal. When, however, he does so, he must sign only in the capacity of “Barrister-at-Law”; he cannot properly sign as “Barrister-at-Law acting as solicitor”. This is because the term “legal representative” in O 1, r 2 (1) of the abovementioned Rules, is defined as meaning either a barrister, stricto sensu, or a solicitor, that is to say, one who has passed the qualifying examination held by and under the management and control of the Law Society of England and is “admitted to practice as such”. So a barrister-at-law practising as solicitor is not a “solicitor” within the meaning of the term “legal representative” in O 1, r 2 (1) abovementioned, and he cannot sign a notice of appeal under that designation.
Now, what of counsel’s position in view of the fact that he has previously to solicitor Morris’s notice signed a notice of appeal to this court in the capacity of “Barrister-at-Law acting as solicitor”? Does that abort the appeal? I am of opinion it is not fatal to the appeal, and that the later notice of appeal by solicitor Morris was unnecessary in the circumstances because I think the maxim falsa demonstratio non nocet, which is used in relation to documents, deeds and wills, may, by analogy, be extended and can be called to counsel’s aid in the case of a notice of appeal. The rule, as stated by Joyce J, in Re Brocket (Re Brocket, Dawes v Miller,  1 Ch 185, 77 LJ Ch 245, 97 LT 780, 52 Sol Jo 159, 49 Digest (Repl) 827, 7791) ( 1 Ch at p 194) is this: “A false description of a person or a thing will not vitiate a gift in a deed or will if it be sufficiently clear what person or thing is really meant”. The important point about the rule is that if part of the document is true and part is false, if the true part describes the subject with sufficient certainty, the untrue part will be rejected and ignored. The characteristic of the cases falling within the rule being, that the description, so far as it is false, applies to no subject at all, and so far as it is true, applies to only one.
Applying the rule to Mr Gibson’s situation, I conceive the position to be as follows: counsel having firstly described himself as “Barrister-at-Law”, that designation which is undoubtedly true of him can properly remain since he, quo barrister, has the power to sign a notice of appeal; but the rest of it, viz, “acting as solicitor”, being untrue and without legality, is mere surplusage. Accordingly, it is falsa demonstratio and can be ignored as such. The result is that leave will be granted Mr Gibson to strike out the surplusage. His appearance before us is now regularised, and I will answer the first question in the negative.
I now pass on to consider the second question. The application in the High Court for an order nisi for a certiorari arose when Lennox Arthur and Calvin Hermanstyne, rural postal assistants in the Ministry of Communications, were dismissed by the Public Service Commission as a consequence of the findings of one Mr A R Brutus, who was authorised to hold an inquiry into allegations of their misconduct.
In a joint affidavit in support of the ex parte application for the order nisi, the applicants alleged, inter alia, non-receipt by them of, and/or non-access to, documentary evidence with which it was incumbent on the Public Service Commission to supply them under Colonial Regulations; also, lack of evidence to support the charges. In their prayer they invoked an order on both Mr Brutus and the Public Service Commission, as respondents, to show cause why a writ of certiorari should not issue from the High Court to remove the records of the inquiry into that court for the purpose of being quashed “on the ground of lack of, or excess of jurisdiction and error of law on the face of the record”.
On 15 May 1969, the matter came on for hearing before Vieira J, who granted the order nisi along with consequential orders as to the filing of an affidavit in reply by the Public Service Commission, and as to service on the respondents of certified copies of the motion and records of the inquiry.
On 17 June 1970, the motion for the order absolute engaged the attention of Mitchell J Counsel for the applicants then immediately objected to both Mr Rahaman’s and his solicitor’s entry of appearance on behalf of the respondents. He did so because Mr Rahaman had failed to file the affidavit in reply in compliance with the order of Vieira J Mitchell J, thereupon ruled, and I think quite rightly, that although there was no such affidavit on file, Mr Rahaman having been served with notice of motion and having appeared in court to answer thereto, had duly entered appearance along with his solicitor. An entry of appearance is something quite distinct from the filing of an affidavit in reply. Mr Rahaman, thereafter, by way of preliminary objection, proceeded to attack the foundations of the notice of motion. He objected to the capacity in which counsel signed, namely, “B E Gibson, Barrister-at-Law acting as solicitor for the applicants”. He insisted the proceedings were a nullity for the reason that a barrister thus acting is not in law so entitled unless he can show he can show he is authorised under s 42 of the Legal Practitioners Ordinance, Cap 30; and Mr Gibson is not so authorised.
I have said I think the judge was right to rule as he did, because it was not a condition precedent to Mr Rahaman’s appearance that he should file the affidavit in reply. If there was indeed reason to believe Mr Gibson had set the law into motion by issuing a writ of certiorari without having any legal authority to do so, I am not in the least doubtful that Mr Rahaman was entitled to apply promptly to set aside the application for the writ before filing his affidavit in reply because any questions of locus standi or want of jurisdiction, ie, legal authority to sue or decide, are “determinable on the commencement, not at the conclusion, of the inquiry”. (See R v Bolton ( 1 QB 66, Arn & H 261, 4 Per & Dav 679, 10 LJMC 49, 5 JP 370, 5 Jur 1154, 113 ER 1054, 16 Digest (Repl) 468, 2876), also Russian Bank v de Mulhouse ( All ER Rep 381,  AC 112, 93 LJKB 1098, 132 LT 99, 40 TLR 837, 68 Sol Jo 841), and Shaw and Sons v Shaw ( All ER Rep 456,  2 KB 113, 104 LJKB 549, 153 LT 245, CA, 50 Digest (Repl) 438, 1377).) I should think this is especially important when the objection relates to an erroneous exercise of the functions of barristers under s 42 of the Legal Practitioners Ordinance, Cap 30; but I feel it is only right to say Mr Rahaman ought to have served notice on the applicants that he proposed to take that preliminary objection, as was done in the case of Ex parte Surujballi ((1948), LRGB). However, as the trial judge observed, Mr Gibson was already “seised of the point”, and as he requested no adjournment was apparently not prejudicially affected.
The main ground of appeal in which counsel for the appellants sought to answer the objections raised in limine relates to s 42 (1) B (f) of the Legal Practitioners Ordinance, Cap 30 [G]. It is there stated under the caption Contentious Business as follows:
‘Notwithstanding anything to the contrary in any Ordinance or rule, a barrister or a solicitor shall be entitled to act alone and have audience...
B In Court...
(f) in any application under any Ordinance providing for the making of an application for any relief or remedy;...’
As I understand it, the contention of counsel is that licence is given a barrister in s 42 (1) B (f) above, to practise as a solicitor in the case of all applications to the High Court in which any statutory relief or remedy whatever is sought. He contends that since both mandamus and certiorari are classified as judicial remedies, that fact will entitle him to act alone, to issue writs, summonses and other processes and to have audience in the High Court. But while counsel concedes that nowhere does certiorari specifically appear under any ordinance as a remedy, he cites the case of R v Lympne Airport Chief Immigration Officer, Ex parte Amrik Singh( 1 QB 333,  3 WLR 945, sub nom R v Chief Immigration Officer, Ashford Airport, Ex parte Amrik Singh, 112 Sol Jo 657, DC, Digest Cont Vol C, 20, 157v), with a view to showing that mandamus and certiorari are so closely linked that they may be regarded as interchangeable remedies; so much
so that if on a motion for certiorari, mandamus is shown to be the more appropriate remedy, it may issue as an additional remedy. Therefore, says counsel, wherever the remedy of mandamus is to be found in any ordinance, that, by necessary implication, will sanction, on the authority of the Lympne Airport case (R v Lympne Airport Chief Immigration Officer, Ex parte Amrik Singh,  3 All ER 163,  1 QB 333,  3 WLR 945, sub nom R v Chief Immigration Officer, Ashford Airport, Ex parte Amrik Singh, 112 Sol Jo 657, DC, Digest Cont Vol C, 20, 157v), an application for the remedy of certiorari; and so it follows, he argues, that an application for a mandamus under s 31 (1) of the Supreme Court Ordinance, Cap 7 [G], will attract the issue of the remedy of certiorari.
Section 31 (1) provides as follows:
‘Subject to rules of court, a mandamus or injunction may be granted, or a receiver appointed, by an order of the Court in all cases in which it appears to the Court to be just or convenient that that order should be made.’
It seems to me Mr Gibson has misconceived the situation. He has not distinguished between a writ in an action for mandamus and the prerogative writ of certiorari. In the former case, being a writ of course, it is quite competent for him to issue it within the prescribed limits practising as a solicitor, whereas in the latter case, not being a writ of right, no one is entitled to its issue unless he first obtains an order nisi upon cause shown by motion. Moreover, the purpose of the two writs is entirely different. The one is the creature of statute designed to provide either a more convenient method of procedure or a more convenient method of enforcing particular statutory obligations; whereas the other is the creature of the common law designed to prevent courts of inferior jurisdiction from acting in excess of them, and to correct errors of law committed by them that are apparent on the face of the record. The mandamus spoken of in s 31 of Cap 7 above, is the remedy in an action for mandamus which a plaintiff claims “to command the defendant to fulfil any duty in the fulfilment of which he is personally interested”. (See O 38 r 1 and O 44 r 1, Rules of the Supreme Court, 1955 [G].) A statutory mandamus has no connection with the ancient prerogative writ which issued out of the Court of King’s Bench. See Glossop v Heston Local Board ([1874-80] All ER Rep 836, (1878) 47 LJ Ch 536, 26 WR 433, 22 Digest (Repl) 515, 5733) where Brett LJ, explains the distinction between the two remedies; also Coghlan v Vieira ((1958) LRBG 108).
Therefore, the argument for an interchangeable and concurrent operation of the orders of mandamus and certiorari to be gathered from the Lympne Airport case (R v Lympne Airport Chief Immigration Officer, Ex parte Amrik Singh,  3 All ER 163,  1 QB 333,  3 WLR 945, sub nom R v Chief Immigration Officer, Ashford Airport, Ex parte Amrik Singh, 112 Sol Jo 657, DC, Digest Cont Vol C, 20, 157v) above, cannot properly apply in relation to s 31 (1) of Cap 7 above, simply because the order of mandamus mentioned by Lord Parker CJ, in that case is the prerogative writ; not statutory mandamus.
These proceedings were adjourned for decision on 18 June 1971, but we have had them re-opened on 25 February 1972, while under consideration for further argument in order to determine whether, having regard to the recent decisions of this court in Re Sarran ((1969), 14 WIR 361), Re Langhorne (Re John Ewart Langhorne (1969), 14 WIR 353), and Evelyn v Chichester ((1970), 15 WIR 410), an application under s 42 (1) B (f) of Cap 30 can properly embrace an application for relief or remedy under art 125 (8) of the Constitution of Guyana. From then on Mr Hughes (leading Mr Gibson) and the Solicitor-General (leading Mr Rahaman) entered appearance on behalf of the applicants and respondents respectively.
This point, although not originally argued as a ground of appeal before us, is not entirely novel for the record shows it was canvassed in some measure in the court below. The trial judge, however, appeared to have brushed it aside in his judgment when he said the question for his determination was not one concerning the court’s jurisdiction to entertain the motion, but was simply whether counsel could have signed the motion in the capacity in which he did and at the same time have the right of audience before him. It was for this reason we thought it fitting to receive argument on the question whether an “Order in Council” is inclusive in the word “ordinance” in s 42 (1) B (f), which was the point it
appears the trial judge was asked to rule on, but declined to do so. To me, it seems that if an Order in Council is at all inclusive in “ordinance”, a question may well arise, contrary to what the judge thought, involving the court’s jurisdiction in the light of the ratio decidendi of the abovenamed decisions, the purport of which is that art 125 (8) preserves the jurisdiction of the High Court to hear certain questions notwithstanding the privative clause in art 119 (6).
Included in the enquiry of what is meant by the expression “Ordinance providing for the making of an application for any relief or remedy”, is the question whether the Supreme Court Ordinance, Cap 7 [G], is such an ordinance in view of the fact that in it is vested jurisdiction to grant “all remedies whatsoever”. (See s 33, ibid.) I propose to deal with the problem on the basis of the following question: “Can the word ‘Ordinance’ in s 42 (1) B (f) be held to include an “Order in Council” such as the Constitution of Guyana, in the Second Schedule to the Guyana Independence Order 1966?”
If “Ordinance” is held to include an “Order in Council”, then, and only then, it will become necessary, in view of the abovementioned decisions of this court, to consider whether art 125 (8) provides for the making of an application for the remedy of certiorari.
If, on the other hand, “Ordinance” does not include an “Order in Council”, then the question whether art 125 (8) permits the making of an application for the remedy of certiorari so as to entitle a barrister alone to institute and to move an originating motion before the High Court cannot arise; and the sole question for determination will then be as stated above, whether the Supreme Court Ordinance, Cap 7 [G] is one that provides for the making of an application for the remedy of certiorari so as to permit a barrister to act alone and to have audience before the High Court.
In examining the question whether “ordinance” includes “Order in Council”, it will be necessary to advert to the Interpretation Ordinance, Cap 5 [G], particularly as art 125 (8) says that Cap 5 shall apply, with the necessary adaptations for the purpose of interpreting the Constitution in the same way as it did in the case of any Ordinance of the Legislature of the former colony of British Guiana. Accordingly, by the Constitution itself, Cap 5 is provided as the common medium of interpreting both s 42 (1) B (f) of Cap 30 and any of its own articles.
Turning now to s 33 of the Interpretation Ordinance, Cap 5, it will be observed that the word “Ordinance”, unless the context otherwise requires, is defined as including “a local and personal Ordinance and a private Ordinance”. What is important is, I think, that this definition does not include either Acts of the Imperial Parliament of Orders of Her Majesty in Council. On the other hand, in s 5 (1), ibid, the word “statute” is defined as meaning, inter alia, any Ordinance or Act of Parliament for the time being in force in Guyana, and is inclusive of an Order of the Queen in Council. Clearly, the expression “statute” (the genus) is of much wider import than “Ordinance”, embracing as it does the latter and an “Order in Council (the species). But does this signify any relationship in terms of equality between the species so that the one may be used interchangeably and be regarded as the equivalent of the other? Can Ordinance and Order in Council automatically be read interchangeably whenever and wheresoever any one of them appears in any of the laws of Guyana and it is thought desirable so to read them? For my part, I am inclined to think and will show by the authorities they cannot and must not be so read unless the context requires them to be. This is the crucial point that this question raises.
There are two forms of interpretation clause. The expression “means” in an interpretation clause is explanatory and prima facie restrictive. It signifies what
the definition says it means. (See Legislative Drafting And Forms 4th edn, p 40, by Sir Alison Russell, KC) The natural and ordinary meaning of the term “statute” as it appears in s 5 (1) of the Interpretation Ordinance, Cap 5, is thus restrictive.
Section 5 (1) says:
‘In this Ordinance and in every Ordinance passed after the commencement of this Ordinance, and in every official document made or executed after the commencement of this Ordinance, unless the contrary intention appears, “statute” means any Ordinance (as is defined in s 33), or Act of Parliament for the time being in force in Guyana, and includes any order of the Queen in Council, rule or regulation, order of the Governor and Legislative Council, or by-law for the time being having the force of law therein.’
Thus, the natural and ordinary meaning of “statute” is that which directly emanates from the will of a legislative body; but when it is said that statute “includes” an Order in Council (local or Imperial), that expression is extensive in operation. It means, firstly, its own natural and ordinary meaning and also something else which it does not ordinarily mean, but which, for convenience, is declared to be included in it. The Privy Council, in Dilworth v Stamp Commissioners, Dilworth v Land and Income Tax Commissioners ( AC 99, 79 LT 473, 47 WR 337, 15 TLR 61, sub nom Dilworth v New Zealand Stamp Comrs, 68 LJPC 1 PC, 19 Digest (Repl) 659, 348) when dealing with definitions which incorporate the word “include”, laid down two constructions to which that word is susceptible ( AC at p 105):
‘The word ‘include’ is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word ‘include’ is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to ‘mean and include’, and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions.’
The expression “Order of the Queen in Council” being thus included only for the purpose of extending the meaning of “statute”, is not therefore within the ordinary meaning of “statute” or its equivalent “Ordinance”. “Order in Council” is also not within the extended definition of “Ordinance” in s 33. It is therefore dehors both the ordinary and extended meaning of “Ordinance”, and cannot, it seems to me, be used either interchangeably or substitutionally as an equivalent expression for “Ordinance” any more than it would be permissible to read, unless the context otherwise requires, the words “rule”, “regulation” or “by-law” in place of “Act of Parliament” for the time being in force in Guyana if such Act were to appear in any one or more sections of the laws of Guyana.
As I see it, if a word or phrase is used in its primary, natural or ordinary sense in any section of the laws of Guyana, as from the context I find the word “Ordinance” is so used in s 42 (1) B (f) of Cap 30, then there can be no warrant for resorting to s 5 (1) of the Interpretation Ordinance so as to extend its meaning to include an Order in Council such as the Constitution of Guyana. In my judgment, the clear context in which the expression “Ordinance” is used in s 42 (1) B (f) of Cap 30 is procedural.
Authorities are legion in support of the proposition that an interpretation clause is not necessarily to be resorted to every time a word defined in it occurs in an Act or Ordinance. It is not to be taken as substituting one set of words
for another, or as strictly defining what the meaning of a term must be under all circumstances, but rather as declaring what may be comprehended within the term where the circumstances require that it should be so comprehended. The clause in fact declares what the meaning is to be or what may be included in it where the circumstances require that it should bear that meaning or have that ambit. In other words, one resorts to an interpretation clause only when the natural and ordinary meaning is not clear. Indeed, it was the view of Lush J, in R v Pearce ((1880), 5 QBD 386, 49 LJMC 81, 28 WR 568, DC, 44 Digest (Repl) 269, 960), that “an interpretation clause should be used for the purpose of interpreting words which are ambiguous or equivocal, and not so as to disturb the meaning of such as are plain”; and, of Lord Coleridge in London School Board v Jackson ((1881), 7 QBD 502, 50 LJMC 134, 45 JP 750, 30 WR 47, DC, 44 Digest (Repl) 270, 961), that the clause may not be employed so as to “prevent the operation of a word in its primary and obvious sense”.
A practical application of the principle occurred where the words “any person” in the Solicitors Act 1932 [UK] s 46, were held not to include a body corporate, but only such natural person as could become a solicitor and have in force a certificate to practise as such. This was in spite of s 3 of the Interpretation Act 1889 which says that “person” shall include a body corporate, “unless a contrary intention appears”. (See Law Society v United Service Bureau ( 1 KB 343, 103 LJKB 81, 150 LT 159, 98 JP 33, 50 TLR 77, 77 Sol Jo 815, 31 LGR 436, 30 Cox, CC 37, DC, 43 Digest (Repl) 452, 4858).)
Another application of the above principle is afforded by the case of Pound v Plumstead Board of Works ((1871), 41 LJMC 51, LR 7 QB 183, 25 LT 461, 36 JP 468, 20 WR 177, 44 Digest (Repl) 269, 959). There, the point for the court’s decision related to the powers of the Plumstead Board of Works to pave, in the case of a “new street”, a certain portion of a road in the parish of Lee, commonly called Burnt Ash Lane, and to charge the expenses thereof to the owners of the adjoining houses, and of the land bounding the said road or abutting therein under s 105 of the Metropolis Management Act 1855 and the Metropolis Management (Amendment) Act 1862 [UK] respectively. It was contended on behalf of the appellant Pound that Burnt Ash Lane being an ancient highway was always repaired or repairable by the parish and so did not come within the definition of “new street” so as to render him liable for payment of the expenses. The interpretation clause in question read that “new street” shall “apply to and include all streets hereafter to be formed and laid out, and a part of any such street, and also all streets, the maintenance of the paving and roadway whereof had not, previously to the passing of this Act, been taken into charge, and assumed by the commissioners, trustees, surveyors, or other authorities having control of the pavements or highways in the parish or place in which such streets are situate.” Rejecting the appellant’s contention that Burnt Ash Lane was not a “new street” within the statutes in question since originally it did not have any houses on either side of it, Blackburn J, said of the interpretation clause:
‘It is urged very strongly that in the interpretation clause it is said the word ‘street’ shall include roads, lands, and a great many other things, but it does not say that it shall be confined to that meaning, it says it shall include them; that is perfectly true and intelligible. It does not at all follow, where the legislature from the context show that they are using the word ‘street’ in its ordinary and natural sense, that because they say the word shall include other things, that we are to say it does not include those which come within its own natural sense. It seems to me that as soon as that which had been no street before, in the popular sense of the word, but merely a country lane, comes to be a street, it then becomes a ‘new street’ within the meaning of the Act, and the vestry had a right to pave and charge the expenses upon the owners of the houses.’
Pound’s case (Pound v Plumstead Board of Works (1871), 41 LJMC 51, LR 7 QB 183, 25 LT 461, 36 JP 468, 20 WR 177, 44 Digest (Repl) 269, 959) is only another illustration of the restricted use to which an interpretation clause may be put. It is an authority for saying that if from the context a word or phrase in any statute is intended by the legislature to be employed in its natural or ordinary sense, then that may not be superseded
by extended meanings that are included for convenience within the clause. For the reason that I think the context in which “Ordinance” is used in s 42 (1) B (f) of Cap 30 excludes the expression “Order in Council” (ie, Constitution of Guyana), it is my considered opinion that “Order in Council” may not be read interchangeably or substitutionally for the word “Ordinance”.
In the light of the foregoing, I think it ought now to be clear that no question can arise that the Constitution is in any sense an “Ordinance providing for the making of an application for a relief or remedy” within s 42 (1) B (f). But quite apart from “Order in Council” being inclusive in the word “Ordinance”, I think if it can be shown, and I propose to do so presently, that the applicants have indeed made their application under an Ordinance which provides for an application for certiorari, then the question whether art 125 (8) permits the making of an application for the remedy of certiorari so as to entitle a barrister to act alone and to move an originating motion for that remedy will, in any event, become irrelevant. There will then be no need to resort to the ratio decidendi in Re Sarran ((1969), 14 WIR 361), Re Langhorne (Re John Ewart Langhorne (1969), 14 WIR 353), or Evelyn v Chichester ((1970), 15 WIR 410) with a view to solving the question.
I now turn to what I believe is really the only point for decision, namely, whether a barrister can legally issue a writ for certiorari under s 42 (1) B (f) of the Ordinance inasmuch as the enacting part of the same section entitles him “to act alone and have audience” notwithstanding what has been said “to the contrary in any Ordinance or rule” (of Court).
I believe I have already answered counsel’s argument above by showing that s 31 of the Supreme Court Ordinance, Cap 7, relating to statutory mandamus does not afford the applicants a remedy in the nature of certiorari. But the question now arises: does either s 3 or 33 of that Ordinance or the joint effect of them provide for the making of an application for that remedy? I look at the matter this way: if either one or both of those two sections so provide, then cadit quaestio; for notwithstanding, as we shall presently see, it has been the rule of practice and procedure in our Supreme Court for at least the past 128 years for counsel to be instructed by solicitor when moving motions including applications for prerogative writs between 1893 and 1931, the institution of the originating motion by barrister Gibson will have been legally justified. But if, on the contrary, those two sections do not so provide, then, it seems to me, Mr Gibson will have acted without authority and the question on which the trial judge rested his decision, namely, that of a barrister who issues a writ without statutory authority to do so will arise for consideration, along with the further question whether his act was a nullity or an irregularity merely.
In seeking a solution to the above, it will be necessary, first, to deal with the historical antecedents of the matter of the separation and respective functions of both branches of the legal profession. I am afraid this is somewhat lengthy, but unavoidable if the introductory clause of s 42, namely, “Notwithstanding anything to the contrary in any Ordinance or rule...” is to be understood. It will be necessary for me to show that in the absence of any provision for an application under any Ordinance such as in s 42 (1) B (f) entitling him, a barrister, to practise as a solicitor in relation to high prerogative writs, Mr Gibson would have been obliged prior to 1931 to practise in strict conformity with the practice and procedure of the local Bar with regard to the issue of such writs and other initiating processes as have been adopted from English forms and regulated by our Rules of Court, both before and after our two branches of the professions became separated in the first half of the last century by the “Rules of Admission” to our courts in the year 1837.
The extent of that separation wrought by the rules of Admission, 1837 [G], is evidenced, firstly, by the Manner of Proceedings Ordinance, 1844 No 21 [G] s 7 of which provided that:
‘in originating a suit, a plaintiff’s attorney-at-law [ie, the forerunner of the modern solicitor] shall cause to be filed with the Registrar power ad lites, and the claim and demand;’
and by s 10, ibid:
‘the claim and demand being so filed, the plaintiff’s attorney shall deliver to the marshal instructions for citation, signed by the plaintiff’s attorney, and countersigned by counsel, and the marshal having received such instructions shall be bound forthwith to serve on the defendant citation...’
and, secondly, by the Supreme Court Tariffs Ordinances [G], Nos 12/1844 and 27/1855, in both of which the respective fees of attorneys-at-law, and barristers-at-law or advocates are set out. In relation to the drawing of notices of motions, attendance on and giving instructions to counsel to move, an attorney was paid $4.00, while for attending court on the hearing of a motion and taking up the rule or order of court, his remuneration was fixed at $3.00. Barristers or advocates, on the other hand, received $8.00 for their attendance on the motion, whilst pleading it was taxed by the court. So it is clear that from as long ago as the year 1844 separation of functions between the two branches of the profession was in evidence in that it was the attorney who was responsible for issuing originating process. Counsel only entered the proceedings at a later stage in much the same way as he does today. Nor would it appear from s 5 of the Manner of Proceedings Ordinance, 1855 No 26, which enabled litigants to give powers ad lites to “any barrister-at-law, advocate or attorney-at-law”, authority was being given to a barrister to issue a writ or other originating process because, as we shall presently see, it is an invariable rule that authority to initiate a suit must be specifically conferred. In point of fact, there was in s 11, ibid, every indication that the attorney was still to be the initiator of process.
Section 11 directed:
‘there shall be on the claim and demand an indorsation, signed by the attorney-at-law of the plaintiff, setting forth the date of the power ad lites under and by virtue of which he acts for the plaintiff...’
Apparently, there was no provision for any other legal practitioner save the attorney to sign a claim and demand, and it is noteworthy that this state of affairs was retained both by O 1, r 13 of the Rules of Court 1893 [G], and by O 3, r 7 of the Rules of Court 1900 [G].
Nor did it appear from the Rules of Court 1898 [G], made by the Judges of the Supreme Court under s 8 (2) of the Legal Practitioners Regulation Ordinance, 1897 No 18, with a view to elucidating the meaning of the term “practising as a solicitor”, that counsel was authorised to issue a writ or other initiating process.
According to the 1898 Rules:
‘Practising as a Solicitor within the meaning of section 8 of the Legal Practitioners Regulation Ordinance, 1897, shall be deemed to be the performance or doing by a Barrister or Solicitor of any of the following acts, things or matters, that is to say:
(1) The undertaking, transacting, or carrying on for or on behalf of any other person of any proceeding in any suit or action or of any business whatsoever whether the same be of a contentious or non-contentious nature before any Court, Judge, or Magistrate or in the offices of any Court, Judge, or Magistrate.
(2) The preparation for or on behalf of any other person of any business connected with sales, purchases, leases, mortgages, settlements, and other matters of conveyancing.
(3) The conducting for or on behalf of any other person of any legal document.
(4) The receiving for or on behalf of any other person of any moneys for the purpose of investment or to be paid over to the person on whose behalf they are received or to be otherwise disposed of in accordance with his instructions.
Provided always that no Barrister who performs or does any of the acts, things or matters herein before set forth on the instructions of a Solicitor who is acting on behalf of another person shall be thereby deemed to be practising as a Solicitor.
And provided also that whilst appearing before any Court, Judge, or Magistrate to plead or argue in any proceeding whether civil or criminal, no Barrister shall be deemed to be practising as a Solicitor.
And provided also that no Barrister who signs any pleading or other document required by any Rule of Court for the time being in force to be signed by a Barrister or Solicitor shall be deemed thereby to be practising as a Solicitor.’
Nowhere, however, did the Rules of Court, 1898, on any reasonable interpretation of them, empower a barrister to commence or initiate proceedings. Certainly, the power of “undertaking” proceedings in any suit or action in r 1, ibid, gave him no right to initiate them. The grant of power to commence legal proceedings on behalf of another is a very serious matter. It ought to be strictly construed if for no other reason than it may involve the donor of the power in serious financial loss or other disastrous consequences. Undertaking does not mean initiating legal proceedings. Such a power must be specifically conferred. See Georgetown Coconut Estates, Ltd v Argosy Co, Ltd and J Cunningham ((1917), LRBG 78), where Berkeley J, when construing clause 13 of a Power of Attorney which conferred a power on an attorney to “take legal proceedings”, held as a matter of law that did not give him the power to commence legal proceedings for and on behalf of his principal. The learned judge ruled that, “If there is no power to institute proceedings, then it follows that those proceedings cannot be allowed to stand and must be struck out”. His decision was affirmed on appeal. In order to see how essential it is to have such a power specifically conferred, I think one has only to refer to those powers which the Constitution of Guyana has conferred on the Director of Public Prosecutions in art 47 (2) (a). In that article, it will be observed there is not only the grant of the power to “undertake” legal proceedings, but also the specific power to “institute” them, ie, to take the very first step in the undertaking of them. This is clearly the issuing of process in either his own name or that of another person so as to commence them. It will be important to observe that the power given to the Director of Public Prosecutions to institute precedes the power to undertake; but no corresponding power to institute is given in r 1 of the Rules of Court 1898 (above) - only a power to undertake proceedings, presumably in terms of O 7, r 3 of the Rules of the Supreme Court 1955, which includes an undertaking in writing from a solicitor to accept service and enter appearance for a defendant.
Again, the power given in r 2 of the Rules of Court 1898 (above) to prepare any legal document for and on behalf of any other person could hardly have conferred power to institute legal proceedings which, as we have seen, must be specific. I think r 2 was only made to remedy such a situation as that which arose in the case of Fraser v Milner et al ((1896), LRBG 20), in which it was held, on the strict reading of O 1, r 8 of the Rules of Court 1893, that a claim must be expunged because a barrister signed a domicile paper on behalf of a plaintiff
instead of solicitor doing so. After 1898, by r 2, ibid, either barrister or solicitor could properly sign the domicile paper for a plaintiff. However, there was nothing in that rule which authorised him to issue a writ, nor in s 3 of of Ordinance No 17 of 1901 which empowered any person by one general power ad lites to authorise a barrister or solicitor to “prosecute” and defend for him in his own right, all actions, causes and proceedings.
I have shown above that in construing a power “to take legal proceedings”, the courts have consistently held a power must be specifically given to commence them. In my judgment, therefore, the power to “prosecute” in s 3 of Ordinance No 17/1901 can in no sense, as Mr Hughes has contended, be construed to mean the grant of a power to commence or to initiate legal proceedings. Let me give an example: “I may engage a barrister or solicitor to prosecute on my behalf proceedings that have already been commenced by another person. He does not necessarily institute them. I may myself have commenced those proceedings as plaintiff and may then have given the barrister or solicitor a power ad lites to prosecute them for me. In effect, it is I who have initiated those proceedings while the barrister has prosecuted them.” So a power to prosecute does not mean or include a power to initiate proceedings.
The first known case in which the right of a barrister to issue a writ was called in question was Ferreira v Francisco ((OG 6 June 1903, p 1515)). There, Hewick J, accepted that barristers could sign pleadings, but with respect to the issue of writs he said, “The issuing of a writ is different; that is confined to the plaintiff or his solicitor, and, in my opinion, cannot be done by a barrister”. (See also Larkow v Williams ((OG 13 April 1904, p 903)), Prithipalsingh v Barbarjaising ((OG 25 June 1910, p 1655)), and Humphrey v Bruyning ((1921), LRBG 20), in which similar rulings were given.)
It was only since the advent of the Legal Practitioners Ordinance, Cap 30, in 1931, that the barrister was specifically given the right to issue writs, and then only in limited cases, as laid down in s 42 (1) of that Ordinance which we are now considering. But, while counsel for the applicants is forced to concede what has been shown with respect to writs, he contends that a barrister always had the right to initiate proceedings by originating motion. I am afraid, however, counsel has not been able to show that this is so. On the contrary, an examination of the actual records of several old volumes of proceedings in the old Supreme Court of Civil Justice, a task which I have personally carried out, will show that during the latter half of the 19th century, circa 1848-1875 or so, it was the practice, inter alia, to bring originating motions in the Supreme Court on behalf of creditors seeking to be relieved of the consequences of failure to pursue their claims in respect of the proceeds of property sold at execution. These old records are there for all to see. What is particularly noticeable about this practice is that in all such cases notices of motion were couched in the usual English form - “Take notice that a Judge or the Court will be moved by counsel...”; that every such motion was signed by an attorney-at-law (ie, a solicitor); that the court was invariably moved by a barrister or advocate, not a solicitor; and that the judge signed judgment acknowledging this fact. There can be no doubt this was English practice and procedure to its fullest extent.
The practice of the originating notice of motion was, of course, strictly English, and I think it is right to assume it had been wrought in 1837 by reason of the separation of the two branches of the profession which we have noticed above.
The clear result of all those goes to show that long before the Supreme Court of British Guiana was instituted in its present form by Ordinance No 7/1893, the English practice of issuing the originating notice of motion by attorney or solicitor was much in vogue in our courts, and while it is true that O 1, r 4 of the Rules of Court 1893 appeared to provide only for motions in interlocutory
application, r 5 of that Order clearly preserved the originating motion we have been discussing by directing that:
‘All other proceedings in and applications to the court may, subject to these rules, be taken and made in the same manner as they would have been taken and made if these rules had not been made.’
This, without any doubt, meant all proceedings (ie, including the originating notice of motion) other than those already provided for in the preceding rules 3 and 4, viz, actions and proceedings in or in relation thereto. These “all other proceedings” were subject to the rules, to be taken under the old procedure, if not forbidden or otherwise provided for by the rules. Section 51 of the Supreme Court Ordinance, No 7 of 1893, likewise accomplished the same end, by saving existing practice and procedure when neither that Ordinance nor the Rules of Court 1893 made provision for them.
There is no record to be found of the application to the Supreme Court for the issue of the high prerogative writ of mandamus in the latter half of the 19th Century, in the old case of Regina Ats Conrad v Mayor and Town Council ((1865), LRBGOS 173). The report of it, however, shows that a motion for a rule for the prerogative mandamus was moved by a Mr Haynes-Smith, counsel for Mr Conrad. As proof that Mr Haynes-Smith was a barrister, see p 222 of the above report. The records of the case unfortunately cannot be found, and there is no indication from the report of it that an attorney-at-law initiated the process, though from the foregoing account of the practice in relation to motions which I have related, I have no doubt that an attorney must have so done. The motion being originating, it is reasonable to assume, I think, in view of the practice of the court in 1865 which we have noticed above in relation to that kind of proceeding, that it was the function of an attorney to do so.
The headnote of Conrad’s case (Reg Ats Conrad v Mayor and Town Council (1865), LRBGOS 173) postulates mandamus would not lie where a plaintiff has other remedies open to him; but that is not an accurate headnote of the case. A careful reading of the three judgments will show there was a division among the members of the court on the question whether there was jurisdiction in the Supreme Court of Civil Justice to let the writ go. Beaumont CJ, considered, so far as his decision was concerned, it was unnecessary to decide the point. It is evident, however, he did think there was jurisdiction to issue the writ, but decided not to do so because he thought there were other remedies available to the applicant.
On the other hand, there can be no doubt about the emphatic pronouncement of Beete J, against the court’s jurisdiction to issue the writ in which Norton J, agreed Beete J, said:
‘The conclusion at which I have arrived after the best consideration I have been able to give to this case is that the objection taken on behalf of the Mayor and Town Council to the jurisdiction of this Court and its authority to issue a High Prerogative writ of mandamus is well founded and that the writ now the subject of our judgment ought never to have gone forth.’
And Norton J, said: “I concur with His Honour Mr Justice Beete in holding that no court in this Colony has jurisdiction to issue the High Prerogative writ of mandamus...”.
The headnote therefore reflects only the minority view of Beaumont CJ, on the ground why he rejected the motion, whereas the real ground was that the writ was refused because there was no jurisdiction to grant it.
The prerogative writ is an ancient remedy entirely peculiar to the Queen’s Bench Division of the High Court of Justice in England, a superior court of record. When one reads the report of Conrad’s case (Reg Ats Conrad v Mayor and Town Council (1865), LRBGOS 173), one cannot fail to see there is merit in the judgment of both majority and minority judges why the
prerogative order of mandamus should not have issued. One can well understand and sympathise with the view of the learned Chief Justice who was evidently unimpressed by the want of any equivalent to the writ in Roman Dutch law as a reason why the writ should not be available here. So far as His Honour was concerned, he would have been quite prepared to let the writ go had there been no other remedy available to the applicant Conrad, but in strict legal theory it is questionable whether the learned Chief Justice could have properly done so since there was indeed a writ analogous to habeas corpus under Roman Dutch law, namely, the writ de homine libero exhibendo to secure the right to personal liberty of persons who were imprisoned without trial.
On the other hand, the majority view as expressed by Beete J, that the application was “an attempt to introduce into our practice a proceeding hitherto unknown to this court, and for the carrying on of which there is no machinery at our command, and considering as I do that this court had no power to assume the authority it is asked to exercise”, is equally appreciated. All three of the judges, however, it would appear, fully appreciated the need for legislation in the colony empowering the issue of prerogative writs, although they differed on the question whether the lacuna could be supplemented by judicial remedy. There can be no doubt, however, that the view of the majority was the correct one. The Chief Justice could not bring himself to believe the subject’s right to liberty could ever depend on whether or not a remedy to secure its protection was available under Roman Dutch law. He considered the Supreme Court was bound to protect liberty; and in fact habitually secures protection for liberty by proceedings analogous to habeas corpus so as to do justice; and in so doing, the court acts on the clearest principle of law. In fact, he considered the court would be lacking in its sacred duty if it neglected this jurisdiction.
But with such a clear statement from the majority of the judges on the lack of jurisdiction in the Supreme Court of Civil Justice to issue the prerogative writ of mandamus, and, it must follow, any other writ of a kindred nature, I think it is reasonable to conclude that between 1865 and 1893 (the significance of which will be apparent in a moment), no motion for a prerogative writ was brought again. No applicant could have hoped to succeed in obtaining any one of the four prerogative writs, during that period, in the face of such a clear judicial pronouncement of a lack of jurisdiction in the Supreme Court to issue it; not, at any rate, until the law was amended to give the court such jurisdiction. But I think it is also reasonable to say that it was probably the difference of judicial opinion in Conrad’s case (Reg Ats Conrad v Mayor and Town Council (1865), LRBGOS 173) revealing the lacuna in our judicial system of such vitally important judicial remedies as prerogative writs that was partly responsible for the legislation which was to follow. It is most significant that the legislation came at a time when both civil and criminal Supreme Courts were being reconstituted and re-organised and given jurisdictions on the same footing as the High Court of Justice in England. I believe this is no misstatement to make as the comprehensive programme of legislation in the period 1893-1900 with respect to the Supreme Court, its practice and procedure and the regulation of its legal profession bears evidence of it. It is evident that the whole idea behind the scheme of re-organisation was to bring, as far as possible, both civil and criminal branches of the laws of the then colony of British Guiana into line with the jurisprudence of England. But the legislators were trying to move too swiftly. That is very evident for s 1 of Ordinance No 1 of 1897 provides indisputable evidence of this fact. It was that section which was responsible for the confusion that resulted from the abortive attempt to engraft English civil procedure on the prevailing system of Roman Dutch law of the time. Confusion necessarily followed because there was an attempt to put new wine into old wine-skins, to blend indigenous and alien systems together without abolishing the Roman Dutch law
altogether. A validating and repealing Ordinance had to be passed (evidently owing to the observations of Mr Justice Atkinson in Henriques v Henriques ((1897), LRBG 101)) in order to remove doubts about certain proceedings taken since introducing the English procedure. Thus, Ordinance No 1 of 1897 was repealed barely one year after it became law.
As I said, the year 1893 was of much significance in the history of the Supreme Court, for exactly 28 years after Conrad’s case (Reg Ats Conrad v Mayor and Town Council (1865), LRBGOS 173) jurisdiction to issue prerogative writs was conferred on it. Section 3 (1) of the Supreme Court Ordinance, No 7 of 1893, abolished the former Courts of Civil and Criminal Justice of British Guiana and consolidated them into one modern “superior court of record”, to wit, the Supreme Court of British Guiana. On this superior court of record, s 3 (2) of Ordinance No 7 of 1893 conferred “all the authorities, powers and functions belonging or incident to such a court [ie, a superior court] according to the law of England”. The Queen’s Bench Division of the High Court of Justice is one of the superior courts of record the jurisdiction of which was transferred to the High Court of Justice by s 16 (2) of the Judicature Act 1873. Traditionally associated with the issue of prerogative writs, including certiorari, is the Queen’s Bench Division of the High Court of Justice. The celebrated case of Greenvelt v Burwell ((1700), 1 Ld Raym 454) bears witness to this fact. There, certiorari issued to review disciplinary decisions of the censors of the College of Physicians, and Hold CJ, said:
‘It is a consequence of all jurisdictions to have their proceedings returned here by certiorari to be examined here.. Where a court is erected by statute, a certiorari lies to it...’
The position then in the year 1893 was, that the Supreme Court of British Guiana was being vested with jurisdiction to grant all “authorities, powers and functions” of the Queen’s Bench Division of the High Court of Justice in England (s 3 (2)), together with the ancillary miscellaneous jurisdiction (in s 36) to grant, either absolutely, or on such reasonable terms as it thinks fit, “all the remedies or reliefs whatsoever to which any of the parties appear to be entitled” when the court exercises any one or more of the several jurisdictions vested in it, that is to say, irrespective of whether those remedies or reliefs originated from statute, common law or equity. Section 36 of our Ordinance of 1893 (now s 33 of Cap 7) was modelled on s 24 (7) of the Judicature Act 1873, and it empowered our Supreme Court, in the exercise of its jurisdiction under s 3 (2), ibid, concurrently to grant all the abovementioned remedies so as to determine completely and finally the entire controversy between the parties before it and to prevent a multiplicity of legal proceedings.
At the present day, this very same jurisdiction to approach the High Court to issue the prerogative writ is preserved in s 3 of Cap 7 by the Guyana Independence (Adaptation and Modification of Laws) (Judicature) Order made under the Guyana Independence Order, 1966, in the following way:
‘Subject to the provisions of the Guyana Independence Order, 1966, and of any other statute for the time being in force, the court shall have and may exercise all such jurisdictions, authorities and powers and shall discharge the like functions as belonged and were incident to the Supreme Court of British Guiana immediately before the 26th May 1966.’
I believe I am fortified in the above conclusion by what was said, albeit obiter, by Cummings JA, in Re Sarran (1969), 14 WIR at pp 367-68. I think his statement of the matter of the jurisdiction of the High Court to make an order in a proper case upon application for certiorari fully supports me.
It therefore seems clear that by s 3 of the Supreme Court Ordinance, Cap 7, there is conferred, inter alia, on our High Court, the ancient supervisory jurisdiction of the old Court of King’s Bench “to enquire and be informed”, by certiorari
either on its own motion, or on that of the subject, as to such matters on which information is demanded in order that a check may be kept on inferior tribunals from either exceeding their jurisdictions or committing errors which are apparent on the face of the record. “The King had... an inherent common law right... to have a certiorari.” (See R v Berkley and Bragge ((1754), 1 Keny 80, Say 123, Dunning 13, 96 ER 923, 16 Digest (Repl) 449, 2569).) But in the case of the subject, the writ issues only upon cause shown on application by way of motion upon affidavit.
What clearly happened in 1893 then was, that the legislature had conferred a jurisdiction of a novel kind on our Supreme Court with either an absolute or discretionary jurisdiction to grant all such remedies whatsoever In the light of what we have considered above, this ancillary jurisdiction must include the power to issue certiorari, although in relation to that remedy one would hardly consider, in view of s 3, that a specific power was at all necessary in s 33, because it is a well-known rule of interpretation that where an Act confers a jurisdiction, it impliedly also grants power to do all such acts, or to employ such means as are essentially necessary to its execution. This idea is expressed in the maxim cui jurisdictio data est, ea quoque concessa esse videntur sine quibus jurisdictio explicari non potuit.
When, therefore, Lennox Arthur and Calvin Hermanstyne invoked the jurisdiction of the High Court by their motion for the order nisi calling on the respondents, Mr Brutus and the Public Service Commission, to show cause why a writ of certiorari should not issue, it appears to me their procedure was unquestionably referable to s 3 of the Supreme Court Ordinance, Cap 7. Admittedly, the rubric of every originating summons should be intituled, (a) in the matter in which the question arises, and (b) in the matter of the Ordinance under which the application is made. (See Re Law ((1842), 4 Beav 509, 11 LJ Ch 118, 6 Jur 615, 49 ER 436, 47 Digest (Repl) 215, 1802).) A failure to state (b) in the rubric is, however, not fatal to the application.
In Re Law ((1842), 4 Beav 509, 11 LJ Ch 118, 6 Jur 615, 49 ER 436, 47 Digest (Repl) 215, 1802), when the rubric of a petition was defective, the Master of the Rolls said ((1842), 4 Beav at pp 510-511):
‘The title of the petition is merely ‘In the matter of Law’, not noticing in any way the statute which gives the Court the jurisdiction, and not noticing in any way the sort of business or matter in which the Petitioner Mr Law is at all concerned. I have looked at the Act of Parliament, and I cannot say that the Court has not jurisdiction because the petition is thus headed, though it is manifestly quite contrary to what is the usual course of proceeding, and it is besides very inconvenient. The convenience of stating upon the title of the petition the matter to which the petition relates, and the foundation of the jurisdiction which the Court is to exercise in such cases, is very manifest. There is no suit or other matter pending in which the Court has obtained jurisdiction and it would, therefore, be very convenient to state it, though, as I said before, I do not think the Court has not jurisdiction because of the omission in the title.’
But that was in respect of a petition. In the case of certiorari it is otherwise. It is not required to state specifically which section of any Ordinance under which the application for the remedy was made. It is sufficient if the action be intituled, as in the case here, (a) “In the High Court of the Supreme Court of Judicature” and (b) “In the matter of an application by Lennox Arthur and Calvin Hermanstyne for a writ of certiorari” because the mere statement as to (a) is an indication that the High Court’s jurisdiction is under Cap 7 being invoked in the matter. (See Re Barrett ((1869), 28 UCR 559 (Can), 16 Digest (Repl) 522, *1448).)
Further, as was said by Hall VC, in Re Baker ((1879), 10 Ch D 165) ((1879), 10 Ch D, p 165):
‘I do not think that in asking an order from the court a party is bound to state under which Rule or Order he proposes to move, and it frequently
happens that parties move under a particular Rule, and then when they find it is a wrong one, turn to another and an order is made.’
It seems to me the above dictum of Hall VC, may fittingly extend to this case. Mr Gibson’s argument for the issue of certiorari having been based, as we have seen, on an erroneous view of s 31 of the Supreme Court Ordinance, Cap 7, can in no way, it seems to me, detract from the fact that the application under review is supportable under s 3 of that very Ordinance. Put another way: counsel’s ignorance of the correct section under which he launched the application ought, in my judgment, in no way to undermine such support as may be found for it by the court under any other section or sections of the same Ordinance. It seems to me to reject an application on the ground that counsel has misconceived the application when it is otherwise supportable is tantamount to a denial of justice to an applicant under such circumstances should succeed rather than fail ut res magis valeat quam pereat. In every case the important point for the court to determine for itself is whether the application can at all be supported whatever are the views of whoever prefers it.
It seems to me it is the natural consequence of the legislature’s grant of jurisdiction to the High Court to issue certiorari that there should be a corresponding grant to the subject of the right of making of an application for the common law remedy of certiorari, by invoking the same jurisdiction for it. I think the grant of the one by the legislature necessarily conduces to the making of the other in fulfilment of the maxim ubi jus ibi remedium – Ashby v White ((1703), 2 Ld Raym 938, 1 Bro Part Cas 62, Holt KB 524, 6 Mod Rep 45, 1 Salk 19, 3 Salk 17, 14 State Tr 695, 1 Smith LC 12th Ed 266, 1 ER 417, 1 Digest (Repl) 26, 197).
The learned Solicitor-General, however, has forcefully contended that for the present application to be valid, the Ordinance under which it is made must have expressly provided for the making of an application for the remedy of certiorari and that neither s 3 nor s 33 in fact so does. I am sorry to say I cannot agree with him for that seems too narrow a view to take of the matter. The very nature of the common law writ which is discretionary must, I think, necessarily preclude any specific or express grant of it. Not being a writ of right, it is, for that very reason, made available to the subject in two stages – the nisi and absolute – and will not be granted unless sufficient cause be shown. As I see it, although s 3 appears solely to confer jurisdiction, both “the right (the jurisdiction) and the remedy (certiorari) are given uno flatu and the one cannot be disassociated from the other” per Lord Watson in Barraclough v Brown ( AC 615, 66 LJQB 672, 76 LT 797, 62 JP 275, 13 TLR 527, 8 Asp MLC 290, 2 Com Cas 249, HL, affg (1896) 65 LJQB 333, CA, 16 Digest (Repl) 132, 160).
Let me give an example of what I mean. “Suppose I am a judgment-creditor in respect of a money judgment, s 37 of the Summary Jurisdiction (Petty Debt) Ordinance, Cap 16, immediately entitles me to a writ of execution for its recovery unless the Court Otherwise directs, while s 41, ibid, expressly entitles me at any time within four years after judgment to apply for the writ of execution. That is my right. No matter of discretion is involved. The writ is there for my asking at any time within four years from judgment. Not so, however, in the case of a common law writ of certiorari. I am not entitled to it as of right as I am to a writ of execution. I have to show cause why it should be granted me and unless I do so, my application for it will be rejected. It is not therefore possible to make an application for common law certiorari in the way that I would make one for a writ of execution, and it is suggested it is for this reason that no section of any Ordinance can be found which expressly makes provision for the grant of that writ.” This being the case, we are thrown back on the clear provisions of the introductory clause of sub-section (1) of s 42 of the Ordinance for a solution to the problem. This clause runs as follows:
‘Notwithstanding anything to the contrary in any Ordinance or rule, a barrister or a solicitor shall be entitled to act alone and have audience...’
It seems to me the meaning of the above provision is perfectly clear: it means that in spite of all that has been related to be the law, practice and procedure in relation to the definition of functions of barristers and solicitors, all that was now being abrogated by s 42 (1) with a view to entitling the barrister to act alone, ie, to act uninstructed by solicitor, and with a view to entitling the solicitor to have audience in cases when under s 42 (1) B (f) any Ordinance permits applications to the supreme Court to be made for a relief or remedy. Thus, there was granted as from 1931 to both branches of the profession, privileges which neither hitherto enjoyed in relation to the issue of prerogative writs.
Between 1893 and 1931, it was obligatory on a barrister to be instructed by a solicitor in relation to applications by way of motions for any relief or remedy under any Ordinance, including the prerogative writs. However, after 1931 in the case of such applications, it was, on the true interpretation of the introductory clause of s 42 (1) clearly the intention of the legislature to permit barristers the option of sharing in what was essentially a solicitor’s function. (See per Stoby C, in Mahabir v Singh (1966), 9 WIR 475 at p 479.) Today, the law is not what it used to be before 1931. Now a barrister may, if he cares, issue a high prerogative writ (ie, act alone) and also move the motion which it entails before the High Court (ie, have audience) uninstructed by solicitor. But it would appear that this liberty to practise as a solicitor in relation to prerogative writs, ie, “to perform or do any act or thing which is in England usually performed or done by a solicitor and not by a barrister”, was not widely appreciated at any time after 1931, and it is probably for this reason that at the present day, as the law reports indicate, counsel is invariably instructed by solicitor in matters of that kind. Although, it must be conceded, counsel has every right to practise in strict conformity with the traditions of the English Bar to which he is called (see s 42 (2)); and to have solicitor interposed between himself and client in all matters under s 42 (1) B, C of the Ordinance; only, if he so elects, he will not be entitled to his costs unless the judge certifies that the case is a fit one for him to receive them.
Now, having found in keeping with the approach I have outlined at the beginning, that s 3 of the Supreme Court Ordinance, Cap 7, does indeed provide for the making of an application for the judicial remedy of certiorari, I am clearly of opinion that this matter does not admit of any further investigation. As I have said, this view of mine renders unnecessary and irrelevant any investigation into the ratio decidendi of the three constitutional cases abovementioned, with a view to determining whether the remedy of certiorari is thereby afforded the applicants under Art 125 (8) of the Constitution of Guyana. Speaking entirely for myself, what has been decided by those cases now remains the law of this country, and that matter in so far as I am concerned is closed. It is my considered view that the application by way of originating motion for the order nisi under s 42 (1) B (f) was properly preferred by Barrister Gibson acting alone; that he, by virtue of s 44 of the Ordinance is entitled “to practise as a solicitor” within the meaning of the Ordinance; and that the signing of his name with the designation “Barrister-at-Law acting as solicitor for the applicants/appellants” was proper.
The second question must, therefore, be answered in the affirmative.
I would allow this appeal with the costs here and below, set aside the decision of the learned trial judge, and remit the matter to him with the intimation that he is possessed of jurisdiction to entertain the application for the order absolute. I am in agreement with the order as proposed by the learned Chancellor.
(1972) 19 WIR 63
Chitaria Outram v Saffie Mohamed
COURT OF APPEAL OF GUYANA
PERSAUD JA IN CHAMBERS
29 JULY, 26 AUGUST 1972
Appeal – Application by appellant to be admitted in forma pauperis – Application by respondent for order for security for costs – Order to be admitted in forma pauperis made – Whether order for security can then be made – Federal Supreme Court Rules 1955 [G], O 2, r 21 (2).
Appeal – Security for costs – Plaintiff (appellant) suing in her reprsentative capacity – Order of Court dismissing action does not make costs recoverable against her personally – Whether order for security can be made against her.
In her capacity as the administratix of the estate of her deceased son, the appellant brought an action against the respondent which was dismissed, the court ordering her to pay the respondent his costs which were fixed. The appellant appealed and applied to be admitted as a poor person to prosecute her appeal. The respondent applied for an order for security for costs.
Held:(i) that where an appellant obtains leave to appeal in forma pauperis he shall not be required to lodge security;
(ii) that where an appellant sues in his representative capacity, he should not be made to give security personally.
Application of appellant granted; application by respondent refused.
Cases referred to
Wyld v Silver  2 All ER 809,  1 WLR 863, 106 Sol Jo 409, CA, 50 Digest (Repl) 493, 1744
Bampton v Cook  1 All ER 457,  1 WLR 450, 98 Sol Jo 145 CA, 50 Digest (Repl) 493, 1741
Conway v George Wimpey and Co Ltd  1 All ER 56,  1 TLR 215, 94 Sol Jo 823, CA, 50 Digest (Repl) 493, 1739
Hills v London Trnsport Board  4 All ER 230, 81 Sol Jo 882, CA, 51 Digest (Repl) 847, 4009
Application for leave to be admitted in in forma pauperis. Application for an order for security for costs.
D Jagan (instructed by HB Fraser) for the appellant
FR Allen with Robin Stoby for the respondent
PERSAUD JA. The appellant in her capacity as the administratix of the estate of one Samuel Putton, deceased, sued the respondent in the High Court, and on 21 March 1972, the action was dismissed, the Court ordering the appellant to pay to the respondent his costs of the action fixed in the sum of $750. Being dissatisfied with the decision, the appellant appealed to the Court of Appeal on 11 April 1972. On 3 June 1972, the respondent filed a summons in which he sought an order for security of the costs of and incidental to the hearing of the appeal.
Before that application could be heard, an ex parte application was filed on 9 June on behalf of the appellant seeking an order to be admitted in froma pauperis on the ground that the estate of which she was the administratix, and on behalf of which she had sued, was not worth $120 “except its interest in the subject-matter of the appeal”. That application was accompanied by the usual certificate of counsel.
On 17 June, Crane JA, ordered that a copy of the ex parte application be served upon the respondent who was given leave to file and serve an affidavit in reply within seven days of the papers being served upon him. Pursuant to the order of Crane JA, an affidavit of reply was filed on 24 June, but counsel for the respondent has asked that that affidavit be struck off the record, and he sought to rely instead on an affidavit which was sworn to on 4 July and filed on 10 July, well outside the prescribed time.
Upon the matter coming on for hearing before me, I ordered that the time fixed in the order of Crane JA, be extended to 10 July, to accomodate the later affidavit. I, however, refused the application to extend the time to 27 July when a further affidavit was filed on behalf of the respondent. In the affidavit, the respondent has sworn that the appellant has brought this appeal in her capacity as the administratix of the estate of Samuel Putton, deceased, and that the appellant as well as the beneficiaries of the said estate are persons of worth, and “capable and ought to be made to provide security for costs”.
Before me learned counsel for the respondent has submitted the following:
1. The plaintiff is suing in a dual capacity, ie, in her own right, and as administratrix of the estate of Samuel Putton, deceased.
2. She is the owner of property by transport No 1742 which is worth $1,800 half of which has been transported to her daughter for $200.
3. She is in possession of property in excess of the amount which a person seeking legal aid is required to have.
4. Under the Accidental Deaths and Workmen’s Injuries (Compensation) Ordinance, Cap 112, she need only have brought the action as administratrix of the estate as the beneficiaries own property in their own right.
And in his affidavit the respondent declared that the order for security should be made on the following grounds:
‘(a) the plaintiff is a nominal person;
(b) poverty as such is not a bar to the making of such an order;
(c) the Order should provide for both present and past costs.’
The plaintiff has not sued in a dual capacity; she has sued as administratrix of the estate, as she must do if she sued under the Ordinance referred to above, s 4 of which provides as follows:
‘The action shall be brought in the Supreme Court and shall be for the benefit of the wife, husband, parent, and child of the person whose death has been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased...’
The plaintiff is the owner by transport of lot 31, Kersaint Park, part of Plantation La Bonne Intention, an undivided half of which she has transported to Ramia Katwara, widow, who, according to the defendant, is her daughter. The original value of the entire lot as stated in the transport was stated at $329.31 and she sold the undivided half to Katwaru for $250. These events occurred in 1962 and 1966. In all probability, the plaintiff’s share in the property has increased in value, but, apart from the respondent’s affidavit, there is no independent evidence as to the increase, if any. The fact that a daughter may herself own property is, to my mind, irrelevant to the matter in hand.
But assuming that the plaintiff does have property, the value of which exceeds $120, can she be made to provide security in her personal capacity when she has sued in her representative capacity? I have examined the original file in this matter, and the order entered is not the order tendered in the proceedings now
before me. The order entered does state:”... and that the defendant do recover from the plaintiff the costs of this action fixed in the sum of $750...”, but it also carries the full rubric of the action as this judgment carries, that is, indicating that the plaintiff was suing in her representative capacity only. In my opinion, unless the order speaks of recovering costs against her personally, it must mean in the capacity in which she has sued. Perhaps there would have been no room for argument had words been used in the body of the order to indicate that the costs were so recoverable.
The subsantive matter engaging my attention is the application for leave in forma pauperis, as everything that has transpired has done so upon the order of Crane JA. Nevertheless, much of the argument centred around the question of security, and counsel for the defendant has urged that even if I were mindful of making an order for leave, this does not mean that an order for security cannot be made. This submission seems to have overlooked O 2, r 21 (2) of the Federal Supreme Court Rules which says that, “Where an appellant obtains leave to appeal in forma pauperis, he shall not be required to lodge security for the costs of the respondent ...”. This would seem to put an end to the matter were the plaintiff to be given leave in forma pauperis.
But I have given consideration to the cases referred to by learned counsel. And in examining the English cases, one must bear in mind that the English provisions are different from ours. The English do not have a rule such as the one quoted above. Their Legal Aid and Advice Act 1949 contemplates the making of regulations to make provision “as to the cases in which and the extent to which a person receiving legal aid may be required to give security for costs ...” and even though no regulations have been made, at least up to 1962, their O 59, r 10 (5) of the Rules of the Supreme Court 1965 provides that the Court of Appeal may, in sepcial circumstances, order that such security shall be given for the costs of an appeal as may be just.
In Wyld v Silver ( 2 All ER 809,  1 WLR 863, 106 Sol Jo 409, CA, 50 Digest (Repl) 493, 1744) an assisted person was made to give security for costs. His assets were ascertainable, and he had been ordered to make a maximum contribution to the legal aid fund. This was after he had had judgment entered against him with costs estimated at $1,500 and he had obtained a civil aid certificate to take the matter to appeal. It was recognised that in the ordinary way, an order for security for costs is not made against an assisted person, but this does not mean that it can never be made under the Act. In that case, Russel LJ, expressed himself thus ( 2 All ER at p 810):
‘It would not be right to say that security for the costs of an appeal should never be ordered against a legally assisted appellant. The Legal Aid and Advice Act 1949 itself envisages the possibility. On the other hand, it would not be right to make an order for a sum which would have the effect of debarring a legally aided person from pursuing an appeal which the appropriate legal aid committee considers is reasonable.’
And in Bampton v Cook ( 1 All ER 457,  1 WLR 450, 98 Sol Jo 145 CA, 50 Digest (Repl) 493, 1741), the plaintiff as an assisted person in the court below had been ordered to make a substantial contribution which was regarded as a “special circumstance” to warrant an order for security being made.
In Conway v George Wimpey and Co, Ltd ( 1 All ER 56,  1 TLR 215, 94 Sol Jo 823, CA, 50 Digest (Repl) 493, 1739), an order for security was made against the plaintiff who was not then an assisted person. Later he became an assisted person, and it was held that until the regulations envisaged by the Act were made, and in the absence of special circumstances, the order would be dischrged. In the course of his judgment Cohen LJ, said ( 1 All ER at p 56):
‘It is true to say that under the old practice of obtaining leave to conduct the proceedings as a poor person was to suspend an order for security for
costs, but it does not necessarily follow that the procedure would be the same now that the Legal Aid and Advice Act 1949 has come into force and the procedure with regard to poor persons has lapsed.’
And (ibid at p 57):
‘... it would be inappropriate to make an order for security for costs at a time when an emergency certificate is in force. In those circumstances, I think it is inappropriate that the order for security should stand.’
The object of referring to the cases above is to show that it is possible to make an order for security notwithstanding the appellant has been the recipient of legal aid, but this is possible only because the relevant UK legislation provides for the eventuality.
Counsel has further submitted that the defendant is entitled not only to an order in respect of future costs, but also past costs. No doubt he has in mind the costs awarded in the court below which have not been paid. The cases show that there are instances where such an order can be made if there are special circumstances, among which is the appellant’s inability to meet the order as to costs; but the mere failure of an appellant to pay costs ordered against him in the court below is not of itself a sufficient ground for ordering security, nor is it sufficient merely to state that an application has been made to the appellant to pay the costs of the action in the court below, and that such costs have not been paid. (See Hills v London Passenger Transport Board ( 4 All ER 230, 81 Sol Jo 882, CA, 51 Digest (Repl) 847, 4009).)
None of the cases to which I have been referred concerned an appellant who was appearing in a representative capacity. If an appellant appears in his representative capacity, particularly where he is compelled by statute so to do, it does not seem to me to be right to enjoin him to give security personally. It might have been a different matter if, for some good reason, the trial judge had ordered the appellant personally to pay the costs.
In this matter I feel, but with some hesitation, that the circumstances warrant leave being given to the appellant to pursue this appeal in forma pauperis in her capacity as administratrix of the estate of the deceased, Samuel Putton, and as a consequence there will be no order for security. Costs in the cause.
Application for leave to appeal in forma pauperis granted.
(1972) 19 WIR 66
Una Welch v Shafi Janali
COURT OF APPEAL OF GUYANA
PERSUAD JA IN CHAMBERS
29 JULY, 26 AUGUST 1972
Appeal – Security for costs – Affidavits in support of application – Contents of affidavits – Refusal of appellants to furnish security upon being requested to do so by respondent’s solicitor’s allegation of appellants’ impecuniosity – Whether sufficient ground to order security – Supreme Court Rules 1965 [UK] O 23, r 1.
The appellants launched an appeal against a judgment delivered against them by a judge in the Supreme Court. The respondent applied for an order for security for costs, alleging impecuniosity of the appellants.
Held: that impecuniosity is a special circumstances which would persuade the court to make an order for security for costs.
Per curiam “The court should guard against stiflig the right of appeal which an unsuccessful litigant at first instance may have by ordering an appellant to give security for costs, or by fixing such security for costs as would make it impossible for him to prosecute his appeal. On the other hand, a respondent should not be made to suffer at the hands of an impecunious appellant who launches a frivolous appeal with the avowed object of depriving the respondent of the fruits of his judgment, or of creating unnecessary delay.’
Application for security for costs granted.
Cases referred to
Hill v Harland  2 All ER 219, CA 51 Digest (Repl) 847, 4011
Hills v London Transport Board  2 All ER 230, 81 Sol Jo 882, CA, 51 Digest (Repl) 847, 4009
Morgan v Bowles  1 QB 236, 63 LJQB 84, 42 WR 269, 38 Sol Jo 43, 10 R 62, DC, 33 Digest (Repl) 510, 89
Weldon v Maples, Teesdale and Co (1887-88), 20 QBD 331, 57 LJQB 224, 57 LT 672, 34 WR 154, 4 TLR 147, CA, 51 Digest (Repl) 845, 3984
Stevens v Economic House Builders Ltd  1 All ER 654, 82 Sol Jo 172 CA, 51 Digest (Repl) 988, 5277
Application for security for costs.
FR Allen associated with Miles Stoby (instructed by RS Persaud) for appellants
BO Adams SC for respondent
PERSAUD JA. These are seven applications for security for costs made by the respondent against the seven appellants. There are two affidavits in support of the summons. The first, sworn to by the respondent’s solicitor, merely sets out the fact that a letter requesting the appellants to provide security had been sent, and a reply received in which the request was refused. The second affidavit is sworn to by the respondent’s son, the substance of which is that the appellants have neither movable nor immovable property, and his belief that if an order for costs were to be made against the appellants in the absence of an order for security, the respondent would be unable to collect his costs. He further stated that these actions all arose out of opposition suits which have been pending since 1965, and as a result of the actions, certain execution sales relating to certain properties have been stayed since then. It would appear from the appellants’ solicitor’s affidavit that the trial judge in dismissing the appellants’ claim made no order as to costs.
Learned counsel for the appellants has referred to two cases, viz, Hill v Harland and Wolf, Ltd ( 2 All ER 219, CA 51 Digest (Repl) 847, 4011), and Hills v London Passanger Transport Board ( 2 All ER 230, 81 Sol Jo 882, CA, 51 Digest (Repl) 847, 4009), neither of which is relevant to the matter in hand in my opinion.
The simple point here is whether the respondent has set up a strong enough case upon which an order for security should be made. The court should guard against stifling the right of appeal which an unsuccessful litigant at first instance may have by ordering an appellant to give security for costs, or by fixing such security for costs as would make it impossible for him to prosecute his appeal. On the other hand, a respondent should not be made to suffer at the hands of an impecunious appellant who launches a frivolous appeal with the avowed object of depriving the respondent of the fruits of his judgment, or of creating unnecessary delay.
It is my view that the mere refusal by the appellants to comply with the respondent’s request to furnish security is not a sufficient ground upon which an order for security should be made. The grounds upon which an order for security may be made are set out in O 23, r 1 of the English Rules of the Supreme Court 1965. These are as follows:
‘1. (1) Where, on the application of a defendant to an action or other proceeding in the High Court, it appears to the Court-
(a) that the plaintiff is ordinarily resident out of the jurisdiction, or
(b) that the plaintiff (not being a plaintiff who is suing in a representative capacity) is a nominal plaintiff who is suing for the benefit of some other person and that there is reason to believe that he will be unable to pay the costs of the defendant if ordered to do so, or
(c) subject to paragraph (2), that the plaintiff’s address is not stated in the writ or other originating process or is incorrectly stated therein, or
(d) that the plaintiff has changed his address during the course of the proceedings with a view to evading the consequences of the litigation,
then if, having regard to all the circumstances of the case, the Court thinks it just to do so, it may order the plaintiff to give such security for the defendant’s costs of the action or other proceeding as it thinks just.
(2) The Court shall not require a plaintiff to give security by reason only of paragraph (1) (c) if he satisfies the Court that the failure to state his address or the mis-statement thereof was made innocently and without intention to deceive.’
In addition there may be some statutory grounds as in Morgan v Bowles ( 1 QB 236, 63 LJQB 84, 42 WR 269, 38 Sol Jo 43, 10 R 62, DC, 33 Digest (Repl) 510, 89), and any special circumstances which, in the opinion of the court, render it just to order security as in Welden v Maples, Teesdale and Co ((1887-88), 20 QBD 331, 57 LJQB 224, 57 LT 672, 34 WR 154, 4 TLR 147, CA, 51 Digest (Repl) 845, 3984). In any event it is a matter which is in the discretion of the court.
In the instant case, the only ground alleged is the appellants’ inability to pay costs by reason of the fact that they own no property, but counsel has submitted that poverty itself is not a ground on which an order should be made. He seems to have been minded to frame his submission that way because of the decision in Weldon v Maples (Weldon v Maples, Teesdale and Co (1887-88), 20 QBD 331, 57 LJQB 224, 57 LT 672, 34 WR 154, 4 TLR 147, CA, 51 Digest (Repl) 845, 3984). But in that case, what Bowen LJ, was at pains to say was that the cases in which security may be ordered are not limited to cases of the poverty of the appellant alone. In that case he held where there was a prima facie case of abuse of the process of the court, that would be a ground upon which to make the order. Bowen LJ, was also of the view that the ordinary practice up till then had been “to order that security for the costs of an appeal should be given only upon an affidavit that the appellant had not the means of paying the costs if the appeal was successful”. My apprehension of the position, therefore, is that inability to pay the costs of the appeal through poverty can be a ground for ordering security, but the party seeking the order must show that the other party cannot pay the costs of the appeal. (Per Greer LJ, in Stevens v Economic House Builders, Ltd ( 1 All ER 654, 82 Sol Jo 172 CA, 51 Digest (Repl) 988, 5277).)
But counsel has advanced the argument to the point that a mere statement of poverty is not enough, particularly so where a novel point of law is involved. He may be right if the court is satisfied that a novel point of law is involved, but there is nothing in the pleadings to indicate what that novel point is, except a statement by the appellants’ solicitor in her affidavit to the effect that “the Honourable Chief Justice’s decision on technicality and the legal effect of this constitute a novel point to impede the argument of which the Honourable Court should not make an order for security for costs”. This statement is, to say the least, less than illuminating of the legal point which, it is alleged, arises in these matters.
The truth of the matter is that the respondent is basing his application upon the appellants’ incapacity to pay any costs that may be ordered due to impecuniosity which is, having regard to the authorities, a special circumstance upon which a court can make an order to secure costs. To answer the respondent’s allegation by saying that the respondent’s affidavit does not categorically state that the appellants cannot pay or would not be willing to pay costs would seem to me to be insufficient. I disagree that the respondent is implying poverty in the appellants; on the contrary, he is alleging, as I have already pointed out, that by reason of the appellants not being the owners of property, movable or immovable, they would be unable to meet an order for costs. Surely there is nothing implied in this! I am persuaded that I should make orders for security in these matters. The appellants are ordered jointly to furnish sufficient security in the sum of $750 (seven hundred and fifty dollars) with two sureties within six weeks from date, failing which the usual consequences will follow. Costs in the cause.
Order for security for costs.
(1972) 19 WIR 69
R v Vincent Boothe
COURT OF APPEAL OF JAMAICA
FOX, GRAHAM-PERKINS JJ A, HERCULES JA AG
4 FEBRUARY, 24 MARCH 1972
Court of Appeal – Notice of appeal against conviction in resident magistrate’s court – Grounds of appeal filed – Notice of abandonment of appeal – Whether appellant entitled to abandon appeal – Application to withdraw notice of abandonment of appeal – Principles by which court guided in dealing with such application – Judicature (Resident Magistrates) Law, Cap 179 [J], s 293.
The applicant was convicted by a resident magistrate on an information which charged him with a breach of the Vagrancy Law, Cap 404 [J]. He was sentenced to a term of imprisonment. He gave notice of appeal and thereafter filed grounds of appeal. An application for bail pending the hearing of his appeal was refused. The applicant, for the reasons set forth in the judgment, filed a notice of abandonment of his appeal. In the result he served his sentence and was discharged from prison. Nearly two months later he sought leave to pursue his appeal on the ground that the notice of abandonment he had filed was a complete nullity since there was no provision in the Judicature (Resident Magistrates) Law, Cap 179 [J] which enabled him to abandon his appeal. In the alternative he sought leave to withdraw his notice of abandonment.
Held: (i) that where a person appeals against his conviction in a resident magistrate’s court he is entitled thereafter to abandon his appeal;
(ii) that the applicant had effectively abandoned his appeal;
(iii) that in the particular circumstances of the application leave to withdraw the notice of abandonment must be refused.
Cases referred to
R v West kent Quarter Sessions Appeal Committee Ex p Files  2 All ER 728, 115 JP 522
R v Sutton  1 All ER 928,  1 WLR 375, 53 Cr App R 269
R v Moore  2 All ER 703n,  1 WLR 841, 41 Cr App R 179, 101 Sol Jo 556
Application to withdraw notice of abandonment of appeal against conviction in resident magistrate’s court.
Hugh Small for the applicant
Miss Hylton and A Morris for the Crown
GRAHAM-PERKINS JA delivered the judgment of the court: On 4 February 1972, we refused this application and promised to put our reasons therefor in writing. We do so now.
The applicant was tried and convicted by one of the resident magistrates for St Andrew on 19 November 1970, on an information which charged him with a breach of the Vagrancy Law, Cap 404. He was sentenced to a term of four months’ imprisonment with hard labour. Upon his conviction he gave verbal notice of appeal. Thereafter a rather odd series of events ensued. On 1 December 1970, an application for bail pending the hearing of his appeal was made by Mr L H McLean of counsel on behalf of the applicant to a judge of this court. That application was refused. On 2 December 1970, a written notice of appeal, dated 26 November 1970, and signed by the applicant in person, was filed in the office of the Resident Magistrate’s Court, St Andrew. On 4 December 1970, grounds of appeal dated 2 December 1970, were filed in the same office. These grounds were settled by Mr Gresford Jones, the solicitor who, with Miss Sonia Jones, represented the applicant at his trial. On 8 December 1970, further grounds of appeal were filed, this time by Mr McLean. On 9 December 1970, a written Notice of Abandonment of his appeal, dated 4 December 1970, and signed by the applicant, was filed in the registry of this court. In the result the applicant served his sentence and was discharged from prison on 22 February 1971. To describe the foregoing events as odd is perhaps an understatement but we avoid further comment thereon since we are not seized of all the relevant facts surrounding the quite unusual duplication of representation.
On 13 April 1971, a Notice of Motion was filed in the registry of this Court by Mr Jones on behalf of the applicant. That motion was in the following terms:
‘Take Notice that ... this Honourable Court will be moved for leave whereby the Appeal filed by or on behalf of the accused, Vincent Boothe, and allegedly withdrawn by him on or about the 4th day of December 1970, be heard for the reasons set out in the grounds of appeal filed herein, as also for the reasons set out in the affidavit of Sonia Jones ... and that of the applicant ...’
This motion came on for hearing on 4 February 1972. The applicant was represented by Mr Hugh Small, instructed by Mr Jones Mr Small dealt with the motion in this way. The notice of abandonment of his appeal filed by the appellant was, Mr Small contended, a complete nullity as there was no provision in the Judicature (Resident magistrates) Law, Cap 179, which an appellant could call in aid to enable him to abandon his appeal when once he had invoked the provisions of that Law and appealed against his conviction by a resident magistrate. Once those provisions were set in motion they were required to follow their due course culminating in the determination of the appeal by this court. We regarded these submissions by Mr Small as not a little startling and we so indicated. Mr Small then proceeded to argue, as a necessary alternative, that the applicant should be allowed to withdraw his notice of abandonment and be at liberty to argue his appeal. We were not persuaded by any circumstance advanced that this
was a proper case in which this court would have been justified in exercising its undoubted discretion in favour of the applicant.
We now return to the first limb of Mr Small’s submissions. There can be no doubt that a right to appeal is a creature of statute. “It is most elementary”, said Lord Goddard CJ, in R v West Kent Quarter Sessions Appeal Committee, Ex p Files ( 2 All ER 728, 115 JP 522) ( 2 All ER at p 730), “that no appeal from a court lies to any other court unless there is a statutory provision which gives that right of appeal The decision of every court is final, if it has jurisdiction, unless an appeal is given by statute.” The right to appeal which the applicant exercised in this case was the right given by s 293 of Cap 179. The sections following in that part of Cap 179 under the rubric “Criminal Appeals” prescribe the several steps in the procedure to be followed by an appellant in the prosecution and exercise of his right of appeal. Section 296 (1), for example, requires an appellant “within twenty-one days after the date of the judgment to draw up and file with the Clerk of the Courts for transmission to the Court of Appeal the grounds of appeal, ...”. But the subsection in very positive terms, declares that upon the appellant’s failure to file his grounds of appeal within the time therein prescribed “he shall be deemed to have abandoned his appeal.” Clearly, the appellant may himself bring about a state of things the consequence of which is that he is deemed to have abandoned his appeal. It would, in our view, be a remarkable conclusion if it were to be held that an appellant could, by his mere failure to act, cause his appeal to be taken to be abandoned, and yet be unable to achieve that result by a deliberate and voluntary act on his part. To state the proposition in these terms is to expose its fundamental fallacy. It is of course true that no section in terms gives an appellant a “right” to abandon his appeal. It is equally true, however, that no section denies him that right. Certainly he has a statutory right to pursue his appeal. But he is not denied his right at common law not to pursue his appeal if he so chooses. Jurisprudentially, a legal right in its strictest sense is one which constitutes the correlative of a legal duty. But legal rights are not limited thereto. There is a wider sense in which the term “legal right” is used and in which it does not necessarily correspond with duty. Legal theory recognizes the existence of legal rights of four distinct kinds. One of these is that specie which has come to be labelled “liberty and no-right”.
‘Just as my legal rights (in the strict sense) are the benefits which I derive from legal duties imposed upon other persons, so my legal liberties (sometimes called licences or privileges) are the benefits which I derive from the absence of legal duties imposed upon myself. They are the various forms assumed by the interest which I have in doing as I please. They are the things which I may do without being prevented by the law. The sphere of my legal liberty is that sphere of activity within which the law is content to leave me alone. It is clear that the term right is often used in a wide sense to include such liberty. I have a right (that is to say, I am at liberty) to do as I please with my own; but I have no right and I am not at liberty to interfere with what is another’s. I have a right to express my opinions on public affairs, but I have no right to publish a defamatory or seditious libel. I have a right to defend myself against violence but I have no right to take revenge upon him who has injured me.’
(Salmond On Jurisprudence, 12th edn, p 42)
All these and a host of other rights or liberties are not conferred by statute. They exist to the extent that their exercise is not prohibited by statute. In this sense of a legal right recognized by the common law it is, in our view, beyond argument that an appellant has a legal right to file a notice of abandonment of his appeal and thereby determine the proceedings which he initiated. And we so held. To hold otherwise would lead to certain predictable and alarming results. Let a case be supposed where an accused on conviction on the clearest possible evidence
is sentenced to a short term of imprisonment, say three months. He gives verbal notice of appeal. His application for bail pending the hearing of his appeal is refused. He knows that his appeal may not be heard for some four to six months, and that the time he spends in custody will not count towards his sentence. Two weeks after his conviction, during which time he has filed his grounds of appeal, he is persuaded, on the advice of his attorney that his chances of success in this court are very slim, or perhaps non-existent, to reconsider his decision to appeal. He very wisely decides that he wishes to commence his term of imprisonment immediately. Can it be that he is compelled to await the dismissal of his appeal by this court before he is allowed to start serving his sentence? We unhesitatingly reject any such proposition as patently invalid and one from which reason and common sense recoil.
We turn now to the second limb of Mr Small’s submissions. This court has said more than once that it will not entertain an application to withdraw a notice of abandonment unless it is demonstrated affirmatively that something in the nature of a mistake or fraud was the operative cause of the filing of such a notice. In so holding this court chose to adopt and to follow the decisions in such cases as R v Sutton ( 1 All ER 928,  1 WLR 375, 53 Cr App R 269) and R v Moore ( 2 All ER 703n,  1 WLR 841, 41 Cr App R 179, 101 Sol Jo 556). The affidavit put forward by the applicant and on which this court was asked to exercise its discretion in his favour disclosed that he signed the notice of abandonment in these circumstances. He had spent some considerable time in custody as an appellant before he was advised that his application for bail had been refused. It then seemed to him that he would be obliged “to spend a further substantial period in custody until the appeal was heard, and if it failed [he] would be compelled thereafter to serve the sentence, and fearing that this may happen, [he] became disheartened and being also disappointed at the refusal of the bail, [he] signed the withdrawal of appeal”. In these circumstances we could not say that the applicant had shown any ground on which we would have been justified in permitting him to withdraw his notice of abandonment.
In the result we were constrained to hold:
(i) that where a person appeals against his conviction in a Resident Magistrate’s Court he is entitled thereafter, of his own volition, to abandon his appeal;
(ii) that the applicant herein had effectively abandoned his appeal; and
(iii) that in the particular circumstances of the application herein leave to withdraw his notice of abandonment should not be granted to the applicant.
(1972) 19 WIR 72
R v Percival Moore
COURT OF APPEAL OF JAMAICA
LUCKHOO P AG, FOX AND GRAHAM-PERKINS JJ A
15 MARCH, 14 APRIL 1972
Criminal law – Jury – Verdict – Indictment charging shooting with intent and illegal possession of firearm – Both offences depending on evidence from same source – Verdict of not guilty of shooting with intent but guilty of illegal possession of firearm – Refusal by trial judge to accept verdict of not guilty on ground of inconsistency – Whether trial judge right in refusing to accept verdict.
Court of Appeal – Applications for extension of time to appeal and for leave to appeal – Applicant instructing counsel to appeal following conviction and sentence
Applicant escaping from custody – Notice of appeal signed by counsel – Notice invalid – Applicant filing applications after recapture – Whether court should exercise discretion in favour of applicant in view of his escape –Judicature (Appellate Jurisdiction) Law 1962 [J], s 15 (1), (3).
The applicant was put on trial on an indictment containing three counts, the first two of which charged him with shooting with intent and the third with illegal possession of a firearm. Evidence with respect to the second and third counts was given by two detective constables who testified that the applicant had fired a shot at one of them who in turn shot the applicant causing him to fall. They went up to him and removed from his hand a revolver, the subject matter of the third count. The jury returned unanimous verdicts of not guilty on the counts charging shooting with intent and a unanimous verdict of guilty on the third count. The trial judge refused to accept the verdict of not guilty on the second count being of the view that such a verdict was inconsistent with the verdict of guilty on the third count. He directed the jury, in terms which made his disagreement very clear, to reconsider their verdict on the second count. Following a second retirement the jury returned majority verdicts of not guilty and guilty on the first and second counts respectively, and a majority verdict of guilty on the third count. The applicant was then sentenced to ten years and five years respectively on the second and third counts. He thereupon instructed his counsel to appeal. On the day following his conviction and sentence he escaped from the custody of the police. Thereafter his counsel signed and lodged a notice of appeal on his behalf. This notice was, however, invalid since it was not signed by the applicant himself. The applicant was recaptured some six months later. Three weeks after being recaptured the applicant signed a notice of application for extension of time within which to appeal. In this notice he said: “I paid the policeman to let me go on the 17th March 1971 from the custody of the police at Montego Bay. In so doing I was unable to prosecute my appeal within the prescribed time allotted”. He also filed an application for leave to appeal against “conviction and sentence”. He was assigned legal aid in respect of both applications. His attorney-at-law filed two grounds in support of the applications, the first of which he subsequently abandoned. The second ground alleged that the trial judge had erred in refusing to accept the original verdicts returned by the jury. On the hearing of the application it was argued inter alia that the case raised a point of fundamental importance in that the right of a judge to interfere with the verdict of a jury is one which should be exercised very carefully and only in very extreme circumstances and that the right of a jury to return their verdict was one which should never be whittled away.
Held: (i) (per Luckhoo P (Ag)) that no point of fundamental legal importance arose as to the refusal of the trial judge to accept the jury’s first verdict on the second count on the ground that that verdict was inconsistent with the evidence adduced in the case. It was, however, arguable whether the verdicts on the second and third counts were inconsistent or not, but since the applicant had deliberately and unlawfully prevented himself from filing a valid notice of appeal by bribing a policeman to enable him to escape the court should not exercise its discretion in his favour by granting him an extension of time within which to appeal;
(ii) (per Fox JA) that assuming that as a result of the further directions of the trial judge an arguable point of substantial merit had accrued in favour of the applicant the court should, nevertheless, refuse the applications since the applicant’s non-compliance with the rules was the result of his own wilful and criminal act in escaping from custody;
(iii) (per Graham-Perkins JA, dissenting) that there was no inconsistency between the original verdicts on the second and third counts and the trial judge was therefore wrong in refusing to accept the first verdict on the second count. The fact of the applicant’s escape undoubtedly constituted a criminal act attracting the sanctions of the criminal law but should not by itself be decisive of the question whether the applicant should be given leave to appeal out of time. The court should not in the particular circumstances close its eyes to the demands of the justice of the applicant’s complaint and should grant both applications.
Cases referred to
Evans v Bartlam  2 All ER 646,  AC 473, 106 LJKB 568, 53 TLR 689, 81 Sol Jo 549, sub nom Bartlam v Evans, 157 LT 311,
R v Crisp , 76 JP 304, 28 TLR 296, 7 Cr App Rep 173
R v Larkin  1 All ER 217,  KB 174, 112 LJKB 163, 168 LT 298, 59 TLR 105, 87 Sol Jo 140, 29 Cr App Rep 18
R v White  Cr LR 59
R v Meany (1862), Le & Ca 213, 1 New Rep 66, 32 LJMC 24, 7 LT 393, 26 JP 822, 8 Jur NS 1161, 11 WR 41, 9 Cox CC 231
R v Jones  2 All ER 731,  2 QB 456,  2 WLR 1485, 55 Cr App Rep 321
R v Marsh (1935), 25 Cr App Rep 49
R v Jennion  1 All ER 689,  1 WLR 317, 46 Cr App Rep 212
R v Williams  3 All ER 639,  1 WLR 1268, 46 Cr App Rep 463
R v Cottrell (1956), 40 Cr App Rep 46
R v Lesser (1939), 27 Cr App Rep 69
R v Cullum (1942), 28 Cr App Rep 150
Applications for leave to appeal out of time and for leave to appeal against conviction and sentence.
H Hamilton for the applicant
M Wright QC and Courtney Orr for the Crown
LUCKHOO P. (Ag) It is not necessary for me to recite in detail the evidence adduced in this case. The first count relates to the charge that the applicant shot at Ronald Fearon on 10 September 1970, with intent to do him grievous bodily harm. The second and third counts relate to an incident which is alleged to have occurred some 16 days later when the applicant was apprehended. The second count charged the applicant with shooting at Lloyd Morant with intent to do him grievous bodily harm and the third count charged him with the illegal possession of a firearm. The evidence adduced on the part of the prosecution on the second and third counts through Lloyd Morant and Ira McGibbon, both detective constables, sought to show that a 38 calibre revolver was recovered from the hand of the applicant after the applicant had discharged one round of ammunition from it at Lloyd Morant at a range of about three-quarters of a chain and had been felled by a return of fire from Morant’s service revolver. The defence was a complete denial of these allegations, and instead an allegation that the applicant
was speaking to a friend when Morant “stabbed” him in the chest causing him to fall to the ground. Thereupon Morant held him, shot him in the leg and beat him up.
On the first count Fearon had testified as to the circumstances in which he said the applicant had shot at him and evidence was adduced to show that some time after the applicant’s arrest a spent bullet was recovered from the vicinity where Fearon said he was shot at by the applicant and that this bullet was discharged from the revolver which it is alleged was taken from the hand of the applicant on 26 September 1970.
In the course of his summing-up the trial judge told the jury:
‘Remember Mr Cunningham [counsel for the defence] yesterday in his address to you reminded you, and quite rightly, that there are three separate offences, and he used language ‘they are grouped together for convenience’. And the point that he made which is quite right and part of my directions, is that each count will have to be examined separately. You are not to say if you come to the conclusion that he did not shoot at Ronald Fearon, therefore he shot at Morant. You have to treat each count on its own because there is evidence brought by the prosecution purporting to support each count; but the facts are for you. You are to say if you are satisfied to the extent that you feel sure from the evidence by the prosecution that the charge has been made out.’
The jury indicated that they wished to retire to consider their verdict and were out for 52 minutes. They returned unanimous verdicts of not guilty on counts 1 and 2 (which charged the shootings with intent to do grievous bodily harm) and of guilty on count 3 (which charged the illegal possession of a firearm). Thereupon the trial judge said:
‘I am not going to accept this. It is an inconsistent verdict. Now will you go back - go back and consider this case. I don’t want any compromise in this case. The second count charged the accused man that on the 26th day of November 1970, he shot at Lloyd Morant with intent to do him grievous bodily harm and the evidence is that on that very day Lloyd Morant found him with the gun, fired a shot on him, took the gun from him, which is an inconsistent verdict to talk about he is not guilty of that and the other one, now will you go back please and consider your verdict, stand strong and tell me what the position is. As far as the first count is concerned I will not quarrel on that. I am prepared to accept that, but as far as the second and third counts are concerned, it seems to be a compromise. Now, will you go back and consider the case.’
The jury retired again for a period of 36 minutes and this time returned majority verdicts in respect of all three counts. On the first count instead of the unanimous verdict of not guilty, the verdict was the same but now by a majority of six to one. On the second count instead of the original unanimous verdict of not guilty it was now a verdict of guilty by a majority of six to one. On the third count instead of the original unanimous verdict of guilty, the verdict was the same but now by a majority of six to one.
Counsel for the prisoner complained to the trial judge that the terms in which he had directed the jury when refusing to accept the original verdicts amounted to a mandate to the jury to change their verdicts to which the trial judge replied that his directions were prefaced “It is an inconsistent verdict, go back and reconsider the case”. Thereupon counsel for the prisoner said, “M’Lud, I accept without doubt at all that the verdict was inconsistent”, and reiterated this when the judge enquired “You accept that it was inconsistent?”
The applicant was sentenced to imprisonment for ten years at hard labour on the second count and to imprisonment for five years at hard labour on the third count.
On the following day, 17 March 1971, the applicant escaped from custody. On 29 March 1971, counsel who appeared for the applicant at the trial filed what purported to be a notice of appeal against conviction and sentence. This notice was not and could not be signed by the applicant because he had escaped from custody before the notice could be prepared. Instead counsel signed the notice on his behalf and indicated thereon that he had been instructed by the applicant immediately after conviction to lodge an appeal.
The grounds stated in that notice were as follows:
‘(1) The Learned Trial Judge erred in law in rejecting the original verdicts of the jury which were not guilty Count 1 not guilty Count 2 guilty Count 3:
The learned trial judge erred in ruling that the original verdicts were inconsistent and therefore were not acceptable thereby cohered the jury of jury on ambigous verdict [sic].
(2) The sentence of 15 years are excessive having regard the appellant’s age and hitherto good character.’
The notice was not a valid notice for it was not signed by the applicant as required by r 45 (1) of the Court of Appeal Rules 1962, and so a single judge ruled on 19 August 1971. And so the matter rested until the month of October 1971. On 28 September 1971, the applicant was recaptured and was lodged in the General Penitentiary on 7 October 1971. On 20 October 1971, the applicant signed a notice of application for extension of time within which to appeal and gave the following as his grounds in support thereof:
‘I paid the policeman to let me go on the 17th March 1971, from the custody of the police at Montego Bay. In so doing I was unable to prosecute my appeal within the prescribed time allotted.’
He also filed an application for leave to appeal against “conviction and sentence” specifying as his grounds:
‘(1) Conviction and Sentence.
(2) Verdict and Conviction were unreasonable with regard to the evidence presented by the Crown’.
Both of these applications were referred by a single judge for the consideration of the court.
The matter was called for consideration by the court on 14 December 1971. The court desired to have the assistance of counsel and directed that legal aid be granted the applicant in respect of both applications. Mr H Hamilton was duty assigned as attorney-at-law for the applicant and on 17 February 1972, he caused the following grounds to be filed in support of the applications:
‘1. The applicant was severely prejudiced in having both counts 1 and 2 of the indictments tried together.
2. The learned trial judge erred in refusing to accept the original verdicts of not guilty returned by the jury.’
At the hearing before us on 15 March 1972, Mr Hamilton abandoned the first of these grounds and argued the second ground. That this ground is an arguable one can hardly be denied. The question to be determined is - should this court in the particular circumstances of this case exercise its discretion in extending the time within which the applicant might appeal against conviction and sentence in relation to the offence charged in the second count of the indictment?
Mr Hamilton for the applicant submitted that the application should be granted:
(a) because the case raises a point of fundamental legal importance in that the right of a judge to interfere with the verdict of a jury is one which must be exercised very carefully and only in very extreme circumstances and the right of a jury to return their verdict is one which must never be whittled away; and
(b) because the fact that gave rise to the necessity of an application for extension of time within which to appeal was a direct consequence of the non-acceptance of the jury’s verdict by the court.
Dealing first with the second reason advanced by Mr Hamilton it will be observed that the applicant does not himself offer this as a reason for escaping from custody. Indeed he does not seek to challenge the validity of the conviction or sentence on count 3 in respect of which he was ordered to be imprisoned for five years. He merely stated in his application that he was unable to prosecute his appeal within the prescribed time because he escaped from custody after paying a policeman to let him do so.
As to the second reason advanced by Mr Hamilton the judge refused to accept the final verdict returned (except in the case of count 1) on the ground that verdicts of not guilty on count 2 and guilty on count 3 were inconsistent with the evidence adduced in the case. A judge is at liberty to decline to accept a first verdict on such a ground. I cannot see that any point of fundamental legal importance arises in this regard. Of course a judge may be shown to be wrong in his conclusion that the verdicts are inconsistent having regard to the evidence when the evidence is scrutinised. Whether he is right or wrong depends upon the evidence, not upon a breach of any fundamental legal principle. In this case the learned trial judge’s reference to compromise on the part of the jury in respect of their verdicts seems to have been borne out by the verdicts subsequently returned in that what were originally unanimous verdicts of not guilty and guilty respectively in relation to counts 1 and 3 became majority verdicts of not guilty and guilty in respect of those same counts. It seems to me that this change can only be explained on the ground that the original verdicts reached were by way of a compromise for the sake of unanimity. Again, verdicts of not guilty on the counts which each charged a shooting at with intent might fairly lead to an inference that, compromise apart, the jury did not accept the evidence of “shooting at” the virtual complainant in each case - rather than an inference that in the case of count 2 they may have concluded that the applicant shot at constable Morant with intent to resist lawful apprehension and not with an intention to do him grievous bodily harm at a range of but three-quarter chain. No similar inference as to intent could have been made in respect of count 1 for there the virtual complainant Fearon was not a peace officer. In such a case and in the state of the evidence adduced in relation to counts 2 and 3 (the defence was a denial that the applicant had a revolver and that he was shot down while speaking with a friend) it is difficult to see how a verdict of guilty on count 3 could be reconciled with a verdict of not guilty on count 2. It would have been a difficult task to sustain a verdict of guilty on count 3 if the original verdicts had been accepted. However, I do not think that it is necessary for the purposes of these applications to give any concluded view on these matters. Suffice it to say that the point is arguable either way.
In this case as counsel who appeared for the applicant at the trial indicated in the notice of appeal which bears his signature the applicant immediately after the conclusion of the trial instructed him to appeal against conviction and sentence. The applicant, therefore, set in motion the machinery for appealing. The next
step was that he bribed a policeman to enable his escape from lawful custody and made good his escape. Several months later he was recaptured and then sought to invoke the aid of the court to enable him to do what he had earlier deliberately and unlawfully prevented himself from doing. Should this court in the light of all these matters grant the applications? I am unable to agree that in the circumstances of this case we should exercise our discretion in favour of the applicant and grant him an extension of time within which to appeal.
I would refuse the applications.
FOX JA. The applicant was convicted in the Saint James Circuit Court on 16 March 1971 before Parnell J, and a jury on three counts of an indictment charging him with shooting with intent on two separate occasions and with illegal possession of a firearm. Immediately after his conviction, the applicant instructed Mr Cunningham of counsel who had represented him at the trial to appeal. On 29 March 1971, counsel filed a notice of application for leave to appeal against conviction and sentence which notice he himself had signed. The notice did not comply with rule 45 (1) of the Court of Appeal Rules, 1962, in that, as required by the rule, it was not “signed by the applicant himself.” Counsel explained the irregularity by stating in the notice that the applicant had instructed him to appeal immediately after conviction, but that he had escaped from custody before he signed the notice of appeal and his address was not known. This notice had been filed “within fourteen days of the date of conviction”, and in this respect it complied with the provisions of section 15 (1) of the Judicature (Appellate Jurisdiction) Law, 1962. But, of course, as indicated above, it did not comply with the further provisions of the sub-section requiring the convicted person to “give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by the rules of court”. The notice signed by counsel was therefore invalid. When it came before a single judge in Chambers in accordance with the usual procedure, he so ruled. The ruling is correct and has not been challenged.
The applicant was recaptured on 28 September and was lodged in the General Penitentiary on 7 October 1971. On 20 October he signed an application for leave to appeal against conviction and sentence and a notice of application for extension of time within which to appeal. These notices were filed in the registry of this court on 21 October 1971. They came before the same judge who had ruled the former notice invalid. He referred them to this court for consideration.
Under the provisions of section 15 (3) of the Judicature (Appellate Jurisdiction) Law, 1962 “the time within which notice of appeal or notice of an application for leave to appeal may be given, may be extended at any time by the court”. This power is discretionary and must be judicially exercised. It is not fettered within precise confines by principle, but its exercise is not a matter of mere whim, and must be in accordance with the procedure laid down in the Court of Appeal Rules, 1962. Rule 43 provides:
‘A person desiring to appeal to the Court against conviction or sentence shall commence his appeal by submitting to the Registrar a notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given, as the case may be, in the form of such notices set forth in Forms 1 or 2 in Appendix C, and in the notice or notices so sent, shall answer the questions and comply with the requirements set forth thereon, subject to the provisions of rule 11...’
Form 2 is the one to be used when the notice is of an application for extension of time within which to appeal. At three places on this form, the applicant is required to state specific details in accordance with directions at the margin thereof. In the third place he is required to state the grounds of his application for an extension of time. The marginal direction is to this effect:
‘(3) Here set out clearly and concisely the reasons for the delay in giving such notice, and the grounds on which you submit the court should extend the time’.
The application for extension of time in this case was made on the correct Form 2.
The applicant stated the grounds of his application thus:
‘I paid the policeman to let me go on the 17th March 1971 from the custody of the police at Montego Bay. In so doing I was unable to prosecute my appeal within the prescribe time allotted.’
This is a manifestly inadequate ground for invoking the discretion of the court. The discretion is wide and unfettered, but at the same time, it is subject to the guidance of those considerations of common sense and justice which are detectable in every situation. Where failure to give notice of appeal in time is the result of the wilful act of the applicant himself an extremely strong consideration of common sense exists for withholding the discretion. The validity of the approach is recognized in the first part of rule 11 which provides:
‘(11) Non-compliance on the part of the appellant in any criminal cause or matter with these Rules or with any rule of practice for the time being in force shall not prevent the further prosecution of his appeal if the Court considers that such non-compliance was not wilful and that it is in the interests of justice that non-compliance be waived ...’
In this matter, the failure to appeal in time was the direct result of the wilful act of the applicant in escaping from custody at a time when he knew that the final word upon the justice of his case had not been spoken by the law. He had given instructions to invoke that final word but was not prepared to await its utterance. He was unwilling to rely upon the procedures prescribed by law. Instead he sought to ensure his liberty by action entirely outside the law. As a consequence, an essential step required by the law for the perfecting of his appeal was frustrated. It would require the most weighty considerations of justice to overbalance those considerations against the exercise of the discretion which arise out of the deliberate act of escaping from the custody of the police.
Mr Hamilton contended that such weighty considerations were discernible in the circumstances under which the judge refused to accept the verdicts which were at first returned by the jury. These circumstances have been fully and accurately stated, and exhaustively discussed in the judgment of Luckhoo P (Ag). They need not be repeated. The complaint falls within the category of misdirection of the jury by the judge. By way of the use of appropriate words, the judge could have properly invited the jury to embark upon a further and deeper analysis of the evidence. If this had been done and the jury had thereafter returned the verdicts which were in fact finally returned, it is highly debatable whether they would be open to objection. Mr Hamilton was prepared to concede that following upon such appropriate directions, they would not be so open. In any assessment of the weight of the consideration which is based upon the complaint on appeal, it is therefore important to appreciate that although the point might be decided in favour of the appellant, the court might also be in a position to consider that the appeal should be dismissed on the basis that no substantial miscarriage of justice had actually occurred.
But let it be assumed that as a result of these further directions by the judge, an arguable point of substantial merit has accrued in favour of the applicant. This is a valid consideration favouring the exercise of the discretion. In Evans v Bartlam ( 2 All ER 646,  AC 473, 106 LJKB 568, 53 TLR 689, 81 Sol Jo 549, sub nom Bartlam v Evans, 157 LT 311,) - a civil case concerned with the exercise of the court’s discretion to set aside a judgment obtained by default-Lord Wright said ( AC at p 489):
‘The primary consideration is whether (the applicant) has merits to which the court should pay heed; if merits are shown the court will not prima facie desire to let a judgment pass on which there has been no proper adjudication.’
In a criminal case, where the liberty of the citizen is imperilled, the probability of an erroneous adjudication takes on added significance and weight. Giving such significance and weight to the point of merit which has been assumed above, it nevertheless remains my view that a favourable exercise of the court’s discretion should not be extended to the applicant. In arriving at this conclusion, I have thought it of the first importance to appreciate that the applicant does not have any right of appeal except as provided by law. (See s 12 of the Judicature (Appellate Jurisdiction) Law, 1962.) The further provisions of that law and of the rules made thereunder which regulate this statutory right of appeal must be strictly followed. Where non-compliance with these provisions is the result of an act of an applicant which is not only wilful, but also is as reprehensible as in the instant case, and, in addition, is a crime, a point of merit such as that assumed above, is completely outweighed, and altogether incapable of exciting a favourable exercise of the discretion of the court.
For these reasons, I agreed that the application for extension of time within which to appeal should be refused, and that the application for leave to appeal should be dismissed.
GRAHAM-PERKINS JA. On 16 March 1971, the applicant was found guilty on the second and third counts of an indictment which respectively charged him with shooting with intent and the illegal possession of a firearm. He was found not guilty on the first count which, like the second, charged the offence of shooting with intent. He now applies to this court for leave to appeal out of time and for leave to appeal. It is necessary to set out in some detail the history of events culminating in the present applications.
The applicant’s trial took place before Parnell J, and a jury at the St James Circuit Court held at Montego Bay. He was represented by Mr H Cunningham of counsel. At the conclusion of his summing-up the trial judge invited the jury to retire in order to consider their verdict. They did so and returned to court in just under one hour. Having regard to the fact that the evidence in the case was concluded in a day the jury’s retirement for nearly an hour would tend to suggest that they approached their deliberations with some measure of careful reflection. The judge had told them:
‘Remember Mr Cunningham yesterday in his address to you reminded you, and quiet rightly, that there are three separate offences... grouped together for convenience. And the point that he made which is quite right and part of my directions, is that each count will have to be examined separately. You are not to say if you come to the conclusion that he did shoot at Ronald Fearon, therefore he shot at Morant. You have to treat each count on its own because there is evidence brought by the prosecution purporting to support each count; but the facts are for you. You are to say if you are satisfied to the extent that you feel sure from the evidence by the prosecution that the charge has been made out.’
The word “charge” in the last line of the above quoted passage was very probably intended to be “charges”. On their return to court the jury, through their foreman, announced that they were unanimously agreed that the applicant was not guilty on the first and second counts but that he was guilty on the third count. The record discloses that thereafter the following exchanges took place:
‘His Lordship: You say you find him guilty on the third count of having a firearm in his possession?
Mr Foreman: It was unanimous, my Lord.
His Lordship: Yes, but you say that he is not guilty on the second count which charges him that on that day he fired the shot - you find him not guilty on that?
Mr Foreman: Yes, my Lord.
His Lordship: I am not going to accept this. It is an inconsistent verdict. Now, will you go back - go back and consider this case. I don’t want any compromise in this case. The second count charged the accused man that on the 26th day of November 1970, he shot at Lloyd Morant with intent to do him grievous bodily harm, and the evidence is that on that very day Lloyd Morant found him with the gun, fired a shot on him, took the gun from him, which is an inconsistent verdict to talk about he is not guilty on that and the other one, now will you go back please and consider your verdict, stand strong and tell me what the position is. As far as the first count is concerned I will not quarrel on that. I am prepared to accept that, but as far as the second and third counts are concerned, it seems to be a compromise. Now, will you go back and consider the case.
Defence Counsel (Mr Cunningham): Do you wish to hear me on this case?
His Lordship: No, I don’t wish to hear you. [To jurors] Please go back.’
In compliance with these very positive directions the jury retired a second time. They returned after some 36 minutes and announced, through their foreman, that they were now divided six to one in respect of each of the three counts. On the first count their majority verdict was “not guilty”. On the second and third counts their verdict was “guilty”. There was, therefore, an almost complete volte face in respect of the second count. That the trial judge should have regarded as inconsistent the original verdict on the second and third counts defies comprehension.
The evidence led by the prosecution in relation to these counts revealed the following broad picture as indicated by the summing-up. Detectives Morant and McGibbon were on mobile patrol on St James Street when they saw the applicant, whom they had known before, at the intersection of St James Street and South Street. McGibbon, the driver, stopped the vehicle and they both got out. The applicant “looked in their direction and started to run” pursued by Morant along South Street and Strand Street. On Strand Street the applicant, according to Morant, “suddenly turned around and pulled a revolver from his waist”. Some three-quarters of a chain separated the two men at that point. The applicant “fired at” Morant who ducked and fired a shot which hit the applicant causing him to fall. McGibbon, who had given chase in another direction, and Morant approached the applicant and took from him a 38 revolver. In his defence the applicant denied that he had shot at Morant and that he had a gun. Morant it was who had shot him without the least justification, the applicant stated.
To establish the charge laid in the second count the prosecution was required to satisfy the jury that the applicant shot at Morant, and that when he did so there was present in his mind an intention to cause grievous bodily harm. The jury had seen and heard Morant and McGibbon give their evidence. They would have formed particular impressions of these witnesses. They had also seen and heard the applicant of whom they would also have formed a particular impression. They had been given precise directions as to the manner in which they should approach the question of proof of a man’s intention. They had been told that they were required to examine each count separately and that a verdict adverse to the applicant in respect of one count did not necessarily involve an adverse verdict on another count. They had been told that in respect of each count they could return a verdict of guilty only if they were satisfied so that they felt sure that the prosecution had established all the material ingredients constituting the offence charged. Pursuant to these directions they returned a verdict of “not
guilty” on the second count and a verdict of “guilty” on the third, and this, notwithstanding that the trial judge, dealing somewhat summarily with the applicant’s defence said:
‘So what he is saying now bears out the suggestion of learned counsel that it took place in the market, and the shot in the market, and apparently, this shooting being illegal, not justified, the story is to cook to cover it up. Well, if that is so where this revolver come from? Where the police get it? The police must have got hold of this revolver at some time. Where he got it from, and how is it that that very revolver, if the police had it at some time, is supposed to have fired a shot - a bullet, lodging near to some boarding-up at Church Street? Who fired that shot? How comes? Well, in all these things, when jurors are called to try a case, ... they are required to use their good sense, because that is the very reason why they are selected to try a case, and to reflect the commonsense of the community.’
Let it be supposed that the jury, although concluding, as they must have done, that the applicant did have a revolver in his possession, and further, that the applicant had fired a shot at or “in the direction of” Morant (the words quoted are taken from the last paragraph of the summing-up), would they not have been completely justified in finding a verdict in favour of the applicant if they felt unable to resolve the question of his intention adversely to him? The jury may well have thought: “We have not the least doubt that he fired this shot as the detectives swear, but we have a real doubt whether he intended to inflict grievous bodily harm. He may have intended to scare the man pursuing him so that he could make good his escape. He may have fired ‘in the direction of Morant’ but not at him”. On this eminently reasonable hypothesis a verdict in favour of the applicant was inevitable. This would have involved no reflection on the veracity of the two constables. Wherein, therefore, the supposed inconsistency? I repudiate as totally invalid the suggestion apparent in the exchanges quoted above that because the jury returned a verdict of guilty in respect of the third count a verdict of guilty, on the totality of the evidence, necessarily had to follow in respect of the second count. The original verdict was, ex facie, perfectly intelligible and legitimate. It would, in my view, be a highly dangerous exercise for a trial judge to reject a jury’s verdict whenever he took the view that it should have gone the other way because of some imagined inconsistency.
“Trial by jury”, said Blackstone, “ever has been, and I trust ever will be, looked upon as the glory of English law... The liberties of England cannot but subsist so long as this palladium remains sacred and inviolate ...” (Blackstone’s Commentaries, iii 379, iv 350). England is, without doubt, the foster-mother of the jury. It has been copied or inherited by other countries, including Jamaica. Applied to this country Blackstone’s words may very profitably be re-echoed today. Their validity has in no sense been impugned by the passage of time since he wrote. If a judge is to be permitted to dictate that a particular verdict must be returned by a jury because his personal views of the evidence are in conflict with those of the jury the result must clearly be to destroy trial by jury in fact even if not in name. Such a step would, in my view, entail the most disastrous consequences, not the least of which would be the undermining of public confidence in the jury.
A trial judge undoubtedly has, and must have, the right to direct a jury to re-consider their verdict in certain well-defined circumstances. Both on authority and on principle it is clear at the present time, I think, that this may only be done where the verdict is patently inconsistent or ambiguous. See, for example, R v Crisp (, 76 JP 304, 28 TLR 296, 7 Cr App Rep 173), R v Larkin ( 1 All ER 217,  KB 174, 112 LJKB 163, 168 LT 298, 59 TLR 105, 87 Sol Jo 140, 29 Cr App Rep 18), R v White ( Cr LR 59). As I have attempted to show the verdict on the second count was neither ambiguous nor inconsistent. That the
trial judge thought it to be inconsistent is nothing to the point. We have come a very long way since R v Meany ((1862), Le & Ca 213, 1 New Rep 66, 32 LJMC 24, 7 LT 393, 26 JP 822, 8 Jur NS 1161, 11 WR 41, 9 Cox CC 231). The report of that case quotes Pollock CB, as saying: “He [the judge] may send them back any number of times to reconsider their finding. The judge is not bound to record the first verdict unless the jury insist on it being recorded”. Unhappily, Pollock CB, gave no indication how the jury would know of their right to insist on their verdict being recorded unless they were so advised by the trial judge in very clear terms. In any event it is perfectly clear that the first verdict returned in R v Meany ((1862), Le & Ca 213, 1 New Rep 66, 32 LJMC 24, 7 LT 393, 26 JP 822, 8 Jur NS 1161, 11 WR 41, 9 Cox CC 231) was demonstrably ambiguous. In one sense it amounted neither to a verdict of guilty nor to one of not guilty. The trial judge was, in the circumstances, perfectly entitled to demand, as he did, that the jury return a verdict of guilty or not guilty. If the learned Chief Baron meant that a judge could send a jury back “any number of times to reconsider their findings” in a case in which their verdict was neither inconsistent nor ambiguous he clearly was not, and is not, supported by authority. The only case on which Pollock CB, appears to have relied as supporting his view was the case of the “Hammersmith Ghost”, a case in which one Francis Smith was tried for the murder of Thomas Milward, of Hammersmith, at the Old Bailey in January 1804. The jury returned a verdict of manslaughter but Macdonald LCB, refused to accept it on the ground that the verdict had to be either guilty of murder or one of complete acquittal. He went on to direct the jury that if they believed the facts tendered in evidence they could not in view of the law applicable to those facts acquit the prisoner. This case certainly lends not the least support to the proposition advanced by Pollock CB, in R v Meany ((1862), Le & Ca 213, 1 New Rep 66, 32 LJMC 24, 7 LT 393, 26 JP 822, 8 Jur NS 1161, 11 WR 41, 9 Cox CC 231).
This brings me to a consideration of the proper approach to be followed by this court in dealing with the important question whether leave should be granted to the applicant to appeal out of time. Immediately following upon his conviction and sentence the applicant advised his counsel of his intention to appeal and instructed him to “appeal”. It is not known what, if anything, Mr Cunningham told the applicant with regard to the steps required to be taken to enable the applicant to prosecute his appeal. On 29 March 1971, Mr Cunningham, purporting to act on behalf of the applicant, submitted to the registrar of this Court a notice of application for leave to appeal. This application was dated 28 March 1971 and signed by Mr Cunningham. This notice was quite clearly not a valid notice since it offended against the provisions of r 45 (1) of the Court of Appeal Rules 1962, the relevant part of which reads: “Every ... notice of application for leave to appeal ... shall be singed by the appellant himself ...”.
This notice was signed by Mr Cunningham because the applicant had been allowed to escape from custody some time on or shortly after 17 March 1971. In his notice of application for an extension of time within which to appeal, dated 18 October 1971, and filed on the 21st of the same month, the applicant states, as his reason for the delay in submitting an application for leave to appeal, that “I paid the policeman to let me go on the 17th March 1971 from the custody of the police at Montego Bay. In so doing I was unable to prosecute my appeal within the prescribed time allotted”. If it be the fact that the applicant paid some policeman to enable him to escape from custody he would have committed a very grave wrong and would have exposed himself to the consequences of the criminal law. In my view, this would be the concern of the Director of Public Prosecutions. If, after a thorough investigation into the applicant’s allegation, it is thought desirable to institute proceedings against him (and anyone else) he would, no doubt, be dealt with appropriately if found guilty. The immediate concern of this court, however, is whether the fact of the applicant’s escape with the consequence that he deprived himself by his own act of the opportunity to submit a valid application for leave to appeal within the
time prescribed by s 15 (1) of the Judicature (Appellate Jurisdiction) Law 1962, should be held to be decisive of the question whether he should be allowed an extension of time within which to seek leave to appeal. I think not Section 15 (3) provides:
‘Except in the case of a conviction involving sentence of death, the time within which notice of appeal or notice of application for leave to appeal may be given, may be extended at any time by the Court.’
This section vests in this court a discretion which is in terms absolute. It prescribes no fetters, nor does it seek to offer any guidance as to the matters to be considered in the exercise of that discretion. It is clear, I think, that in causes involving the liberty of the subject the legislature must have contemplated that the judges of this court should be the sole arbiters in determining the manner of the exercise of its discretionary power to extend time. It is perhaps trite to observe that that discretion must, nevertheless, be exercised judicially. As far as I am aware this court has, since its inception, dealt with each application for extension of time on the basis of its own particular circumstances. It has not as yet sought to lay down any fixed practice as to the exercise of its discretion. It would no doubt be quite undesirable, if not impossible, to do so. This court has, until now, apparently been content to be guided by the practice of the English Court of Appeal.
On behalf of the applicant Mr Hamilton argued, in effect, that the fact of the applicant’s escape should not be held against him in the particular circumstances of this case. The applicant had heard a jury return a verdict in his favour. He had heard the trial judge refuse to accept that verdict and direct the jury to reconsider the matter in terms which clearly suggested that their verdict (on the second count) should be one adverse to him. This was contrary to his preconceived notions of what he was entitled to expect from a court of justice. On this background the applicant must have been moved to abject and bitter frustration and disappointment, and more particularly so when that verdict of “not guilty” had very dramatically been changed into a verdict of “guilty” followed by a sentence of ten years. This, the applicant thought, was not fair play, and his one idea was to flee the system that he thought had abandoned him. So to think is perhaps to be very human. It may be that the simple answer to these arguments is that having given instructions to his counsel to set the machinery in motion whereby he felt he could right the injustice he thought had been meted out to him, the applicant should have awaited the result of his appeal. It is, however, clear, I think, that this court must seek to balance competing considerations. The applicant’s behaviour and the motives which may have dictated it are matters which may be dealt with elsewhere. For my part I do not attempt to condone the fact of the applicant’s escape from custody. But I am of the firm view that the applicant has a perfectly valid ground of appeal in respect of his conviction on the second count which he has framed as follows:
‘The learned trial judge erred in refusing to accept the original verdict of not guilty returned by the jury.’
To refuse the applicant an extension of time within which to seek leave to appeal would, in my view, be a clear denial of his right to have a demonstrably serious wrong committed by the trial judge put right. Such refusal would necessarily involve an approach predicated on the following kind of reasoning. “This court recognises that your conviction on the second count and the sentence thereon were manifestly wrong. But because you escaped, or were allowed to escape (whatever be the fact) this court will close its eyes to the wrong committed against you because you yourself committed a wrong”. Any such reasoning would manifestly involve the most unjust consequences. It would, also, I
think, involve punishing the applicant for an offence (his escape) committed by him when such punishment is more properly within the province of some other tribunal capable of a far more thorough investigation of all the relevant circumstances than is open to this court.
In R v Jones ( 2 All ER 731,  2 QB 456,  2 WLR 1485, 55 Cr App Rep 321) an accused absconded during his trial and the question arose whether his legal representatives were properly seized with instructions to prosecute an appeal on his behalf. The Court of Appeal held that they were not. The court went on to express the view that the accused could, if and when he surrendered, approach the court for leave to appeal out of time though any such application would be the subject of vigorous scrutiny. The court did not in any way indicate that the fact of the accused’s escape might be a bar to the exercise of its discretion. In R v Marsh ((1935), 25 Cr App Rep 49) Avory J said (25 Cr App Rep at p 52):
‘In these circumstances, it being the rule and practice of this Court not to grant any considerable extension of time unless we are satisfied upon the application that there are such merits that the appeal would probably succeed, we are quite unable to say in this case that there was no evidence upon which these applicants could properly be convicted...’
In R v Jennion ( 1 All ER 689,  1 WLR 317, 46 Cr App Rep 212), the applicant was convicted on 3 December 1958, of non-capital murder and sentenced to imprisonment for life. Three years after her conviction she applied for an extension of time for leave to appeal. In her application for extension of time she said that she had been suffering from mental apathy since before her conviction, that she was then in no state to put up any defence, and that she had only lately realized the significance of her sentence. Delivering the judgment of the court, Edmund Davies J said ((1962), 46 Cr App Rep at p 214):
‘This court also considered it necessary to investigate the suggestion which had been made in a certain quarter (though not by the applicant) that the overwhelming and unchallenged medical evidence called showed clearly that the applicant was suffering at the time of the crime from abnormality of mind and that her mental responsibility was thereby substantially impaired. Were this the case, this court might conceivably have granted an extension of time, notwithstanding the lapse of three years since the trial...’
In R v Williams ( 3 All ER 639,  1 WLR 1268, 46 Cr App Rep 463) the appellant had pleaded guilty to certain offences and had asked that a number of other offences be taken into consideration, including offences of taking and driving away cars without the owners’ consent. He was sentence to two years’ imprisonment and ordered to be disqualified from driving for five years. More than two years after his conviction and sentence (and after he had served the sentence of imprisonment) the court extended the time for appealing “in order that a point of law could be considered...” namely, whether there was any power to disqualify in the circumstances of the case.
In R v Cottrell ((1956), 40 Cr App Rep 46), a similar approach was adopted, the court granting an extension of time within which to appeal notwithstanding a long lapse of time due to a misapprehension on the part of the trial court.
If any principle is to be extracted from the judgments in these and several other cases to the like effect it certainly must be that the probable success of an appeal is a consideration of the first importance in determining the exercise of the court’s discretion. My researches have failed to reveal a single case where this court or the English Court of appeal has refused an application for extension of time within which to seek leave to appeal, or to appeal, where it is satisfied as to the merits and probable success of the appeal. Such cases as R v Lesser ((1939), 27 Cr App Rep 69), and R v Cullum ((1942), 28 Cr App Rep 150), on which great reliance was placed by the learned attorney for the crown, do not, in my view, afford the least assistance
in resolving the present applications. Those cases do no more than to assert that “an extension of time within which to appeal will not be granted unless some special reason is shown why the rules governing the procedure of the court should be relaxed”‘. See the headnote to R v Cullum ((1942), 28 Cr App Rep 150). I should have thought that no authority was needed for a proposition so self-evident. Neither in R v Cullum ((1942), 28 Cr App Rep 150), nor in R v Lesser ((1939), 27 Cr App Rep 69) and R v Marsh ((1935), 25 Cr App Rep 49) was any reason advanced which could possibly have justified the court in exercising its discretion in favour of the applicant. It is significant and worthy of note that in none of the cases to which I have referred and in which the court either granted an extension of time or indicated its willingness so to do if the justice of the case so demanded, did the applicant himself advance any reason for his delay in appealing. What was advanced was the obvious justice, merit and probable success of the appeal. In each case the court reacted to “the demands of the justice of the case.” This court clearly should do no less.
In the circumstances of this case I would accede to the application for leave to appeal out of time. I would treat the hearing of the application for leave to appeal as the hearing of the appeal. I would allow the appeal against conviction on the second count and set aside the conviction and sentence.
(1972) 19 WIR 86
Reid v Sylvester And The Attorney-General
COURT OF APPEAL OF JAMAICA
FOX, GRAHAM-PERKINS AND ROBINSON JJ A
1 MARCH, 14 APRIL 1972
False imprisonment – Arrest by constable without warrant for offence under statute – Statute authorising arrest but containing provisions prohibiting arrest in certain circumstances – Whether arrest lawful in any circumstances –Main Roads Law, Cap 231 [J], ss 25, 27.
Statute – Interpretation – Arrest by constable without warrant for offence under statute – Statute authorising arrest but containing provisions prohibiting arrest in certain circumstances – Whether constable acting under mistake of law – Whether constable entitled to rely on statutory provision requiring allegation and proof of malice of absence of reasonable and probable cause in action against constable – Constabulary Force Law, Cap 72 [J], ss 18, 36, 39.
The appellant, in an action against the respondents, claimed damages for false imprisonment arising out of his arrest by the first respondent in respect of an offence under s 25 (9) of the Main Roads Law, Cap 231 [J]. By s 27 (1) of that Law the first respondent was authorised to arrest without warrant any person guilty in his sight of any of a number of offences. By s 27 (3), however, it is provided:
‘No person shall be liable to be arrested under this section if, on demand, he shall give his name and address unless the constable or other person having power of arrest under this section has reason to believe and believes the name and address given to be false.’
In the view of the magistrate this subsection did not require the constable to demand the name and address of an offender as a condition precedent to his arrest. In the result he held that the appellant’s arrest was lawful and, accordingly, found in favour of the respondents. On appeal it was argued on behalf of the
appellant that the magistrate was wrong in so holding since on a true construction of s 27 (3) a pre-requisite of a constable’s authority to arrest was a demand made of an offender for his name and address followed either by the latter’s failure to comply there with or by the giving of a name and address which the constable reasonably believed to be false.
Held: (i) (per Fox and Robinson JJ A, Graham-Perkins JA, dissenting) that the words “on demand”, in s 27 (3), did no more than to invest a constable with a discretion to demand the appellant’s name and address, and since the constable had made no such demand of the appellant his authority to arrest the appellant remained unqualified.
(ii) (per Fox and Graham-Perkins JJ A) that the constable was entitled to rely on the provisions of s 39 of the Constabulary Force Law, Cap 72 [J] since, as the evidence disclosed, he was honestly, even if mistakenly, endeavouring to discharge his functions as a constable under the Main Roads Law. Murphy v Richards ((1960), 2 WIR 143), in which the former Court of Appeal held that a constable who acted under a mistaken notion as to his powers of arrest under a statute could not invoke the provisions of s 39 of Cap 72, was wrongly decided and should not be followed.
Cases referred to
Murphy v Richards (1960), 2 WIR 143
Dumbell v Roberts  1 All ER 326, 113 LJKB 185, 170 LT 227, 108 JP 139, 60 TLR 231, 42 LGR 111
Solomon v Adams (1912), 1 Stephens 935
Cooper v Cambridge (1931), Clark’s Reports 336
Griffith v Taylor (1876), 2 CPD 194, 46 LJQB 152, 36 LT 5, 41 JP 340, 25 WR 196
Morgan v Palmer (1824), 2 B & C 729, 4 Dow & Ry KB 283, 2 Dow & Ry MC 232, 2 LJOSKB 145
Chong v Miller (1933), JLR 80
Selmes v Judge (1871), 24 LT 904, (1871) LR 6 QB 724, 19 WR 1110, sub nom Judge v Selmes, 40 LJQB 287, 35 JP 645
Glinski v McIver  1 All ER 696,  AC 726,  2 WLR 832
Hermann v Seneschal (1862) 13 CBNS 392, 32 LJCP 43, 6 LT 646, 26 JP 598, 11 WR 184
Roberts v Orchard (1863), 2 H & C 769, 33 LJ Ex 65, 9 LT 727, 12 WR 253
Hardwick v Moss (1861), 7 H & N 136, 31 LJ Ex 205, 4 LT 802, 7 Jur NS 804
Wordsworth v Harley (1830), 1 B & Ad 391, 9 LJOSMC 50
O’Connor v Isaacs  1 All ER 513,  2 QB 288, 120 JP 169, 100 Sol Jo 171, affirmed  2 QB at p 328,  2 All ER 417, 120 JP 325, 100 Sol Jo 432
Phillips v Naylor (1859), 4 H & N 565, 28 LJ Ex 225, 5 Jur (NS) 996, 118 RR 615
Johnson v Emerson (1871), LR 6 Ex 329, 40 LJ Ex 201, 25 LT 337
McKane v Parnell (1956), 7 JLR 32
Appeal against the decision of the resident magistrate for the parish of St Ann dismissing a claim by the appellant for damages for false imprisonment.
D Scharschmidt (instructed by Crown Solicitor) for the appellant
Mrs Shirley Playfair for the respondents
FOX JA. This is an appeal from a decision of His Honour Mr I O Farquhrson, resident magistrate for Saint Ann, whereby he gave judgment for the defendants in an action claiming damages for false imprisonment and malicious prosecution. The defendant Sylvester is a special constable attached to the Ocho Rios branch of the Jamaica Constabulary Force. At about 8 am on 21 August 1969, he commenced patrol duty along the main road at Pineapple Place in Ocho Rios. In this area, there are shops on both sides of the road, and a shopping centre with many shops. Off the main road, there are also stalls in which pedlars may vend their wares. A large part of the persons who frequent Pineapple Place are tourists. They go there to shop. They come on foot or by taxicab. The road in that vicinity is narrow. On one side there is no sidewalk. The road on that side goes up to a wall. Amongst the duties assigned to constable Sylvester - perhaps his chief duty that day - was one which required him to ensure the free and safe flow of pedestrians and motorists along the road. In particular, he had been given instructions to keep the road clear of pedlars. Pedlars posed a particular problem. Some did their selling in the stalls. Others walked up and down or stood in the road and sold. These were the ones that gave the police trouble. The plaintiff was one such trouble some pedlar. At about 10 am on 21 August 1969, constable Sylvester saw him standing in the road and bargaining with tourists for the sale of hats which he held in his hands. The constable told him to get off the road with the hats “because it is going to cause accidents”. The constable explained that he so instructed the plaintiff “because tourists and other pedestrians not interested in hats has [sic] to step out in middle of road”. The plaintiff walked away, but when the constable continued his patrol and proceeded further up the road, the plaintiff returned to the same spot. At about 3 pm, as a result of the concerted efforts of the police including constable Sylvester, the roadway was cleared of all pedlars except the plaintiff. At that hour constable Sylvester saw the plaintiff standing in the road about three feet from the wall which is on one side, and at the same spot where he had been spoken to in the morning. In his hands were hats which he was offering for sale to tourists. The road was busy and there was a heavy flow of traffic. In his evidence the constable said, “I saw plaintiff stretch hand with hat to tourist. Plaintiff caused congestion in road. Time after time cars had to slow their brakes to avoid hitting down people who stepped out in road”. Constable Sylvester arrested the plaintiff. He told the plaintiff: “Lukie Reid, I arrest you for blocking the free passage of the main road and causing congestion of traffic”. The plaintiff refused to go into a police landrover. Through the joint efforts of an inspector and a sergeant of police and constable Sylvester his resistance was overcome. He was put into the vehicle and taken to the Ocho Rios police station. That same afternoon, the plaintiff was released on bail. On the following day constable Sylvester swore to two informations charging the plaintiff for that he
(a) did unlawfully and negligently interrupt the free passage of persons along the main road contrary to s 25 (9), Cap 231 [J] and
(b) unlawfully did hinder this complainant he being a member of the Jamaica Constabulary Force in the execution of his duty as such contrary to s 36, Cap 72 [J].
The plaintiff was tried in the Petty Sessions Court at Ocho on 3 February 1970, found not guilty on both informations, and discharged.
The foregoing is a condensation of the evidence of constable Sylvester of the events which occurred on 21 August 1969. The magistrate believed the constable.
This involved a rejection of the plaintiff’s allegations that when he was arrested, he was sitting on the wall talking to a friend, and that the hats which he was selling to tourists were resting on the ground on the side of the wall away from the street. In his reasons for judgment, the magistrate specified his findings of fact thus:
‘(1) That the plaintiff is a curio vendor in that he is a seller of straw hats.
(2) That the plaintiff sold his hats previously at Dunns River Falls but latterly sold them at Pineapple Place, Ocho Rios.
(3) That is appears that the first named defendant had spoken to the plaintiff on occasions about his selling his hats at Dunns river Falls and that is the reason why the plaintiff changed his venue to Pineapple Place for selling his hats.
(4) That the first defendant, a special constable was assigned for duty to keep the street free from pedlars and to prevent congestion in the street caused by curio vendors when selling their goods to tourists.
(5) That the first defendant was assigned to Dunns River Falls and Pineapple Place for the purposes of his duties.
(6) That I accept the first defendant’s version of what occurred on the 21st August 1969 at Pineapple Place in preference to the plaintiff’s.
(7) In particular I find that when the first defendant arrested the plaintiff he said to him ‘Lukie Reid I arrest you for blocking the free passage of the main road and causing congestion of traffic’. I do not accept the plaintiff’s evidence in this regard when he said this ‘I know why defendant Sylvester held me and put me in jeep. He put me in jeep because I made a complaint to the MP’ This appears to be a mere surmise on the part of the plaintiff. There is no evidence that anyone gave this as the reason. I make this comment despite the fact that it appears to be a fact that the plaintiff did make a complaint to Mr Wills Isaacs MP who accompanied him to Ocho Rios police station where a complaint was made to Corporal Holmes.’
The essential complaint on appeal is based on the contention that the arrest of the plaintiff was illegal in that it was not authorized by s 27 of the Main Roads Law, Cap 231 [J] which empowered a constable to take into custody without a warrant “any person who is guilty in their sight of any of the offences specified in s 25 of this Law”. This was so, submitted Mr Scharschmidt, as a consequence of the provisions of s 27 (3) which is in the following terms:
‘(3) No person shall be liable to be arrested under this section if, on demand, he shall give his name and address unless the constable or other person having power of arrest under this section has reason to believe and believes the name and address given to be false.’
As a condition precedent to the exercise of the constable’s powers of arrest under the section - so ran the argument - he must first demand of the offender, his name and address. It was only if the offender failed to give these particulars on demand, or if the constable had “reason to believe and believes the name and address given to be false” that the offender became liable to be arrested. This was not the situation here. Before he arrested him, Constable Sylvester had not asked the plaintiff for his name and address. The arrest was therefore unlawful. Constable Sylvester was in the same position as was detective Regards in Murphy v Richards ((1960), 2 WIR 143). Both had acted under a mistaken notion of the powers of arrest under the relevant law. Consequently, like detective Richards, the arrest effected by constable
Sylvester was not an “act done by him in the execution of his office”, so as to bring him within the protective provisions of s 39 of the Constabulary Force Law, Cap 72 [J]. This section provides:
‘39. Every action to be brought against any Constable for any act done by him in the execution of his office, shall be an action on the case as for a tort; and in the declaration it shall be expressly alleged that such act was done either maliciously or without reasonable or probable cause; and if at the trial of any such action the plaintiff shall fail to prove such allegation he shall be non-suited or a verdict shall be given for the defendant.’
Mr Scharschmidt completed his submissions by a reference to Dumbell v Roberts ( 1 All ER 326, 113 LJKB 185, 170 LT 227, 108 JP 139, 60 TLR 231, 42 LGR 111). In that case, the plaintiff was arrested by police constables and charged with being in unlawful possession of soap flakes contrary to the provisions of a local English Act. The constables had made no attempt to ascertain the plaintiff’s name and address. As a result of this omission they had failed to comply with a condition which was stipulated in the provisions of the act which gave them the right to arrest without a warrant. The Court of Appeal held that the arrest was unjustified and that as a result, the plaintiff was entitled to damages in his action against the constables for false imprisonment.
The magistrate did not agree with the contention upon which the complaint on appeal is based. He so construed the provisions of s 27 of the Main Roads Law [J] as to be able to hold that the provisions of sub-section 3 did not require the constable to demand the plaintiff’s name and address as a condition precedent to arresting him; but that if the constable was satisfied that there was a proper case to lay before the court, he was empowered by the section to arrest. In this way, the magistrate avoided the implications of the decision in Murphy v Richards ((1960), 2 WIR 143). When he arrested the plaintiff, the constable had not been mistaken in his belief as to his powers under the law. He was acting within his legal powers and therefore in the execution of his duty, and so entitled to the protection of s 39 of the Constabulary Force Law, Cap 72 [J]. The magistrate went on to hold not only that the plaintiff had failed to prove an absence of reasonable and probable cause for the arrest, but also the affirmative of that proposition, namely that the constable had reasonable and probable cause for the arrest. Finally, the magistrate held that the constable had not acted maliciously. He found for the defendants on both limbs of the action.
I have not found it easy to decide which of the two competing constructions placed upon the provisions of s 27 is the correct one. It could be extremely inconvenient if the police were powerless to arrest a persistent offender. This is the consideration which has led me to think that the approach in the judgment of Robinson JA (Ag), to a construction of the provisions of s 27 is correct. I have had the advantage of reading that judgment, and if I may say so with respect, am persuaded to conclude that, for the reasons stated therein, demand of an offender’s name an address is not a condition precedent to a constable’s powers of arrest under the section. I too, therefore, would be prepared to endorse the ground upon which the magistrate found that the arrest was lawful.
In my view further, however, even if the arrest was unlawful the magistrate’s decision is right for a more fundamental reason based upon my opinion that the decision in Murphy v Richards ((1960), 2 WIR 143) is wrong. It is a decision of the former Court of Appeal and as such is entitled to the greatest respect. But it is not binding on this court. If erroneous, it should not now be followed. The facts of that case are simple. Murphy was arrested by detective Richards for unlawful possession of a cow. At his trial, Murphy was discharged by the resident magistrate without being called upon to account for his possession when it emerged that detective Richards had not found him in possession of the animal at the time of arrest. He was not
a “suspected person” as defined by the Unlawful Possession of Property Law, Cap 401 [J] and his arrest was therefore unlawful. In dismissing the claim for assault and false imprisonment brought subsequently by Murphy against Richards, the magistrate held that the latter was entitled to the protection of s 39 of the Constabulary Force Law, Cap 72 [J]. The magistrate’s decision was reversed on appeal. The court held that in arresting Murphy, detective Richards had made a mistake of law as to his powers of arrest, as distinct from a misapprehension of the facts constituting the offence, and that such a mistake of law precluded the detective from claiming that the arrest was an “act done by him in the execution of his office.” In coming to this conclusion, the court declined to be guided by the opinion of Beard J, in Solomon v Adams ((1912), 1 Stephens 935) that:
‘... so long as the defendants were acting or purporting to act under colour of their office, they must be taken to have been acting in the execution of their office and entitled to the protection of the statute.’ ((1912) 1 Stephens at p 939.)
Regarding this passage, the court observed that:
‘... this decision is one of a single judge sitting in a court of first instance and this court is not bound thereby. In that case, which was one of mistaken identity, the constable made a mistake of fact and not of law.’ ((1960) 2 WIR at p 146.)
Further, the court dismissed as “merely obiter dicta” the opinion of Clarke J, in Cooper v Cambridge ((1931), Clark’s Reports 336) that:
‘... if a constable, in the intended execution of his office, makes an arrest which can in no way be justified in law then before he can be made liable in damages it must be proved not only that the arrest was illegal but also that he acted with an absence of reasonable cause or maliciously.’ ((1931) Clark’s Reports at p 341.)
The court took the view that “the true principle governing this question” was to be found in a passage in Maxwell On The Interpretation Of Statutes (10th edn), pp 233 and 234. This passage was incorporated in the judgment and is as follows:
‘It is obvious that the provisions in numerous statutes which limit the time and regulate the procedure for legal proceedings for compensation for acts done in the execution of his office by a justice or other person, or ‘under’ or ‘by virtue’ or ‘in pursuance’ of his authority, do not mean what the words, in their plain and unequivocal sense, convey, since an act done in accordance with law is not actionable, and therefore needs no special statutory protection. Such provisions are obviously intended to protect, in certain circumstances, acts which are not legal or justifiable, and the meaning given to them by a great number of decisions seems, in the result, to be that they give protection in all cases where the defendant did, or neglected, what is complained of, while honestly intending to act in accordance with his statutory powers and, whether reasonably or not, believing in the existence of such facts or state of things as would, if really existing, have justified his conduct.
Thus, if an Act authorised the arrest of a person who entered the dwelling-house of another at night with intent to commit a felony (Larceny Act 1861 (c 96)), an arrest made in the honest and not unreasonable, but mistaken belief that the person arrested had entered with that intent would be protected. Apparently, however, there would be no protection if the arrest were made under a misconception, not of the facts, but of the law, as, for instance, if the person making the arrest believed that the prisoner had only attempted to enter - a different offence, for which the enactment in question does not authorise arrest - or if, where the law justified an immediate apprehension, an arrest was made which was not immediate. As a general proposition, however, unreasonableness of belief is immaterial, if the belief be honest, though it is an important element in determining the question of honesty.’
The authorities given for the proposition which is italicised in the passage are Griffith v Taylor ((1876), 2 CPD 194, 46 LJQB 152, 36 LT 5, 41 JP 340, 25 WR 196) and Morgan v Palmer ((1824), 2 B & C 729, 4 Dow & Ry KB 283, 2 Dow & Ry MC 232, 2 LJOSKB 145). In the latter case, all the judges appeared to recognize the distinction between an act done colore officii, when notice of action as stipulated in the protective statute must be given, and an act in circumstances where it cannot be pretended that the thing was done in the execution of the defendant’s office, when no notice is required. This distinction foreshadows the true test for ascertaining whether a person is acting in the execution of his duty which later cases identify as the difference between “honestly intending” and “falsely pretending”.
In Griffith v Taylor ((1876), 2 CPD 194, 46 LJQB 152, 36 LT 5, 41 JP 340, 25 WR 196) Cockburn CJ, purported to lay down the principle in these terms (36 LT at p 6):
‘According to the latest authorities on the law as to giving notice of action for an act done in pursuance of this statute, it is laid down that to entitle the defendant to notice of action he must have acted under a bona fide belief in the existence of circumstances, which if they had really existed, would have afforded a justification for what he had done. The decision in cases of this kind turns on the two parts of the clause in sect 103 to which I have referred. The first part relates to the question whether the party arrested is found committing the offence for which he is arrested, as to that part of the section the question of bona fide belief is all essential. The second part relates to the immediateness of the arrest, and as to this the question turns, not on the mind of the person making the arrest, but on his act. When you come to act under a belief in the existence of such a state of facts as would if they existed justify an act done under the statute, there still remains the question whether the act was done in conformity with the statute. If the defendant were acting under a bona fide mistake of facts as to the persons arrested having been found committing the offence with which they were charged, he would, so far as that part of the section goes, be within the protection of the statute, but if he were acting under a mistake as to the meaning of the statute on the question whether the arrest was immediate or not, he would not be protected.’
In Murphy v Richards ((1960), 2 WIR 143) the Court of Appeal quoted this passage with approval, and continued ((1960), 2 WIR at p 148):
‘We do not think we can do better than adopt the principle as laid down by Cockburn CJ, to the effect that if in the instant case the respondent bona fide believed in a state of facts that were non-existent and in that honest belief made the arrest he is entitled to the protection of s 39 of the Constabulary Force Law [J], but if on the other hand he acted under a mistaken notion as to his powers under the Unlawful Possession of Property Law [J] he is disentitled to the protection of the section.’
The interesting point in the reasoning of the court of appeal which is immediately noticeable is that the substantial principle which the passage in Maxwell sought to illustrate was bypassed. That principle is succinctly expressed at the commencement of the passage in Maxwell which is quoted above, and as well, at p 229 (ibid) as follows:
‘Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence.’
Instead, the Court of Appeal was attracted by the qualification of the principle, and applied that qualification as the governing consideration in arriving at its conclusions. It is of interest to note that the passage in Maxwell which was quoted in Murphy v Richards ((1960), 2 WIR 143), though repeated in the eleventh edition, was excluded in the twelfth.
A second point of some significance to notice is that the qualification is stated in a sentence commencing with the word “apparently”. This would seem to import a measure of reserve as to the validity of the proposition. And well might the learned author of Maxwell have been cautious. For as support for the qualification, Morgan v Palmer ((1824), 2 B & C 729, 4 Dow & Ry KB 283, 2 Dow & Ry MC 232, 2 LJOSKB 145) is of uncertain authority, and when Griffith v Taylor ((1876), 2 CPD 194, 46 LJQB 152, 36 LT 5, 41 JP 340, 25 WR 196) is carefully examined it is clear that the dictum of Cockburn CJ, must be regarded as obiter. Nevertheless, nowhere in the judgment of the Court of Appeal is there any trace of hesitancy in applying the dictum of Cockburn CJ.
A third point to notice, and this with some surprise, is that although Cockburn CJ, purports to state a view “according to the latest authorities on the subject”, no reference is made in his judgment to any of these authorities. In particular, no authority was given for the “principle” which the Court of Appeal so willingly allowed to be the governing consideration in Murphy v Richards ((1960), 2 WIR 143). A fourth point, not only of interest, but of decisive importance, is the absence of any reference in Murphy v Richards ((1960), 2 WIR 143) to the judgment of the Full Court in Chong v Miller ((1933), JLR 80). In that case, the effect of the provisions of s 10 of the Gambling Amendment Law, 1926, Law 28 of 1926 [J] was considered. Section 10 reads:
‘10. No action for damages shall lie in any civil court for any act done by any person purporting to act under the provisions of this Law, unless such act be first proved to have been done with express malice.’
The relevant phrase in the section is “purporting to act”, but having regard to the principles outlined in the passages in Maxwell already referred to, the phrase describes no wider protection than the phrase “act done by him in the execution of his office”, in s 39 of the Constabulary Force Law [J]. In Chong v Miller ((1933), JLR 80), Clark J, puts the matter thus ((1933), JLR at p 86):
‘There are a considerable number of cases dealing with the extent of this phrase and of similar phrases used in enactments passed for the protection of persons carrying out public duties.
All the decisions agree that these phrases cannot be construed as meaning that the person to be protected must have been lawfully exercising his rights since, if his act were lawful, he could require no special statutory protection. All the decisions agree, therefore, that such enactments are intended to protect persons within their scope whose actions have not been lawful.’
The learned judge then posed the precise question which had arisen for decision in Murphy v Richards ((1960), 2 WIR 143). He said:
‘Is such protection nevertheless only to be afforded when the person has acted under an honest mistake as to facts, or is he also to be protected when he acts under an honest mistake as to the law?’
The relevant authorities were then examined. These included Griffith v Taylor ((1876), 2 CPD 194, 46 LJQB 152, 36 LT 5, 41 JP 340, 25 WR 196) and the earlier authority of Selmes v Judge ((1871), 24 LT 904, (1871) LR 6 QB 724, 19 WR 1110, sub nom Judge v Selmes, 40 LJQB 287, 35 JP 645). In the latter case it was held that surveyors of highways were not deprived of the protection of a statutory notice of action because they had been mistaken as to their legal duties. The ratio decidendi in Chong v Miller ((1933), JLR 80) was stated thus ((1933) JLR at pp 87, 88):
‘A person ‘purporting to act’ under the provisions of Law 28 of 1926, will therefore be entitled to the benefit of section 10 of that law if either he has acted under an honest belief in the existence of a state of facts which if it had existed would have made his act a lawful one or if he has acted under an honest misapprehension as to his authority under that law to do the act complained of. Where the defendant is a constable and claims to have acted under a bona fide mistake as to his legal powers of arrest this claim should naturally be subject to careful scrutiny before it is accepted. A constable, above all people, may be presumed to know the law as to his own powers of arrest and it can be only in unusual
circumstances that any Court would conclude that he was acting in good faith if he acted outside those powers. The question is however simply one of bona fides and must ultimately be a question of fact.’
I do not ignore the note of caution which was struck further on in the judgment in these words:
‘Our decision in this case must in no way be taken as authority for any general proposition that a constable may make arrests which are unlawful and yet escape any liability for so doing.’
It is clear that this statement was not intended to qualify the test of “bona fides” for answering the question whether on any particular occasion a constable is acting in the execution of his office. The statement merely emphasises the difficulty which may arise in some situations of maintaining that a constable who has acted illegally was honestly intending to execute his duties, or had reasonable or probable cause for his actions. Where, as here, an answer to the particular legal point upon which the lawfulness or otherwise of the constable’s action depends, is not immediately apparent, the fact that lawyers ultimately conclude that the constable had acted illegally should be allowed very little, if any, significance in deciding these matters.
Applying the ratio decidendi in Chong v Miller ((1933), JLR 80) to the facts of this case as found by the magistrate, I have no hesitation in holding that even if it is conceded that constable Sylvester was acting under a mistaken notion of his powers of arrest under s 27 of the Main Roads Law [J], he was nevertheless honestly endeavouring to discharge his functions as a constable, and is therefore entitled to the protection of s 39 of the Constabulary Force Law [J].
Mrs Playfair did not seek to bring the constable under the umbrella of the section on this ground. She submitted that the power to regulate traffic which the constable was instructed and was endeavouring to exercise, was well within the authority given to constables by s 26 of the Constabulary Force Law [J]. The action of the plaintiff at 3 pm, when considered against the background of his negative response to the orders of the constable earlier that day, constituted a hindering of the constable in the execution of his duty to regulate traffic, and an offence within the meaning of the provisions of s 36 of the Constabulary Force Law [J]. The plaintiff was told the act for which he had been arrested, and was subsequently charged with an offence under s 36. In this situation, so argued Mrs Playfair, the plaintiff was found committing the offence of hindering a constable in the execution of his duty, and by virtue of the provisions of s 18 of the Constabulary Force Law [J] had been lawfully arrested. In my view these submissions of Mrs Playfair are valid, and I accept them.
The magistrate negatived malice in the constable. This was a question of fact for him to determine. There is no ground upon which this finding may be challenged, and indeed, in his submissions before us, Mr Scharschmidt did not seek to impugn the magistrate’s decision on the limb of the claim for malicious prosecution. There was ample “cause (that is, sufficient grounds ...) for thinking that the plaintiff was probably guilty” of the offences for which he was subsequently charged. Consequently, the constable had been given a cause for arresting the plaintiff which was “reasonable and probable” within the meaning ascribed to that phrase by Lord Devlin in Glinski v McIver ( 1 All ER 696,  AC 726,  2 WLR 832).
For these reasons I would dismiss the appeal and affirm the judgment of the magistrate.
ROBINSON JA. (Ag) I have had the benefit of reading the judgment of Fox JA, and entirely agree with his analysis of the judgment in Murphy v Richards ((1960), 2 WIR 143) and with his conclusion that that case should no longer be regarded as an authoritative statement of the law relating to the protection afforded to a constable under s 39 of the Constabulary Force Law [J]. I do wish however, to
express my considered opinion on the question of a constable’s power of arrest under s 27 of the Main Roads Law, Cap 231 [J].
At the hearing of this appeal, Mr Scharschmidt submitted that a duty is imposed on the constable to demand the name and address of the person whom he is alleging has committed an offence under s 25 of the Main Roads Law [J] and that by virtue of the provisions of s 27 (3) of the said Law, this duty is a condition precedent to arrest. He said that this is the proper construction of s 27 (3) and since this duty was not discharged, the arrest was unlawful. He cited Dumbell v Roberts and others ( 1 All ER 326, 113 LJKB 185, 170 LT 227, 108 JP 139, 60 TLR 231, 42 LGR 111) as “covering the situation in the present case.” In that case, the police made an arrest under s 507 of the Liverpool Corporation Act 1921 [UK]. At the hearing the charge was dismissed. In the subsequent action for false imprisonment, the court held that the arresting constables failed to comply with the condition precedent to the exercise of the right to arrest without warrant as required by the provisions of s 513 of the Act since they made an attempt to ascertain the plaintiff’s name and address.
Section 513 provides:
‘It shall be lawful for any police constable ... to arrest and detain without warrant any person whose name and residence shall be unknown to such constable and cannot then be ascertained by him and who shall commit any offence against the provisions of this part of this Act.’
It is clear that this section imposes a duty on the constable, as a condition precedent to making an arrest.
Section 513 is in substance similar to s 22 of the Town and Communities Act, Cap 384 [J] where a similar duty is imposed on a constable as a condition precedent to arrest and the section sets out this condition precedent in similarly clear language.
Section 27 (3) of the Main Roads Law Cap 231 [J] does not set out either in clear language or otherwise, any such condition precedent as is being argued. Further, s 27 does not limit the power to arrest a person found committing an offence which the constable has under s 18 of Cap 72 [J]. Section 27 (3) merely makes a proviso to the section in the language therein set out, ie provided that “no person shall be liable to arrest if, on demand, he shall give his name and address ...”.
The provisions of s 27 (3) date back to Law 11 of 1892 [J]. Section 2 of that law provides:
‘The power of arrest given by section 25 of Law 41 of 1887 shall extend to offences on the Parochial Roads as well as to offences on Main Roads, and shall, in the case of offences on either Main or Parochial Roads, extend to cases where, although any such offences has not been committed in view of the Constable, such constable shall be informed by some person known to him that such offence has been committed in the sight of such person, and shall be required by him to arrest the offender:
Provided that no person shall be liable to be arrested under the said section or this section if, on demand, he shall give his name and address, unless the Constable shall have reason to believe and believes the name and address given to be false.’
Section 25 of Law 41 of 1887 provides:
‘The Director of Public Works or any person authorised by him or any Justice of the Peace or constable, and all persons whom they or any one of them may at any time call to their assistance may take into custody without warrant, to be dealt with according to the provisions of this Law, any person who is guilty in their sight of any of the above specified offences.’
The specified offences referred to are set out at s 24 of that Law and are in substance similar to those in s 25 of the Main Roads Law Cap 231 [J].
It is clear that in 1887, by Law 41, the constable had “full” powers of arrest. In 1892, the proviso was put in the Law exempting from arrest a person liable to be arrested if the constable demands his name and address and they are given and the constable has no reason to doubt their correctness. If no “demand” is made by the constable, he has his full powers of arrest as he had under s 25 of Law 41 of 1887 now s 27 (1) of Cap 231 [J]. If the circumstances are such that the constable decides not to make this “demand” as in this case with a persistent pedlar of goods on the main road (Dunns River and Pineapple Place) then he may arrest under s 27 and clear the roadway which was his duty on that day. If “demand” is not made by the constable, the subsection does not apply.
What does the word “if” mean in the subsection? It means what that word is commonly known to mean and gives the constable a discretion, ie whether he should go further and get the name and address of the offender and summon him to court or arrest him there and then. The “demand” must come from the constable–the “demand” in the subsection is not in imperative terms and there is no duty or condition precedent to arrest provided for in the subsection as in the case in s 513 of the Liverpool Corporation Act [UK] under which Dumbell v Roberts ( 1 All ER 326, 113 LJKB 185, 170 LT 227, 108 JP 139, 60 TLR 231, 42 LGR 111) was decided.
I hold that s 27 (3) only applies where “demand” is made and not otherwise. No demand was made in this case and consequently the power of arrest was not qualified or restricted.
Further, it is my opinion that if it was intended to be a duty on constables to “demand” the name and address before the question of arrest arose in all cases, and thus be a condition precedent to arrest in all cases, one would expect to find some provision to that effect in s 27 (1) which gives general powers of arrest; the power to arrest would be made expressly subject to the “demand” and would apply in every case and be a condition precedent to arrest in every case, ie had the section gone on to provide to the effect “and any person who fails to give his name and address on demand.”
For the above reasons, I hold that the arrest was lawful. I would dismiss the appeal and affirm the judgment of the learned resident magistrate.
GRAHAM-PERKINS JA. The appellant claimed against the respondents damages for false imprisonment and malicious prosecution arising out of his arrest by the first named-respondent (hereinafter called “the respondent”), a special constable, on 21 August 1969, and his prosecution thereafter on two informations, one of which charged him with an offence under s 25 (9) of the Main Roads Law, Cap 231 [J]. The other information charged an offence under s 36 of the Constabulary Force Law Cap 72 [J]. The appellant was acquitted on both informations.
At the trial of the action out of which this appeal arises the learned resident magistrate dismissed the appellant’s claim and awarded judgment in favour of the respondent. The appellant does not challenge the dismissal of his claim in respect of his prosecution by the respondent. What he does question is the dismissal of his claim for false imprisonment.
I do not propose to dwell on the evidence already adequately reviewed by Fox JA, but rather to examine the two principal questions involved in this appeal. These are:
(i) Did the respondent have any authority to arrest the appellant in view of the provisions of s 27 (3) of the Main Roads Law Cap 231 [J]?
(ii) Is the respondent entitled in the circumstances of this case to claim the protection afforded by s 39 of the Constabulary Force Law, Cap 72 [J]?
The authority under s 27 (3) of Cap 231.
Section 25 of Cap 231 catalogues some twenty-nine offences in respect of which s 27 (1) confers on a constable, among others, the authority to “take into custody without warrant ... any person who is guilty in [his] sight of any of the offences” specified therein. All but five of these offences attract a maximum fine of four dollars. Section 27 (3) states:
‘No person shall be liable to be arrested under this section if, on demand, he shall give his name and address unless the constable or other person having power of arrest under this section has reason to believe and believes the name and address given to be false.’
There cannot be the least doubt that this subsection imposes a restriction on the authority to arrest conferred by the first subsection. The important question, however, is: “What is the extent and purpose of that restriction?” The resident magistrate expressed his conclusion as to the meaning to be ascribed to the subsection thus:
‘I interpret s 27 (3) to mean that if the constable demands from a person (who comes within this definition of the word ‘guilty’ as interpreted above) his name and address, he can only arrest him if he has reason to believe the name and address given to be false. This section does not require him to demand the name and address. In my view the defendant could, if he is satisfied that there is a proper case to lay before the court, arrest the plaintiff herein.’
Is this interpretation of s 27 (3) tenable? I think not. I agree that if a constable demands the name and address of a person “guilty in his sight” of an offence specified in s 25 that constable ceases to have the authority to arrest if that person complies with such demand, unless, of course, the constable has some reason to believe and does believe the name and address given to be false. Implied in the magistrate’s interpretation, however, is the proposition that an offender’s liability to arrest depends on the election by the constable to make or not to make the relevant demand. It is clear, I think, that the first part of s 27 (3) does two things. It imposes, in very precise language, a positive prohibition against arrest, and defines in equally precise terms the area in which that prohibition is to operate. This latter it does by the subordinate conditional clause “if, on demand, he shall give his name and address”. It is, in my view, of crucial importance to note that this clause does not, either as a matter of grammar or of logic, involve a duality of conditions. It contains a single and indivisible condition and that condition is the giving of a true name and address by the person of whom the constable makes the demand. The ancillary clause (with its subject and predicate understood) “on demand”, to whatever verbal refinement and analysis it may be subjected, can only mean “following or consequent upon, or in pursuance of, a demand made therefor by the constable”. This ancillary clause, quite clearly, does not import or contain a condition, nor can its interposition logically alter the identity and scope of the area within which the prohibition is to operate. If an offender gives his true name and address on demand he complies with the one condition which brings him within the area of operation of the prohibitory provision. That this must be so becomes clear if the ancillary clause is transposed so that the subordinate clause read: “if he shall give his name and address on demand”. It would appear to be quite unarguable that the one condition which attracts the prohibition is the giving of a true name and address on demand and, very clearly, not the making of the demand. In order to constitute the making of the demand the condition on which the prohibition depends the subordinate clause would have to be read as if it were framed thus: “if the constable elects
to demand his name and address and he complies therewith”. To so read the clause would, in my view, be to do strange violence to its language and to render, to a very large extent, quite meaningless the clause following and beginning with the word “unless”. It would also offend the principle that in the interpretation of a statute words are not to be construed, contrary to their meaning, as embracing or excluding cases so as to indulge some notion as to what is just or expedient.
The second part of the subsection provides, in terms equally precise, that notwithstanding the giving of a name and address by the person of whom demand is made the constable may arrest if he has reason to believe and does believe that the name and address so given are false. The clause commencing with the word ‘unless’ introduces the single circumstance in which the prohibition against arrest is not to operate. For my part I find it quite impossible to read s 27 (3) as containing a positive prohibition against arrest in a particular circumstance unless another particular circumstance comes into existence, and, at the same time, as investing a constable, among others, with an absolute right to determine whether he will, in any circumstance, allow that prohibition to operate. It would be an extraordinary conclusion that the legislature intended the protection from arrest given by s 27 (3) to depend entirely on the particular idiosyncracies of a particular constable, or other person, who might, or might not, choose to make the relative demand. Any such manifestly absurd consequence must, in my view, be studiously avoided.
I am not the least impressed by the argument predicated on the desirability of an unqualified right in a constable, among others, to arrest a persistent offender. That argument ignores not only the purpose but the presence of the third subsection in s 27. Let the absence of that subsection be assumed so that the authority to arrest depended wholly on s 27 (1). Proceeding from that assumption it becomes important to note that the authority to arrest conferred by the first subsection on “the Director, or any person authorised by him, or any Justice or constable” is not expressed in terms which make it obligatory upon those persons or any of them to execute an arrest. A constable, or any of the persons named, may arrest any person guilty of an offence under s 25. This clearly implies that the constable may, instead of arresting an offender, cause a summons to be issued. In the case of a persistent offender a constable would clearly be entitled to arrest without reference to the true name and address of that offender. In any other case a constable would clearly be entitled to consider the desirability or otherwise of a summons. His decision to arrest or, in the alternative, to proceed by way of summons, would undoubtedly be dictated by the particular circumstances in which he is required to act. If he chose to proceed by summons he would be entitled to demand the name and address of the offender. If that offender refused to disclose his name and address or gave a name and address which the constable had some reason to believe to be false, the latter could certainly effect an immediate arrest. If these results follow from s 27 (1), as in my view they certainly do, then one is driven to ask why the legislature thought is necessary to insert the third subsection. Certainly not to invest a constable and the other persons named with precisely the same discretion they already enjoy under s 27 (1). It would seem clear that the legislature intended that a summons should issue in respect of the relatively minor offences enumerated in s 25, except in those cases where the name and address of an offender are unknown to a constable who, having made the demand contemplated, is given a name and address which he has some reason to believe to be false. I am of the firm view that the words “on demand” in s 27 (3) impliedly confer a right and a correlative duty on a constable, among others, to demand the name and address of a given offender; they do no more. I hold that a prerequisite to the exercise of the authority to arrest under s 27 is a demand made by a constable followed by the disclosure
of a name and address which he has some reason to believe is false. It is, perhaps, not without importance to note that Mrs Playfair did not seek to argue the contrary. She did argue, however, that even if it be conceded that the arrest of the appellant was not authorised in the circumstances, the words uttered by the respondent on his arrest of the appellant would not confine him within the limits of s 25 and s 27 of Cap 231, but enabled him to justify the arrest by reference to the Constabulary Force Law, Cap 72 [J]. In support of her submission Mrs Playfair called in aid the provisions of s 26 (1) of Cap 72. As far as is relevant that subsection provides:
‘Whenever in the opinion of the Commissioner, a street is liable or likely to be thronged or obstructed, it shall be lawful for him and for any constable acting under his authority-
(iv) generally to do all that is necessary to prevent a congestion of the traffic and to provide for the safety and convenience of the public.’
Subsection (3) provides:
‘If any person disregards or fails to obey any reasonable order ... of any constable ..., given with the object of carrying out the provisions of this section, he shall be guilty of an offence ...’
Mrs Playfair submitted further that it was not without significance that the second information was founded on s 36 of Cap 72. This information charged that the appellant “unlawfully did hinder this complainant ... in the execution of his duty ...”. In my view these submissions, though attractive, are manifestly without merit. The offence created by s 26 (3) of Cap 72 is not the offence of “causing congestion of traffic”. The offence is constituted by the disregard of, or the failure to obey, a reasonable order of a constable given with the object of carrying out the provisions of the section. In any event there is no evidence that the respondent disclosed to the appellant that his arrest proceeded from his disregard of, or his failure to obey, any such reasonable order. Indeed the appellant was not so charged and it is clear that the provisions of s 26 were not, at the time of the appellant’s arrest, present to the mind of the respondent. As to the second information there is not a scintilla of evidence that the appellant in any way hindered the respondent in the execution of any duty. For the reasons I have set out above I hold that the respondent had no authority to arrest the appellant.
The protection afforded by s 39 of Cap 72.
This section provides:
‘Every action to be brought against any Constable for any act done by him in the execution of his office, shall be an action on the case as for a tort; and in the declaration it shall be expressly alleged that such act was done either maliciously or without reasonable or probable cause; and if at the trial of any such action the plaintiff shall fail to prove such allegation he shall be nonsuited or a verdict shall be given for the defendant.’
In Murphy v Richards ((1960), 2 WIR 143) the former Court of Appeal held that where a constable acted under a mistaken notion as to his powers of arrest under a statute he was not entitled to the protection of this section. In arriving at that conclusion the Court expressed its unanimous approval of, and elected to be guided by, a principle enunciated by Cockburn CJ, in Griffith v Taylor ((1876), 2 CPD 194, 46 LJQB 152, 36 LT 5, 41 JP 340, 25 WR 196). Let me say here that, like Fox JA, I am of the clear view that Murphy v Richards ((1960), 2 WIR 143) was wrongly decided and should not be followed, but I wish to state my own reasons for so concluding.
Where a person consciously does an act in pursuance, or in the execution, of an office by which he is clothed with an authority to act he will, in the ordinary course of things, intend to act in pursuance, or in the execution, of that office.
Quite obviously that act may be accompanied by circumstances capable of demonstrating a pretence in the actor to act “under colour of the law” as distinct from an honest intention to act in pursuance or execution of his office. Apart from such a case I am quite unable to detect any distinction between a person who acts in the execution of an office and one who intends - a purely mental state - to act in the execution of that office. Any such alleged distinction must necessarily be entirely artificial. If, as I hold, there is no real distinction between acting and intending to act in the execution of an office, on what principle can it be held that an actor who is guilty of a bona fide mistake as to fact is to be regarded, in the context of s 39 of Cap 72, in a different light from the actor who makes a bona fide mistake as to his authority under a particular statute where each acts or intends to act in the execution of his office. Here again I am unable to appreciate the distinction sought to be established in Murphy v Richards ((1960), 2 WIR 143). As indicated earlier that distinction rested on the judgment of Cockburn CJ, in Griffith v Taylor ((1876), 2 CPD 194, 46 LJQB 152, 36 LT 5, 41 JP 340, 25 WR 196) which, in the court’s view, laid down the principle which had been enunciated in passages appearing in Maxwell On The Interpretation Of Statutes (10th edn), pp 233-4.
It is somewhat unfortunate that Cockburn CJ, did not disclose any of “the latest authorities on the subject of notice of action for anything done in pursuance of” the statute with which he was dealing, and in which he presumably found some support for his conclusion. It is apparent that the learned Chief Justice did not, in his examination of the “latest authorities”, advert to cases such as Selmes v Judge ((1871), 24 LT 904, (1871) LR 6 QB 724, 19 WR 1110, sub nom Judge v Selmes, 40 LJQB 287, 35 JP 645) decided five years earlier. In that case Blackburn J, with whom Lush and Hannen JJ, agreed, said ((1870-71), LR 6 QB at pp 727-728):
‘The judge thought that the defendants were not acting under the 5 & 6 Wm 4, c 50, and that consequently they were not entitled to the notice of action allowed thereby. I agree that if a person knows that he has not under a statute authority to do a certain thing, and yet intentionally does that thing, he cannot shelter himself by pretending that the thing was done with intent to carry out that statute. In this case nothing is stated shewing that the defendants, when they made the rate in question, knew that it was not allowed by the statute under which they were appointed, and it has not been found that the defendants were trying, under the colour of the law, to get money to which they had no right, in which case they would not have been protected by the Act. The only illegal act done by the defendants was to make an informal rate; they proceeded to collect it and received from the plaintiff the amount assessed upon him; in these transactions it is clear that the defendants intended to act according to the duties of their office as surveyors, although they mistook the legal mode of carrying out their intention. Neither in Hermann v Seneschal ((1862) 13 CBNS 392, 32 LJCP 43, 6 LT 646, 26 JP 598, 11 WR 184) nor in Roberts v Orchard ((1863), 2 H & C 769, 33 LJ Ex 65, 9 LT 727, 12 WR 253) was it decided that a defendant would not be entitled to notice of action, because he had been mistaken in the law. In Hardwick v Moss ((1861), 7 H & N 136, 31 LJ Ex 205, 4 LT 802, 7 Jur NS 804) surveyors had obstructed a highway without any statutory authority, but the Court of Exchequer held that as they intended to act pursuant to the Highway Act, they were entitled to notice of action. In Wordsworth v Harley ((1830), 1 B & Ad 391, 9 LJOSMC 50) the question arose upon a former Highway Act; a very high-handed course had apparently been pursued by the defendant, a surveyor of highways, who took a portion of the plaintiff’s field and added it to a public road without the plaintiff’s consent: Lord Tenterden CJ, with the concurrence of the rest of the court, held that the defendant was entitled to the protection of the Highway Act, although he considered the case to be very unfortunate for the plaintiff. It was assumed in that case that if in repairing highways the surveyor illegally and improperly took a portion of land, he was acting in pursuance of the statute, and might shelter himself under its provisions. In the present case it was the duty of the defendants to collect highway rates, and they intended to act
in pursuance of the statute; they were therefore entitled to notice of action’
Selmes v Judge ((1871), 24 LT 904, (1871) LR 6 QB 724, 19 WR 1110, sub nom Judge v Selmes, 40 LJQB 287, 35 JP 645) was, in 1876, one of the “latest authorities” on the subject of notice of action and those authorities certainly did not lend any support to the principle enunciated either in Maxwell or in Griffith v Taylor ((1876), 2 CPD 194, 46 LJQB 152, 36 LT 5, 41 JP 340, 25 WR 196). There is, in my view, no jurisprudential sanction for holding, as Cockburn CJ, was apparently prepared to hold, that a bona fide mistake as to the meaning of certain words in a particular section of a statute should entail consequences quite different from those which result from a bona fide mistake as to the meaning of other words in the same section.
But such considerations apart, it is reasonably clear that the real significance and purpose of s 39 of Cap 72 was to introduce into causes of action against members of the Jamaica Constabulary the elements of malice and the absence of reasonable and probable cause in those cases in which, at common law, those elements formed no part of the cause of action and were not, therefore, matter of pleading. The cause of action in false imprisonment is but one example. At common law a plaintiff is required to do no more than to allege and prove that he was imprisoned. The onus is then on a defendant to justify that imprisonment. Under s 39 a plaintiff is required to allege and prove, as an essential part of his cause of action, that the defendant acted either with malice or without reasonable and probable cause. But whatever the cause of action s 39 quite obviously envisages that the act of a constable of which a plaintiff complains is one capable of giving rise to a cause of action in tort, and that action is required to be brought as if it were an action on the case, hence the necessity for the allegation of malice or an absence of reasonable and probable cause. See, for example, O’Connor v Isaacs ( 1 All ER 513,  2 QB 288, 120 JP 169, 100 Sol Jo 171, affirmed  2 QB at p 328,  2 All ER 417, 120 JP 325, 100 Sol Jo 432). It was, perhaps, the failure to recognize and identify the true purpose and scope of s 39 that led to the discovery of some supposed distinction between an arrest by a constable which proceeds from his bona fide belief in a “non-existent state of facts” and an arrest resulting from “a mistaken notion” of his authority under a particular statute. It is of some importance to note that in Murphy v Richards ((1960), 2 WIR 143) the court made not the least attempt to examine or to explain the basis of the distinction.
If the essential criterion in resolving the issue whether an act done by a constable is an act done “in the execution of his office” is the lawfulness or unlawfulness of the act, so that an act proceeding from his mistaken notion as to his authority under a particular statute makes it impossible for him to call in aid the provisions of s 39, then it is far from easy to see the purpose of that section since such an act would not, according to Murphy v Richards ((1960), 2 WIR 143) be an act done in the execution of his office. That such an act may be capable of giving rise to a cause of action in tort would be irrelevant. Again, if the act is lawful so that it may be said to be an act done in the execution of his office as a constable it is equally difficult to see the purpose of s 39 since an act sanctioned by the common law or statute law of this country would hardly be capable, in the absence of negligence, of giving rise to an action on the case in tort. If the constable is guilty of a bona fide mistake of fact then s 39 would again be pointless in its requirement as to an allegation of malice, since such a mistake will always negative malice. Similarly, a bona fide mistake of law, and more particularly on a difficult question of law, would not be evidence of an absence of reasonable and probable cause. See Phillips v Naylor ((1859), 4 H & N 565, 28 LJ Ex 225, 5 Jur (NS) 996, 118 RR 615); Johnson v Emerson ((1871), LR 6 Ex 329, 40 LJ Ex 201, 25 LT 337).
Having examined the cases cited - as also those to which no reference was made - by the court in Murphy v Richards ((1960), 2 WIR 143) and the English cases prior to Griffith v Naylor ((1876), 2 CPD 194, 46 LJQB 152, 36 LT 5, 41 JP 340, 25 WR 196), I am compelled to the clear conclusion that those two cases do not accord with the weight of judicial opinion and authority which preceded them. As to McKane v Parnell ((1956), 7 JLR 32) I do not regard that case as lending any assistance to the solution of the second problem posed in this appeal.
In this case the magistrate has found an absence of malice in the respondent. This finding was, on the evidence, fairly open to him and cannot be disturbed. He also found that there was no absence of reasonable or probable cause for the arrest of the appellant. In the particular circumstances of this case this latter finding was, in my view, an eminently reasonable one. I would dismiss the appeal.
(1972) 19 WIR 102
Re Estate Of Princess Nina Aga Khan Dec’d Orse Nina Dyer Attorney-General Intervening
SUPREME COURT OF JAMAICA–PROBATE AND ADMINISTRATION
21, 22 APRIL, 22-26 NOVEMBER, 1 DECEMBER 1971, 25 MAY 1972
Legitimacy – Child born during wedlock – Presumption of legitimacy – Child born when mother living with another man as his “wife”‘ – Other man supplying information re child’s birth – Birth certificate stating child’s surname as that of man with whom her mother lived – Whether presumption of legitimacy displaced.
Conflict of laws – English domicile of origin – Refusal of English court to make declaration as to legitimacy of child on application of alleged father – Acquisition of new domicile and citizenship by child resulting from marriage – Court of new domicile making declaration as to child’s legitimacy after her death intestate – Application by alleged father for declaration as to his entitlement to child’s property in Jamaica – Whether court in Jamaica bound by declaration of foreign court – Intestates’ Estates and Property Charges Law, Cap 166 [J], s 4 – Family Law Reform Act 1969 [UK], s 26 – Judgments (Foreign Reciprocal Enforcement) Law, Cap 184 [J], s 6.
ND was born in England in February 1930, and died intestate in France in 1965 while domiciled in Switzerland, and leaving personal and real estate in Jamaica. WSA, an Englishman, who claimed that ND was his legitimate child, had married ND’s mother, EA, in 1923. EA had eloped with one Stanley Dyer, a married man, in 1929, and had lived with him as man and wife at all material times. On discovering the whereabouts of his wife WSA arranged secret meetings with her and continued to have sexual intercourse with her ND was born in a nursing home but WSA did not visit his wife while she was in that institution. ND’s birth certificate indicated that the informant, Stanley Dyer, was her father and that her mother was Elsie Dyer, the same person as EA, WSA’s wife, EA having assumed the name of Elsie Dyer while living with Stanley Dyer as his “wife”. In 1965 a court in Switzerland appointed administrators of the estate of ND. In 1966 WSA took proceedings in England seeking declarations as to the validity of his marriage to EA, and as to the legitimacy of ND. The latter declaration was refused on the ground that the court had no jurisdiction to make declarations of the legitimacy of persons other than the petitioner. WSA then petitioned the Swiss court for a declaration that the estate of ND devolved on him as her legitimate father. The Swiss court so declared and revoked the letters of administration granted in 1965. WSA appointed a trust company in Jamaica to apply for letters of administration and for this purpose he was required to exhibit all relevant documents in support. From these documents it appeared that there was material suggesting that ND was illegitimate, in which event WSA would not be entitled to the property which ND left in Jamaica. In the result proceedings were instituted by way of motion seeking a declaration that WSA
was absolutely entitled to the property in Jamaica. The Administrator-General sought to resist the motion for this declaration on the grounds that: (i) since ND’s domicile of origin was English the Swiss court was not competent to pronounce, in the international sense, on her status so that the court of Jamaica could not recognize any such pronouncement; and (ii) there was, on the facts, strong and satisfactory evidence to rebut the presumption that ND, having admittedly been born during wedlock, was legitimate.
Held: that the declaration sought would be granted because:
(i) there was no authority for the proposition that the only court competent to pronounce on the legitimacy of a person was the court of the country of his origin;
(ii) the judgment of the Swiss court was a judgment in rem by a competent foreign court affecting the status of ND and should, therefore, be recognised as binding in Jamaica since:
(a) it would be unwise for a court in Jamaica to hold that ND was to be regarded as a bastard here but as legitimate in Switzerland;
(b) it would be unwise for the court to hold that in so far as the movable portion of ND’s property in Jamaica was concerned she was to be regarded as legitimate and that to that extent the declaration by the Swiss court was valid, but that so far as the immovable property was concerned she was to be regarded as a bastard and that to that extent the Swiss declaration was binding;
(iii) on the facts the presumption of legitimacy in favour of ND had not, on a balance of probabilities, been displaced.
Case referred to
Aldrich v Attorney-General  1 All ER 345,  P 281,  2 WLR 413
Lazarus-Barlow v Regent Estates Ltd  2 All ER 118,  2 KB 465, (1949), LJR 1539, 65 TLR 412, 93 Sol Jo 512
Re Goodman’s Trusts [1881-1885] All ER Rep 1138, (1881), 17 ChD 266, 50 LJ Ch 425, 44 LT 527, 29 WR 586
Re Don’s Estate (1857), 4 Drew 194, 27 LJ Ch 98, 3 Jur NS 1192, 5 WR 836
Lynch v Paraguay Provisional Government [1861-1873] All ER Rep 934, (1871), LR 2 P & D 268, 40 LJP 81, 25 LT 164, 19 WR 982
Gray v Formosa  3 All ER 419,  P 259,  3 WLR 1246
Salvesen v Austrian Property Administrator  All ER Rep 78,  AC 641, 96 LJPC 105, 137 LT 571, 43 TLR 609
Morris v Davies [1835-1842] All ER Rep 270, (1837), 5 Cl & Fin 163, 1 Jur 911
Cotton v Cotton  2 All ER 105,  P 305,  2 WLR 947
Watson v Watson  2 All ER 1013,  P 48,  3 WLR 708
Birtwhistle v Vardill (1835), 2 Cl & Fin 571, 6 ER 1270
Motion for declaration that father of deceased intestate absolutely entitled to property in Jamaica.
H DaCosta QC and J Leo-Rhynie (instructed by Milholland Ashenheim and Stone) for the applicant
Dr K Rattrary QC and Mrs s Playfair (instructed by Crown Solicitor) for the Administrator-General
W McCalla for the Attorney-General
PARNELL J. This is an interesting case which raises important points with a strong flavouring of private international law. Learned counsel for the Attorney-General did not take any further part in the proceedings after the second day. The interest of the Attorney-General was, therefore, watched by Dr Rattray. Both Mr DaCosta and Dr Rattray argued their cases with commendable skill. The preliminary objection raised in the early part of the proceedings touching the jurisdiction of the court and which was not entertained, was, with ability, supported by Mr McCalla before he made his exit.
I shall state briefly what the substance of the contention is. The deceased whom I shall hereafter refer to as “Nina Dyer” or “Nina” was born in England on 15 February 1930. She died in France on 3 July 1965, while being domiciled in Switzerland. Nina died intestate leaving a lot of property. Part of that property is in Jamaica and it consists of personal estate estimated to be of the value of $1,000 and real estate in the parish of Portland and estimated to be of the value of $100,000.
Mr William Stanley Aldrich, an Englishman, who is now in his seventy third year claims that Nina was his daughter lawfully begotten with his wife Elsie Edith, nèe Rogers, now deceased and whom he married in London on 8 June 1923. Mrs Aldrich is said to have been a woman without any independent means. Mrs Aldrich eloped with a wealthy Englishman, Stanley Dyer, in or about June 1929. Mr Dyer had a wife; he was then about 58 years old but he left his wife to live with Mrs Aldrich who was then about 22 years of age, and who is described as “very attractive”. Mr Aldrich discovered where his wife was and he used to see her. Sexual intercourse between Mr Aldrich, who was about 29, and his wife did not cease after she had eloped. Nina was born at a nursing home while Mrs Aldrich was still living with Mr Dyer. Her birth was registered on 5 March 1930. The father is stated in the birth certificate to be: “Stanley Hartop Dyer, Ceylon Tea Planter of 136, Chatsworth Road, NW6”. The informant was the said Stanley Hartop Dyer. The name of the mother is stated thus: “Elsie Dyer formerly Rogers”.
If the birth certificate of Nina is to be accepted at its face value, it would mean that Mr Dyer was giving information to the Registrar of Births and Deaths that “Elsie Dyer formerly Rogers” was then his lawful wife. But the unchallenged evidence before me is that up to May 1954, when Mrs Aldrich died, she and Mr Aldrich had not been divorced. The birth certificate, therefore, is misleading in a material particular. But the giving of this misleading information is understandable. It is a human story which I am unfolding as simply as I can on the background of an English scene. Certain principles which the Victorian Age had generated on the conduct of the ordinary citizen in England in 1929 - and even as far away as in Jamaica – were still in full force and effect. In due course, I shall go into a few details as I touch certain stages of the play.
Since the death of Nina, the following events are to be noted.
(i) On 13 August 1965, a court of competent jurisdiction in Switzerland appointed three attorneys-at-law to be administrators of the estate of the deceased Nina.
(ii) On a date in October 1966, the administrators, by power of attorney, appointed the Royal Bank Trust Company (Jam), Ltd, to be the “true and lawful attorney in Jamaica for the Administrators”.
(iii) In the course of time - the date is not clear - the Royal Bank Trust Company applied for letters of administration in connection with the property of the deceased to which I have already referred.
(iv) On 5 April 1967, letters of administration of all the estate in Jamaica which by law devolved on the deceased Nina were granted by the Supreme Court to
the applicant (Royal Bank Trust Company) as the attorney of the administrators “until they shall apply to this Honourable Court for and obtain a grant to them of Letters of Administration in the estate of the said deceased.”
(v) In October 1966, Mr Aldrich took out proceedings in England with a view to his securing:
(a) a declaration of the validity of his marriage to Nina Dyer’s mother, and
(b) a declaration of the legitimacy of Nina Dyer.
On 24 November 1967, Ormrod J, granted the prayer in (a) above but dismissed that part of the prayer which sought a declaration that Nina was legitimate. The ground of the dismissal is this. Under the Law, the person seeking the declaration of legitimacy must be the petitioner himself. But since Nina was dead (she being the proper petitioner if she had been alive), her father could not obtain such a declaration. (See Aldrich v Attorney-General ( 1 All ER 345,  P 281,  2 WLR 413).) In the course of his judgment, the learned judge said this ( 2 WLR at p 421):
‘I should make it clear, however that if this court had to decide this issue, ie whether Mr Aldrich was the father of the late Miss Dyer, in proceedings relating to a claim which had to be adjudicated upon in this court, the court would do so upon such evidence as was available, for example, in a suit by Mr Aldrich claiming assets in this country.’
I shall take a note of this robust stand of Ormrod J.
(vi) In a petition dated 21/23 March 1968, and filed in the Swiss court, Mr Aldrich outlined the facts of his case and sought, inter alia, a declaration that:
‘The estate of the late Nina Dyer devolves upon her legal heirs, or rather on her legitimate father Mr William Stanley Aldrich.’
There were about 14 respondents named in the petition. The respondents did not oppose the action but on the contrary, they accepted its substance.
(vii) In a judgment dated 14 November 1968, a court of competent jurisdiction in Switzerland in which country Nina was domiciled at the date of her death, declared and pronounced, inter alia:
‘That the estate of the late Nina Sheila Dyer devolves upon her legitimate father William Stanley Aldrich.’
The court also revoked the Letters of Administration granted on 13 August 1965. For the time being I shall refer to the competency of the court in so far as it relates to proceedings concerning the property of the deceased dying intestate and who at the date of death was domiciled within the court’s jurisdiction.
(viii) On 3 November 1969, Mr Aldrich, by power of attorney, appointed the Royal Bank Trust Company (Jam), Ltd to be his attorney in Jamaica in respect of the property of the deceased Nina Dyer. It would appear that when the Trust Company applied for letters of administration on the instructions of Mr Aldrich who had to exhibit all relevant documents in support of the application, it was observed that there was evidence which would suggest that Nina was not “lawfully begotten”. If she was a bastard, then Mr Aldrich would not be competent to instruct the Trust Company to act on his behalf; he would not be entitled to share in the estate which the deceased left in Jamaica, and in fact the Attorney-General, on behalf of the public, could claim the whole property in default of any lawful parent or blood relation pursuant to the Intestates’ Estates and Property Charges Law, Cap 166 [J].
The Administrator-General and the Attorney-General having been made aware of the position, issues are now joined on this question: is William Stanley Aldrich the legitimate father of the deceased Nina? If this question in this form is a little too pointed or controversial - the issue can be put into another form, namely: is
William Stanley Aldrich entitled to any and what part of the estate of the deceased Nina which she left in Jamaica? What is before me, therefore, is a notice of motion and, in its amended form, it seeks an order as follows:
‘That the said William Stanley Aldrich be declared to be entitled to the entire estate of the deceased in Jamaica absolutely and beneficially.’
Before I return to an examination of the evidence which was put before me, I should state a few facts relevant at this stage. These are not in dispute.
(a) The deceased Nina Dyer died without any husband or children her surviving.
(b) The mother of the deceased died in May 1954 as a result of a car accident.
(c) Mr Stanley Dyer died in Ceylon on 11 December 1945.
(d) Mr Stanley Dyer made a will naming the mother of Nina as the sole beneficiary. No mention is made of his “daughter” Nina Dyer in the will.
(e) Mrs Aldrich left a will in 1954. She left most of her estate, which she inherited from Mr Dyer, to her daughter Nina who was her only child. Mr Aldrich is not a beneficiary under the will of his wife.
The first two days of the hearing were spent in discussing a preliminary point raised by Dr Rattray. In the original notice of motion, Mr Aldrich sought a declaration that he may be declared the legitimate father of the deceased. Dr Rattray argued that the court had no jurisdiction to make any such declaration and his reasoning is based on the decision given in England in 1967 in Aldrich v Attorney-General ( 1 All ER 345,  P 281,  2 WLR 413) to which I have already referred. The objection was not sustained and at this stage I should mention something which is of practical importance.
Under the Intestates’ Estates and Property Charges Law, Cap 166 [J] the persons entitled to share in the distribution of the estate of an intestate are clearly set out. One person mentioned is put thus under s 4 (1) (iv):
‘If the intestate leaves no issue but one parent, then subject to the interest of a surviving husband or wife, the residuary estate of the intestate shall be held in trust for the surviving father or mother absolutely.’
And the Attorney-General, acting on behalf of the public, is allowed to intervene by virtue of s 4 (1) (vi) which states:
‘In default of any person taking an absolute interest under the foregoing provisions the residuary estate of the intestate shall belong to the Crown as bona vacantia, and in lieu of any right to escheat.’
It seems to me that by the very language of the statute, any person who claims any interest in the estate of an intestate must prove his relationship with the deceased. And if he claims as a parent (father), he is impliedly, if not expressly, saying that the deceased was legitimate since under our law - at any rate up to the present time - a father of a bastard dying intestate cannot claim any interest in the estate of the deceased. If the front door is closed to Mr Aldrich, he may get in through the side door and obtain, whether in his favour or against him, the very substance of his prayer which formed the basis of the argument touching the jurisdiction of the court. Mr DaCosta abandoned the frontal assault during the proceedings and sought leave to amend the notice of motion in the form which is now before me.
I shall now proceed to examine the evidence in more detail. The examination will put it in stages. The only evidence in the case concerning the issue raised as to the legitimacy of Nina comes from Mr Aldrich who came to Jamaica in order that he might be cross-examined on his affidavit. He was subject to a lengthy and careful cross-examination by Dr Rattray.
(a) Circumstances surrounding the early stages of the liaison between Mrs Aldrich and Mr Dyer – After the marriage between Mr Aldrich and his wife Elsie on 8 June 1923, they lived and cohabited continuously until June 1929. The couple lived in their house called “Kantara” in Caterham, Surrey. Among the neighbours of Mr and Mrs Aldrich in Caterham, were Mr and Mrs Stanley Dyer. Mr Dyer, aged 58, lived comfortably in a lovely house. He had his tea plantation in Ceylon.
Mr Aldrich was a working man in 1929. He had to travel in the west of England and in Wales in the course of his duties and would be away from home from Monday morning to a Friday evening each week. His young and attractive wife Elsie would be left alone in the house. Mr Aldrich’s standard of living could not be compared with that of Mr Dyer. What he could not afford to offer his wife, Mr Dyer could shower it in abundance. It appears that during the periods of absence of Mr Aldrich from home, a love affair between Mr Aldrich and the wealthy Mr Dyer had its genesis. And Mr Aldrich was going to have a shock. On a day in June 1929, he returned from one of his business trips to an empty house. His attractive wife had eloped with Mr Dyer. Up to this time Mrs Aldrich was a loving and affectionate wife. She and her husband shared the same room and she performed her wifely duties in every particular. But it appears that precautionary measures were being taken by Mr Aldrich with the co-operation of his wife against having any children. According to Mr Aldrich they could not afford having a child then. If one were to check on the economic position of the ordinary working man in England, USA and in Jamaica say during the period 1929-1931, one is able to understand fully the evidence of Mr Aldrich that he and his wife could not afford a child then. The “economic depression” which hit certain countries with its attendant consequences, for example the collapse of Wall Street, New York, in October 1929, has not escaped the memory of many today who experienced the days of depression.
(b) Mrs Aldrich is found in a house and her pregnancy is disclosed.– After Mr Aldrich found that his wife had eloped with Mr Dyer, he went in search of them. As a result of information received, he found her in a furnished flat at 136 Chatsworth Road, NW 6, London. Mr Aldrich persuaded his wife Elsie to return to Surrey. She agreed. For two weeks she lived with her husband during which time sexual intercourse took place. After two weeks, Mrs Aldrich left the house during the absence of her husband. She returned to the furnished flat which Mr Dyer had provided. Mr Aldrich went back to the flat and pleaded with her to return. This time, however, his persuasion did not work. But he was able to persuade her to meet him at “Kantara”, Surrey, in London, and at a house called “Tarrymore” belonging to Mr and Mrs Thomas Blyth, friends and neighbours of Mr Aldrich in Surrey. On several occasions during this period sexual intercourse took place. And during this trying period it appears that Mr Aldrich dismissed the decision taken during the earlier period of marriage that they could not afford a child. I shall quote his own words in paragraph 10 of his affidavit dated 25 March 1971:
‘I was so desperately anxious to get my wife back after she left my house that I can remember consciously trying to have a child in the hope that this would induce her to return to me.’
When he was cross-examined by Dr Rattray he reaffirmed his stand. This is what he said:
‘When my wife left me I did feel she would return if we had some tie. I tried to make her pregnant.’
In fact Mrs Aldrich did become pregnant. On an occasion when Mrs
Aldrich met her husband after she had left his house, she informed
him she . 0
The impression I get from this piece of unchallenged evidence is that at this convivial meeting, there was no recrimination between Mr Aldrich and his elderly rival for the comfort and love of Mrs Aldrich. After all she had presented one of them with a lovely daughter. So the question of who this lucky one was did not arise then for determination. Mr Aldrich gave the baby another present on a subsequent occasion. This time it was a doll. I shall refer to the occasion in due course. Before I proceed to another stage of the story, I must refer to a bit of evidence which should be mentioned in this setting.
After the baby was born, Mr Aldrich was still anxious for his wife to return to him with the baby. She refused his request. Finding that the situation was hopeless, he consulted his solicitors with a view to launching divorce proceedings. One Mr Knight, a solicitor’s clerk, went with Mr Aldrich to 136 Chatsworth Road. Mrs Aldrich and the baby are seen. The pleasure which she showed on seeing her husband is suddenly changed when the purpose of his mission is explained to her. The object was to obtain from her “a confession that she had committed adultery”.
Tears from Mrs Aldrich started to flow. Hysterics also put in their appearance. The sobbing wife said, “No Billy, you can’t do this to our baby”. This was understood to mean that since Mrs Dyer was not prepared to divorce her husband so that he could be free, Mr Aldrich should not divorce her. If Mr Dyer should one day abandon her owing to the legal impediment to marry while Mrs Dyer was alive, she, Mrs Aldrich, would still have an opportunity to return to her husband with the child. With this pleading, Mr Aldrich did not proceed with the divorce. At no time thereafter did he take any action to obtain damages against his rival whether in a divorce proceeding or in tort in an action for enticement.
(d) Mrs Aldrich goes to Ceylon with Mr Dyer Infant child Nine is taken with them. - On a date during the winter of 1930-1931, Mr Dyer, Mrs Aldrich and Nina left England for Ceylon. Mrs Aldrich returned to England with Nina on a visit in either 1933 or 1934, probably in 1934. She used to write her husband while she was in Ceylon and she informed him of her forthcoming visit. She stayed in London at a hotel. Mr Aldrich met her about twice and sexual intercourse took place between them. Nina who was then about 3½ to 4 years old was presented with a doll by Mr Aldrich. A Ceylonese nursemaid accompanied Mrs Aldrich from Ceylon. Nina was left in England to attend boarding school. She was put under the care of Mr and Mrs Blyth. When war broke out in 1939, Nina was sent to South Africa to continue her schooling. While Nina lived with the Blyths, Mr Aldrich was not allowed to visit her as it was thought that it was not in her best interest. But Mr Aldrich kept abreast with her progress through reports received from Mr and Mrs Blyth.
Mr Aldrich did not pay for the education of Nina; he did not supply her with any of her needs. Indeed, throughout the childhood of Nina, she accepted Mr Dyer has her father. As far as Nina was concerned, if she was taught the stanza of Margaret Courtney entitled “Be Kind”, which I shall repeat for the purposes of the record, it did not apply to Mr Aldrich:
‘Be kind to thy father, for when thou wert young,
Who loved thee so fondly as he?
He caught the first accents that fell from thy tongue,
And joined in thy innocent glee’
Perhaps, Mr Aldrich would reply - and this appears to be his stand-by quoting the words of Launcelot: “It is a wise father that knows his child” (Merchant of Venice, Act 2, Sc 2).
(e) Nina grows to be famous - marriage and death - Nina is said to have been very attractive and well educated. She was a capable horse-rider. According to Mr Aldrich, she could have been described as a “Fairy Tale Princess”. She was twice married to men of substance and acquired a considerable fortune through her marriages. Her first marriage was to Baron Heinrich Von Thyssen. By this marriage she acquired Swiss citizenship. A decree of divorce having been pronounced in 1956, she married Sadruddin son of Aga Khan in 1957. This marriage also ended in divorce but she retained her Swiss citizenship. Nina died in France on 3 July 1965 intestate while still retaining her Swiss citizenship and domicile.
Legal arguments and submissions
The submissions put forward by Mr DaCosta with his usual force and clarity ranged over a wide area. Those propounded by Dr Rattray were marked with vigour and eloquence. I hope they will forgive me if I should attempt to reduce to simplicity and to put in my own words what I understand the contention of each of them to be. When the main arguments were being put forward - and they covered a five day period - I was regarded as being an English judge sitting in the Strand to decide the question whether, on the facts, Nina was a legitimate or illegitimate child. Alternatively, I was required to remit the facts to England, place them before an English judge and await his decision on them. This was and is necessary, whatever course is adopted, since, as I have already pointed out, the “love affair” between Mrs Aldrich and Mr Dyer, the pregnancy of Mrs Aldrich and the birth of Nina all took place in England between 1929 and 1930. None of those facts has any connection with Jamaica. No Jamaican is involved in the eternal triangle. I believe that to arrive at a satisfactory conclusion on the facts with the help of the law, will require a feat of mental gymnastics. Some judges are not very sure about this doctrine of “remission and transmission” of certain facts to a foreign court when a case comes up before them with a touch of private international law. I may be one of them. To ask a judge to worship at the shrine of renvoi may be as tricky an invitation as when Socrates was asked by a friend to worship at the temple of the sea-god.
Mr DaCosta’s submissions may be summarised as follows.
(i) The Swiss court has declared that Mr Aldrich is the legitimate father of Nina. This declaration is by a competent court which was dealing with an administration action touching the assets of a citizen of Switzerland. The declaration, in so far as it touches the status of Nina, is binding and should be recognized by the Jamaican court.
(ii) If the question of the paternity of Nina should be re-opened in Jamaica, then one of two presumptions would apply to the facts. They are as follows:
(a) When a child is born of a married woman and it is proved that her husband had access to her, it is presumed that that child is legitimate. The presumption may only be rebutted by those who argue to the contrary by proof beyond reasonable doubt that the child is illegitimate.
(b) The child being presumed to be legitimate those who contest the status must bring proof on a balance of probabilities that the child is illegitimate.
(iii) The only evidence in the case touching the issue of legitimacy is from Mr Aldrich himself. If his evidence is accepted, then he is bound to succeed. If this evidence is rejected he still must succeed since the Attorney-General has not produced any evidence to prove that Nina was not a legitimate child.
Dr Rattray’s submissions may be thus summarised:
(i) When Nina was born in England in 1930, Mr and Mrs Aldrich were domiciled in England. Nina’s domicile of origin was English. A judgment in rem by a competent court binds the world. And a judgment touching the status of a person is a judgment in rem.
(ii) A judgment touching the status of a person may only be internationally recognized if the adjudicating court is that of the country of that person’s domicile of origin. Since Nina’s status was not declared by an English court, the court in Jamaica should not recognize the declaration by the Swiss court because it was not competent in an international sense to make any such adjudication.
(iii) In any event, the declaration in Switzerland was made in proceedings inter partes. But a judgment in proceedings between private parties only binds those parties and their privies.
(iv) On the facts, there is evidence of a strong and satisfactory nature to rebut the presumption that Nina, having been born during wedlock, was legitimate. The evidence of a strong and satisfactory nature is pointed out as follows:
(a) That after Mrs Aldrich left the home in June 1929, Mr Aldrich tried to make her pregnant. And if Mrs Aldrich was pregnant at the time she left her husband in order that she might find more comfort with Mr Dyer, it would have been unlikely that Mr Aldrich was responsible for the pregnancy.
(b) The subsequent conduct of Mr Aldrich and Mr Dyer after Mrs Aldrich left her husband on the second occasion indicated that it was more likely that Mr Dyer was the father of the child Mrs Aldrich was then bearing.
(c) When Mrs Aldrich went into the nursing home to be confined, Mr Aldrich did not visit her there although he displayed ingenuity in meeting her during pregnancy.
(d) In the nursing home, Mrs Aldrich was registered as Mrs Dyer.
(e) The child Nina was registered as that of Mr and Mrs Dyer and Mr Dyer was the informant when the infant was being registered.
(f) There was a wholesale neglect of Nina by Mr Aldrich throughout her life, and this is conduct wholly inconsistent with that of a father.
In winding up his examination of the facts, Dr Rattray made certain comments I shall record some of them. He said among other things:
(1) ‘The motive for bringing this action should be considered as an element in assessing the credibility of Aldrich. Where there is a lifetime of total and complete neglect of a child by a father and the claim of paternity is being asserted by the father for the purpose of a claim touching the assets of that child, the court must necessarily consider this factor in assessing the credibility of the claimant.’
(2) ‘This case is brought on the background in which Mr Aldrich has already inherited over half a million pounds of the estate in Switzerland and through the Swiss court.’
(3) ‘The assertions of Aldrich that he is the father of Nina are not supported by the external evidence. There is not a tittle of evidence to support that of Aldrich - on the background of his evidence - that he is the father.’
Mr DaCosta in his reply contended that Dr Rattray’s legal argument concerning the competency of the Swiss court to pronounce on the legitimacy of Nina is ingenious but fallacious, that there has been a confusion between choice of jurisdiction and choice of law. And passing on to the question of motive for asserting paternity, he said this:
‘If Mr Aldrich is the father, then he can assert his paternity and his motive for so doing is irrelevant. This is a complex human problem and Nina’s tragedy was that she received no love from anywhere.’
I entirely agree with Mr DaCosta that this is a human problem that I have before me. I regard it as an example of human action in action. There is nothing called perfection in human conduct. For one to go around with a view to discovering some perfection anywhere would be as useless an expedition as if he were trying to find a dodo.
The submissions of Dr Rattray in relation to the judgment of the Swiss court find their base on a proposition which is to be found in the leading text-books on private international law and in certain dicta in some decided cases. For example, in Cheshire’s Private International Law, 8th edn, pp 636, 637, the following statements appear:
‘The jurisdictional elements that must exist before a foreign judgment in rem can claim recognition in England are not difficult to specify, but it is first necessary to appreciate the correct meaning of this species of judgment.’
The learned author then refers to the words of Evershed LJ, (as he then was) in Lazarus–Barlow v Regent Estates, Ltd ( 2 All ER 118,  2 KB 465, (1949), LJR 1539, 65 TLR 412, 93 Sol Jo 512) ( 2 All ER at p 122):
‘The term ‘judgment in rem’ ... has been defined ... as meaning ‘... the judgment of a court of competent jurisdiction determining the status of a person or thing (as distinct from the particular interest in it of a party to the litigation)’. Such a judgment is conclusive evidence for and against all persons whether parties, privies or strangers of the matter actually decided.’
And at p 637 of the same work the following passage appears.
‘A foreign judgment which purports to operate in rem will not attract extraterritorial recognition unless it has been given by a court internationally competent in this respect.’
And with reference to the dicta in the cases which support the proposition that it is the court of a person’s origin which is competent to pronounce on his status, that is, his legitimacy, or illegitimacy, Dr Rattray relied on the language of James and Cotton L JJ, in Re Goodman’s Trusts, ([1881-1885] All ER Rep 1138, (1881), 17 ChD 266, 50 LJ Ch 425, 44 LT 527, 29 WR 586). This is what Cotton LJ, said ([1881-5] All ER Rep at p 1152):
‘If, as in my opinion is the case, the question whether a person is legitimate depends on the law of the place where his parents were domiciled at his birth, that is, by his domicil or origin, I cannot understand on what principle, if he is by that law legitimate, he is not legitimate everywhere, and I am of the opinion that if a child is legitimate by the law of the country where at the time of his birth its parents were domiciled, the law of England, except in the case of succession to real estate in England, recognises and acts on the status thus declared by the law of the domicil.’
And at p 1154, James LJ, said:
‘According to that law as recognised, and that equity as practised in all other civilised communities, the status of a person, his legitimacy or illegitimacy, is to be determined every where by the law of the country of his origin - the law under which he was born.’
Twenty-four years earlier, Kindersley V-C, had spoken in the same vein, in Re Don’s Estate ((1857), 4 Drew 194, 27 LJ Ch 98, 3 Jur NS 1192, 5 WR 836) ((1857), 4 Drew at p 197):
‘It appears to me that on the authorities applicable to this question the principle is this, that the legitimacy or illegitimacy of any individual is to be determined by the law of that country which is the country of his origin. If he is legitimate in his own country then, all other civilized countries, at least all Christian countries, recognize him as legitimate everywhere.’
James and Cotton L JJ, were in the majority decision in Re Goodman’s Trusts ([1881-1885] All ER Rep 1138, (1881), 17 ChD 266, 50 LJ Ch 425, 44 LT 527, 29 WR 586) which reversed the judgment of Jessel MR. In that case, the question of the right of a relative of a testatrix to an interest in a lapsed share under her will arose for consideration. The testatrix had a brother who left England with the intention of permanently residing in Holland. In Holland a daughter was born out of wedlock as a result of his association with one Charlotte Smith. After the birth of this child (their fourth), he married charlotte in Holland. By the marriage this fourth child, along with three others born in England, were legitimated according to the law of Holland.
The question, therefore, was this: Could the child born in Holland and legitimated in Holland while her parents were domiciled there, claim under the will of an English aunt as next-of-kin? The learned Master of the Rolls said “no” and decided the case on the footing that the word “children” in an English will must be construed to mean children “lawfully begotten” unless an intention appeared to the contrary in the will and no such intention did appear. The realities in that case - as in the one before me - must be faced. In Goodman’s Trust (Re Goodman’s Trusts, [1881-1885] All ER Rep 1138, (1881), 17 ChD 266, 50 LJ Ch 425, 44 LT 527, 29 WR 586) the fourth child who was claiming under her aunt’s will was born in 1821; her father died in 1832. But the aunt did not die until 1878, about 46 years after. The aunt died a spinster and at the date of her death, she had neither father nor mother, brother nor sister; but there were two children of a brother who survived her.
James LJ, hinted in the couse of his judgment that it would be an act of “barbarous insularity” if the English court held that this niece was to be regarded as a bastard in England, when in the country where she was born, she was not.
Suppose Mr Aldrich had obtained in England the declaration which he sought “that Nina Dyer was legitimate”; could the Attorney-General or the Administrator-General maintain the contentions which they have put before me? The answer must be in the negative. If this declaration was obtained, would it have been determined “by the law of that country which is the country of Nina’s origin?”. The answer must be in the affirmative.
Is there a difference between a declaration as to legitimacy obtained in a competent English court by applying English law and a declaration obtained in a competent court of a foreign country by applying the same English law? Even if I were not to use the strong language of James LJ - and use an epithet much more mild - I would say that a strange situation would arise if Mr Aldrich were to be told, and the court should hold, that on the facts it is possible for Nina to be regarded as legitimate for all purposes in Switzerland where she was domiciled at the date of death and of which she was a citizen, but on the same facts and on the same principle, namely, birth during lawful wedlock, in a christian and civilized country - as kindersley V-C, opined - she is to be regarded as a bastard here, where she left some of her property. And a more strange result is yet to come. The universal rule recognized in private international law is that in the case of an intestacy, movable property of the deceased is to be distributed according to the law of the domicil of the intestate at the time of his death. And the law of the domicile at the time of death determines the class of persons to take and the right of representation. See Lynch v Paraguay Provisional
Govt ([1861-1873] All ER Rep 934, (1871), LR 2 P & D 268, 40 LJP 81, 25 LT 164, 19 WR 982). According to the Swiss law, Mr Aldrich is to take the property of Nina “he being considered as the legitimate father of the deceased”.
In so far as the movable property of the deceased in Jamaica is concerned, therefore, that is $1,000, Mr Aldrich must be admitted to claim his interest he being the legitimate father of Nina and the judgment of the Swiss court may be recognized to that extent. But in so far as the immovable property, ie real estate to the extent of $100,000, is concerned, Mr Aldrich may not be regarded as the legitimate father and any such part of the Swiss judgment which says he is, should be ignored.
If an argument is put forward which would lead to such strange results then something must be wrong somewhere. I shall show in due course where the fault in the argument of Dr Rattray is to be found. A judgment of a court of a foreign country has no direct operation in Jamaica but it may be enforced here by action at common law or under some statute. See, for example, the elaborate provisions of the Judgments (Foreign Reciprocal Enforcement) Law, Cap 184 [J]. After the foreign judgment has been registered, it may be set aside at the instance of the party against whom it is to be enforced, if he can show, among other things, “That the courts of the country of the original court had no jurisdiction in the circumstances of the case.” (See s 6 (1) (ii) of the Law, Cap 184.)
All the passages in Cheshire and in other text books relied on by Dr Rattray are dealing with a situation where a foreign judgment registered in England is sought to be enforced by action. But in this case Mr Aldrich is not seeking by action to enforce any foreign judgment against anyone. He is merely seeking a declaration on the facts which he has presented, and as a step in the proceeding he refers to the Swiss declaration already made in his favour. And I entirely agree with Mr DaCosta in his view that the cases have not decided that the only court which is competent to pronounce on the legitimacy of a person is the court of the country of his origin. The facts in this case show that the submission of Dr Rattray in this could not be accepted.
Mr Aldrich made an attempt to get a declaration from the English court but he was faced with a legal technicality and so he could hot succeed. Mr Aldrich then took the facts of his case to a court in Switzerland. Nina was a citizen of Switzerland, albeit a citizen by marriage, and she died with her domicile of choice there. A competent court, according to Swiss law, pronounced on her legitimacy. Mr Aldrich now comes before a court in Jamaica. Is he to be told that he should go back to England to get his declaration as to the legitimacy of Nina? He has gone to that court already. Is the rule in private international law so strict that on these special facts, the claimant is to be told that the judgment obtained in Switzerland has no relevance here? I do not think so. And I adopt, with respect, the words of Donovan LJ, in Gray v Formosa ( 3 All ER 419,  P 259,  3 WLR 1246) ( 3 WLR at p 1253):
‘But these rules of private international law are made for men and women-not the other way round - and a nice tidy logical perfection can never be achieved. Certainly, elementary considerations of decency and justice ought not to be sacrificed in the attempt to achieve it. If the court here have, as I think they have, a residual discretion in these matters, they can be trusted to do whatever the justice of a particular case may require, if that is at all possible.’
Without spending too much time on this aspect of the matter, I shall refer briefly to the method which the learned judge in Switzerland followed in considering the petition of Mr Aldrich. (An authenticated copy of a true and faithful translation in English of the original judgment delivered in the Italian language forms part of my bundle.)
The learned judge proceeded as follows, in so far as is relevant:
1. He referred to the relevant Swiss Code which gave him jurisdiction “to pronounce on the succession which is in the issue”.
2. That no fewer than eighteen interested persons (including the petitioner Aldrich) had made themselves known.
3. ‘That, however, the judge being under the obligation to see to it that the succession be correctly devolved, it is necessary to examine whether the Petitioner is the right party to the action, that is to say whether he can be considered as the legitimate father of the deceased.”
4. The judge then referred to “some perplexity”, ie to the fact that the deceased was registered in the English Civil Register with the surname Dyer and that the English judge had expressed his own lack of jurisdiction to declare “this petitioner to be the legitimate father of the deceased”. He was, of course, referring to Ormrod J.
5. (a) Touching on the law, the learned judge referred to art 8 of the Federal Law to the effect that in the case of the civil status of persons resident and domiciled, the legitimate descent is subject to the legislation and jurisdiction of the place of origin. “This latter, in fact, being that of the father.”
(b) He then cited authority to support this proposition: “The Swiss Judge called upon to decide in a succession case his jurisdiction to decide also on the preliminary question concerning the legitimate descent of the deceased by the application of the national law of the father.”
(c) He then referred to the fact that a valid marriage between Mr Aldrich and his wife had been proved.
(d) He next examined the circumstances when Mrs Elsie Aldrich (nee Rogers) abandoned the petitioner in 1929 “in order to cohabit with a certain Stanley Dyer and remaining with him until his death which occurred in 1945”.
6. The learned judge carefully applied the English law, ie presumption of legitimacy, and cited the latin maxim pater est quem nuptiae demonstrant (he is the father whom the marriage shows). He held that, “the presumption was not destroyed by the results of the case”.
7. Lastly he mentioned that other legitimate heirs, according to Swiss law, supported the prayer of the petitioner. He accordingly granted the declaration. With respect, it seems to me that the reasoning of the learned judge is impeccable. His logical steps, which he outlined before he came to his conclusion are admirable; the legal principles which he applied to the facts are, in my view, very sound. Indeed, he applied the very rule which Dr Rattray contends is applicable, namely, the law of the country of origin of a person determines his legitimacy or illegitimacy. And when it comes to the facts, the learned judge placed himself briefly on the English bench, he applied the English presumption of legitimacy, he then made his decision and “returned” to Switzerland with a declaration in favour of Mr Aldrich.
Mr DaCosta has argued that since the decision of the Swiss court is a judgment in rem affecting Nina’s status and given by a competent court of the country in which she was domiciled at the time of her death, that decision is binding on all the world. And he has relied on Salvesen v Austrian Property Administrator ( All ER Rep 78,  AC 641, 96 LJPC 105, 137 LT 571, 43 TLR 609). In that case, S, a British subject and domiciled in Scotland went through a form of marriage in France with an Austrian subject. The parties then settled in Germany where they lived as man and wife. The Austrian husband served in the
Austrian Army while S lived in Switzerland. Later both S and the husband resumed living in Germany for about four years. At the end of this period, the Administrator of Austrian Property claimed the movable property of S in Scotland on the ground that she became an Austrian national by her marriage in France. The claim was based on the Treaty of Peace (Austria) Order 1920. S resisted the claim on the ground that her marriage in France was null and void because certain formalities required by French law were not observed before the marriage took place. A court in Germany declared the marriage null and void. The question for determination was whether the decree of the German court was binding on the Scottish Court, so as to prevent the Administrator from arguing that the French marriage was valid. The judge of first instance decided the question in favour of S. On appeal, his judgment was reversed by a majority and the case was taken to the House of Lords. The House of Lords unanimously reversed the decision of the Appeal Court (First Division) and restored that of the first instance judge. I understand the rationale of the decision to be as follows. For the purpose of pronouncing upon the status of parties as well as for the purpose of affecting that status, once a competent court of the domicile of the parties has made a pronouncement thereon, the decision is binding and an English court will not review that decision. And once it is shown that no substantial injustice, according to the English notions, has been comitted, the foreign judgment will be recognized. It is true that in Salvesen’s case (Salvesen v Austrian Property Administrator,  All ER Rep 78,  AC 641, 96 LJPC 105, 137 LT 571, 43 TLR 609) the court was dealing with the validity of a marriage.
As far as I know, the notions of justice and convenience as observed by the English courts in the field of Private International Law accord with our own. If, therefore, a competent foreign court having given a fair hearing to all interested parties and having applied the correct principles of law, as is shown in this case, pronounces on the legitimacy of one of its citizens, such a pronouncement will be recognized here. And it matters not that the declaration touches a preliminary issue in the case or is one of several issues which the foreign court had to determine. And even if I am wrong in so holding, that would not be the end of the matter. Despite the conclusion of the Swiss judge on the facts, I shall embark on an examination of them on my own. Mr Aldrich is bound to succeed if the facts on which he relies are accepted. In the alternative even if the facts are not accepted in their entirety, he is still entitled to succeed if the Attorney-General is unable to produce evidence or to point out in the evidence before me such facts of a strong, distinct and satisfactory nature which show, at least on a balance of probabilities, that Nina was a bastard, ie was the daughter of the wife of the claimant Mr Aldrich by Mr Dyer.
Since the facts before me have not been challenged, the intervening parties, namely the Attorney General and the Administrator General must be taken to have accepted their truth. Their stand can be put in the form of a short dialogue between the Attorney-General and Mr Aldrich.
A-G ‘Mr A is that all?’
Mr A: ‘Yes, and do you have any evidence to show that what I have said is not true?’
A-G ‘No - I have none but your case does not show that Nina was your daughter?’
Mr A ‘Why not? It is a human story you know and you must remember that my wife and I used to see each other even after even after she left me.’
There is a presumption which operates in favour of Mr Aldrich when the facts are being examined. And it may be stated in this form: There is a presumption of legitimacy arising from the birth of a child during wedlock where it is shown
that wife and husband had opportunity of access to each other during the period in which a child could be begotten and born in the course of nature and where it has not been proved that the husband was impotent. To put it in another form; If a married man has access to his wife at all material times and he is not impotent, then it is presumed that if she becomes pregnant he is responsible and is the father of any child she may deliver. Any person who wishes to repel the presumption can only succeed if he produces evidence of a satisfactory nature to persuade the tribunal which has to decide the issue, that sexual intercourse did not take place at any time when be such intercourse the husband could, according to the laws of nature, be the father of the child. And this presumption operates in the interest of morals and of an orderly society.
The potency of Mr Aldrich at the relevant time is not in issue. During the cross-examination, he told Dr Rattray that he fathered a daughter, Sally Ann, who was born in 6 November 1936. Nina was then six years old and Mrs Aldrich was then living in Ceylon. The mother of Sally Ann is now the second Mrs Aldrich.
I do not think it is necessary to examine all the authorities which deal with the presumption of legitimacy. When Mrs Morris, wife of a surgeon, ran away with a male servant and subsequently gave birth to a male child while living in “undisguised adultery” with him, the question arose for decision some years after, whether her son was legitimate. Special facts proved in that cause persuaded the House of Lords to say that the son was not legitimate (Morris v Davies ([1835-1842] All ER Rep 270, (1837), 5 Cl & Fin 163, 1 Jur 911)).
Some of the special facts which I have detected in the case are as follows. Mrs Morris and her husband separated in 1788 and she went to live with WA a male servant. In 1793, five years after, she was delivered of a male child. WA took the child to his parents who brought him up under the surname of WA The birth of the child was carefully concealed by Mrs Morris and she denied to her husband that any child had been born to her. She took an “oath” to substantiate her denial. Between 1792 and 1793, Mr and Mrs Morris were living about 15 miles apart and evidence was given, which the jury discredited, that twice during the year 1792, Mr and Mrs Morris were seen together dining on one occasion and being found in the same house on another.
It is clear, therefore, that since the evidence of the access of the husband to the wife was discredited, there was no sufficient material in the case on which the presumption could operate. The conduct of both parties Mrs Morris and WA was consistent with the view that the child born in 1793 was not lawfully begotten.
In another case, Cotton v Cotton ( 2 All ER 105,  P 305,  2 WLR 947), a wife left her husband in May 1951 and returned in June 1951. Three days after, she again left him. In December 1951, the husband presented a petition for divorce on the ground that his wife had committed adultery with one H at whose house the wife went to live in June 1951. The wife gave birth to a child on 22 December 1951, and the husband said it was not his because although he and his wife slept in the same bed until they parted in May/June 1951, he did not have any sexual intercourse with his wife and that he in fact had no intercourse with his wife after 29 January 1951. The learned judge who tried the issue expressed sympathy with the husband and said he would have decided the issue of paternity in the husband’s favour but for the presumption of legitimacy which, on the facts, was not displaced. The disappointed husband was caught by the rule that if wife and husband sleep together or have access to each other during all material times then sexual intercourse is presumed to have taken place. And if the wife is found to be pregnant thereafter he is presumed to be the father of the child the wife is bearing.
The claimant Aldrich filed his proceeding in March 1971. On the basis that I am notionally in the Strand in England - sitting on a comfortable chair-in
considering the facts, I will have to note that there has been a change in the law dealing with the presumption of legitimacy. This change became effective on 1 January 1970. The Family Law Reform Act 1969 [UK] s 26 provides as follows:
‘Any presumption of law as to the legitimacy or illegitimacy of any person may in any civil proceedings be rebutted by evidence which shows that it is more probable than not that that person is illegitimate or legitimate, as the case may be, and it shall not be necessary to prove that fact beyond reasonable doubt in order to rebut the presumption.’
Mr Aldrich, who during cross-examination displayed signs of resilience, physical strength and preparedness which are remarkable for a septuagenarian, gave this answer to Dr Rattray:
Q: ‘In the light of the birth certificate, death certificate, family certificate, support of the child by Dyer, your wife going to live with Dyer from 1929 and their living together until Dyer’s death in 1945, do you still maintain that Nina was your child?’
I shall refer to an example of the operation of the standard of proof beyond reasonable doubt and on a balance of probabilities. The facts of the case (Watson v Watson ( 2 All ER 1013,  P 48,  3 WLR 708)) are these. In 1937 Mr and Mrs W were married. A child was born in 1939. Mr W joined the armed forces during the war and between disembarkation leave in June 1945 and March 1946, he spent several weekend leaves with Mrs W Mrs W gave birth to a child on 11 December 1946, and Mr W denied the paternity. While Mr W was on war service, a man named B became a lodger at the house of Mrs W and a love affair started between B and Mrs W When the husband was discharged from the forces, he found B living at the house as a lodger. In 1947, trouble started between W and his wife. They separated. Before the separation B came in one evening to find Mr W being quite affectionate to Mrs W and B was annoyed. B used words to suggest that the child born in December 1946, was his and not that of Mr W The next day Mrs W in the presence of Mr W and B told the husband: “Yes, and this child on my lap is not yours either.”
In 1950, Mr W obtained a divorce on the ground of the wife’s adultery with B but shortly after the decree, Mrs W took out a summons claiming maintenance for herself and the child V born in 1946. The husband contested the application. Mr W swore that between June 1945, and 5 March 1946, he had intercourse with his wife but he used contraceptives. On the issue, the learned trial judge (Barnard J) would have decided in favour of the husband if he had to apply the standard of proof on a balance of probabilities. But as the law then stood, by applying the standard of proof beyond all reasonable doubt, he decided in favour of the wife. The effect of the decision was to hold that the child was legitimate in the face of the unchallenged evidence that at all material times, B was having intercourse with Mrs W while he was a lodger at the house.
My task therefore, is to decide whether on a balance of probabilities, the facts show that Nina was not legitimate. And my answer is given without any hesitation. To put it at its lowest, I am satisfied that on a balance of probabilities it has not been shown that Nina was a bastard. It means, therefore, that the presumption of legitimacy has not been repelled and she must, therefore, as is the position is Switzerland, be held to have been legitimate.
What has been related to me is the same old story. A wealthy man allures a young and attractive wife of a younger man who is unable to give her the comfort and luxury for which she yearns. But during the initial stages of the romance and for a reasonable time thereafter she still showers love and affection on her
husband while he is prepared to put up with the situation. They meet secretly and she behaves just as if nothing has happened. She still reclines in the husband’s arms and submits readily to his advances. During these periods the young husband puts out everything, physically or otherwise, in order to bring her back into his fold. But the allurement of a better life elsewhere where the older man has established himself from the immediate reach of his wife is too much. The young wife stays away and eventually follows her wealthy lover to another part of the globe. In every move and so as to keep inquisitive tongues silent and to add an air of respectability and acceptance to the association - she and her elderly lover pose as man and wife and she produces the baby of her real husband as the product of the union between herself and her lover. But that the baby is not that of her lover, is a secret kept between herself and her real husband. Mrs Aldrich may not have displayed the initial obstinancy and craft of a Penelope nor the constancy and fidelity of a Calpurnia. But within her breast she still had that tender passion for her husband and she nursed this feeling even after she left England for Ceylon. She informed her husband of her forthcoming visit to England in 1934 and entertained him in the style and fashion of a wife when they met at her hotel in London. It is said that women have more heart and more imagination than men.
The evidence is clear that Mr Aldrich did not support his daughter, he did not pay for anything necessary for her upbringing. Another man may have reacted to the situation differently but it does not follow that because A would not have behaved as B under the same circumstances, A’s story cannot be believed and that no credit should be given for what he has disclosed and for the motive which appeared to have influenced his conduct. Thre is an old English proverb which states: “We may give advice, but we cannot give conduct”. Whether the facts in this case lend support to the truth of that proverb, I am not, at present, prepared to express an opinion.
Mr Aldrich is entitled to the declaration which he seeks. Private International law has its perplexities. What the courts of one country may accept or recognize on a given set of facts may have a different result in the court of another country. Serious attempts have been made, particularly since the end of World War 2, to have some unification in certain areas where a conflict had previously existed.
In the world of today where there is so much movement of people from one country to another, any attempt to have as much unification as possible in the rules of Private International Law should be encouraged. Jamaica should be in the vanguard of those countries seeking some order, agreement and lessening of conflict in the field of Private International Law.
I shall now summarize the reasons which make me conclude that the claimant is entitled to the declaration in the amended notice of motion. They are as follows:
(i) Nina was declared to be legitimate by a competent Court in Switzerland of which she was a citizen and where she was domiciled when she died on 3 July 1965.
(ii) The learned judge in Switzerland applied the law of her domicil of origin, ie English law, in examining the facts and before he declared that she was legitimate. The judgment should, therefore, be recognized here.
(iii) It would be unwise for a court in Jamaica by its decision to say, in effect, that in the circumstances, Nina may be regarded as legitimate in Switzerland but a bastard here.
(iv) It would be unwise for the court to say in effect that in so far as the movable portion of the property in Jamaica of the deceased is concerned she may be regarded as legitimate and to this extent the Swiss declaration
is good but in so far as the immovable property, ie the real estate is concerned, she is to be regarded as a bastard and to this extent the Swiss declaration is bad.
(v) On the facts, the presumption of legitimacy of Nina attaches itself. If the presumption is to be repelled by proof beyond reasonable doubt, I hold that the Attorney-General and the Administrator-General have failed in their attempt to do so. On the other hand, if their attempt would meet with success if I apply the standard of proof on “balance of probabilities”, again I find that they have failed.
(vi) I have already made the point in (iv) above but I should, with respect record and adopt the words of Lord Brougham in Birthwhistle v Vardill ((1835), 2 Cl & Fin 571, 6 ER 1270) ((1835) 2 Cl & Fin at p 595):
‘That a man may be a bastard in one country and legitimate in another seems of itself a strong position to affirm; but more staggering is it when it is followed up by this other, that in one and the same country he is to be regarded as a bastard when he comes into one court to claim an estate in land, and legitimate when he resorts to another to obtain personal succession.’
(vii) Private International Law is not the same in all countries. Several attempts have been made over the past 25 years to unify certain rules. Jamaica should do nothing unreasonably to cause a conflict in an attempt to solve conflicts.
This case, as I have said earlier, has raised some interesting points in the field of Private International Law. A visitor to our shores is interested to know what our law is if he should own real estate and personal estate here and should subsequently return to his country or to the country of his domicil where he is regarded as of legitimate extraction. What would the court of Jamaica decide in relation to his property here if he should die abroad intestate or if he should die partly testate and partly intestate? I hope, with the help of the able arguments of Mr DaCosta and Dr Rattray, some light has been given where uncertainty or darkness existed before.
The Attorney-General and the Administrator-General are entitled to their costs out of the estate and I order accordingly.
(1972) 19 WIR 120
Ramnarine And Ramnarine v Richards
COURT OF APPEAL OF TRINIDAD AND TOBAGO
DE LA BASTIDE AND GEORGES JJ A
3 JUNE 1971
Criminal Law – Accused remains silent when charged after caution – Before caution accused denied knowledge of crime – Malicious damage to Property – Trial before magistrate – Evidence by accused – Defence alibi – When judicial comment on silence of accused justified.
BD reported to the police that the appellants had maliciously damaged a quantity of fruit and vegetable produce growing in his garden. when interviewed by the police both men said they knew nothing of the report nor about the damage to BD’s crops. They were arrested and cautioned but both remained silent. At the trial before a magistrate both gave evidence and said that at the relevant time they were elsewhere. They were convicted. In his memorandum of reasons for decision the magistrate said the appellants brought no witnesses to
support their alibi nor did they disclose the alibi to the police officer when interviewed by him. On appeal it was submitted that by his statement the magistrate indicated that in evaluating the alibi he had considered irrelevant factors.
Held: that the magistrate’s statement in his reasons for decision did not show that he was treating their silence as evidence against them or as confirmatory of the prosecution case, but indicated that he was evaluating the weight of evidence to be given to their alibi.
Cases referred to
David v Watkins (1966), 11 WIR 37
R v Davis (1959), 43 Cr App Rep 215, 103 JP 922
R v Littleboy , 2 KB 408, 103 LJKB 657, 151 LT 570, 98 JP 355, 32 LGR 345, 24 Cr App Rep 192
Appeal against an order of conviction by a magistrate for the offence of malicious damage to property.
R Barnwell for the appellants
R Crawford Senior Crown Counsel for the respondent
GEORGES JA delivered the judgment of the court: The appellants in this case were charged with maliciously damaging a quantity of fruit and vegetable produce growing in a garden belonging to Bridgelal Deokaran. The principal witness for the prosecution was Deokaran himself who testified that he saw the appellants in his garden chopping up his plantation, that he identified them from a distance of approximately 300 feet and that he ran after them but did not catch them as they ran towards their home. In cross-examination he stated that he did not wish to go into their house but merely called out to them. He reported the matter to the police station and Sgt Peter Richards after interviewing the defendants arrested and cautioned them. They both elected to remain silent. In the course of the interview they had said that they knew nothing of the report and they knew nothing of the damage to the crops of Bridgelal Deokaran. Both appellants gave evidence and said that at the relevant time they must have been parked in a truck near Rampersadsingh’s Hardware at Marabella.
In his reasons the learned magistrate quite clearly accepted the evidence of identification given by Deokaran as he was entitled to do. He pointed out that Deokaran had known both appellants; that he had noticed both had run to their house and that the incident had happened in broad daylight so that the opportunity for identification was adequate. He then went on to state:
‘The appellants had brought no witnesses in support of their alibi nor did they indicate such alibi to the respondent when he told them of the report against them.’
The bulk of the argument attacking the judgment hinges on the statement, “...nor did they indicate such alibi to the respondent when he had told them of the report against them”.
Mr Barnwell points out that Sgt Peter Richards in cautioning the appellants had told them they were not obliged to say anything unless they wished to do so and therefore silence on their part should not in any way be held against them. The magistrate had misdirected himself in making this comment. It indicated that in evaluating the alibi he had taken into consideration factors which he ought not to have considered. In support of this proposition he quoted from the case of David and Watkins v R ((1966), 11 WIR 37), a judgment of this court in which the following statement appears:
‘In examining the cases on this point we think the principle which emerges and which invariably must be applied in determining whether a judge’s comment exceeds the bounds of propriety is as stated by Humphreys J, in R v Gerard (2) ((1948), 32 Cr App Rep 132 at p 134). He said:
‘It could be a misdirection only if it was an invitation to the jury to form an adverse opinion against the applicant because he did not then give an explanation...’’.
The court then went on to quote from a direction taken from the case of R v Davis ((1959), 43 Cr App Rep 215, 103 JP 922) in which the trial judge said:
‘Members of the jury, a man is not obliged to say anything, but you are entitled to use your common sense. If Davis was in the position that he now would have you believe he was in ... would he say to the police ‘I am saying nothing’? Can you imagine an innocent man who had behaved like that not saying something to the police in the course of the evening or the next day, or even a little time afterwards? He said nothing’.
The court pointed out in this case the conviction was quashed because the comment was thought to have exceeded the bounds of propriety. The authorities make it clear that failure by an accused to give his story when cautioned can be the subject of legitimate comments. In R v Littleboy (, 2 KB 408, 103 LJKB 657, 151 LT 570, 98 JP 355, 32 LGR 345, 24 Cr App Rep 192) the Lord Chief Justice stated the position as follows ((1934), 24 Cr App Rep at p 198):
‘We have very carefully considered the whole matter and the various cases to which our attention has been directed and we do not think that what was said in the summing-up amounted to a misdirection. No doubt observations upon the failure to disclose a defence at some date earlier than the trial have to be made with care and with fairness to the accused person in all the circumstances of the case, but we do not assent to the general proposition that in no circumstances may comment be made upon the failure to disclose the defence in the police court. The observations of the court in Naylor [ 1 KB 685] (supra) were never intended to go to that length. There is a great difference between making the comment that silence on the part of the prisoner is unfortunate and a matter to be regarded with reference to the weight of the defence, when the defence of alibi is raised, and saying that the fact that the prisoner was silent may be treated as evidence against him or as corroborating the evidence of an accomplice.’
I think this statement puts the situation in a nutshell. What the learned magistrate was doing in this case was not treating the appellants’ silence as evidence against them or as confirmatory in any sense of the case put forward by the prosecution. He had already dealt with the case for the prosecution. He had stated succinctly his reasons for accepting it. His comment therefore seemed to have been directed towards the evaluation of the alibi as put forward by the appellants and it would appear from the statement in the case of R v Littleboy (, 2 KB 408, 103 LJKB 657, 151 LT 570, 98 JP 355, 32 LGR 345, 24 Cr App Rep 192) that such comment is legitimate when made with reference to the weight of the defence. It would appear to us that in this case the magistrate did no more than this.
Mr Barnwell has pointed out that in fact the appellants had put forward an alibi in that they had said that they knew nothing of the damage to Deokaran’s garden but quite clearly when the magistrate referred to the term “alibi” in his reasons he was referring not merely to denial of having committed the offence from which must follow the inference that the appellants must have been elsewhere at the time when the offence was supposed to have been committed. He was referring to a positive assertion with details that the appellants were elsewhere. It is in that sense that he used the word “alibi” rather than in the more technical sense to which it has been referred to in the passage quoted to us from Cross on Evidence.
The comment made by the learned magistrate may be said to be unfortunate in that it has led to the length and intricacy of the argument in this which was otherwise a simple case but we do not think that it shows such an improper approach on his part in the evaluation of the evidence as to justify the quashing of this conviction. Accordingly the appeal will be dismissed but there will be no order as to costs.
(1971) 19 WIR 123
Grant v Jack
COURT OF APPEAL OF TRINIDAD AND TOBAGO
PHILLIPS, FRASER AND DE LA BASTIDE JJA
19 JULY 1971
Criminal Law – Possession of a narcotic – Cannabis Sativa – Plea of guilty – Sentence – Imprisonment with hard labour.
Peremptory imprisonment statutorily prescribed – Whether mandatory – Whether subject to minimum penalty provisions in Interpretation Act.
Omission in Statute – Mistake or oversight by legal draftsman – Power of court to correct mistake.
Narcotic Control Ordinance 1961 [T], s 4, Interpretation Act 1962 [T], ss 2, 39(2), 34(2), 45(1)(a), Interpretation Ordinance, Cap 1 No 2 [T], s 34(2), Minimum Penalties and Fines (Removal) Ordinance 1941, Statutes Act 1962 [T], s 1, Existing Laws Amendment Order 1962 [T], Liquor Licences Ordinance 1955 [T], s 74, Summary Courts Ordinance, Cap 3 No 4 [T], s 97 (5), Summary Courts (Amendment) Ordinance 1957, s 3.
The appellant pleaded guilty to a charge of possession of marijuana. He had one previous conviction for a minor offence of assault. A magistrate sentenced him to six months’ imprisonment with hard labour. He appealed against the sentence on the ground that it was unduly severe and it was argued that the magistrate was not obliged to impose a mandatory sentence of imprisonment notwithstanding the provisions of s 4(1) of the Narcotic Control Ordinance which provides that:
“...a person who has in his possession any narcotic is guilty of an offence and liable–
(a) upon summary conviction to imprisonment for a term of not less than six months and not more than eighteen months.”
It was submitted that the provisions of s 4(1) of the Ordinance were subject to those relating to minimum penalties contained in s 39(2) of the Interpretation Act although literally it appeared to exclude from its application offences for which minimum or fixed penalties are provided by Ordinances prior to 30 August 1962. Section 39(2) of the Interpretation Act provides:
“Where in any Act or Statutory instrument provision is made for any minimum penalty or fine, or for any fixed penalty or fine, as a punishment for a criminal offence, such Act or Statutory instrument shall have effect as though no such minimum penalty or fine had been provided, or as though the fixed penalty or fine was the maximum penalty or fine, as the case may be.”
Held: (i) that the fact that s 39(2) of the Interpretation Act is on a literal reading not applicable to criminal offences created by Ordinances is due entirely to an oversight or mistake on the part of the draftsman;
(ii) that the oversight or mistake resulted in a deficiency which the court had power to cure and consequently the term “Act” in s 39 (2) of the Interpretation Act should be construed as including an “Ordinance”;
(iii) that the magistrate was not obliged to impose a peremptory term of imprisonment (Elwin v Baptiste (Mag App 678 of 1966 (16 January 1966, unreported).) not followed on the ground that the decision was given per incuriam);
(iv) that, on the footing that the appellant was a first offender, the sentence was unduly severe.
Per curiam: Although the question does not, strictly speaking, arise on this appeal, we have been informed that certain magistrates appear to hold the view that they are bound by the terms of this provision to impose a minimum penalty of six months’ imprisonment in circumstances like the present. Such a view would be in consonance with that expressed by this court in Elwin v Baptiste (Mag App 678 of 1966 (16 January 1966, unreported)). There was no argument in that case and, for the reasons hereinafter expressed, it is considered that that decision was given per incuriam and should not be followed.
Appeal allowed Sentence varied.
Case referred to
Oudit and Rooplal v McKenzie (1969), 14 WIR 488
Elwin v Baptiste Mag App 678 of 1966 (16 January 1966, unreported).
Appeal against sentence on the ground of severity after a plea of guilty in a prosecution for possession of marijuana.
F Williams-Smith for the appellant
I Blackman Crown Counsel for the respondent
PHILLIPS JA delivered the judgment of the court: The appellant was charged indictably before a magistrate with the offence of having in his possession a narcotic, viz cannabis sativa, commonly known as marijuana, contrary to s 4 of the Narcotic Control Ordinance 1961. He elected summary trial, pleaded guilty to the charge and was sentenced to a term of six months’ imprisonment with hard labour. He appealed against the sentence on the ground that it was unduly severe.
Before this court counsel for the applicant sought leave to appeal against the conviction on the ground that it was erroneous in point of law as the magistrate had failed to comply with the provisions of s 5 of the Ordinance. The court refused the application as it was patent that no procedural error had been made by the magistrate. (See Oudit and Rooplal v McKenzie ((1969), 14 WIR 488).)
With regard to the question of sentence the magistrate stated that he took into account the prevalence and gravity of the offence and also the fact that the appellant had one previous conviction. This, however, was for a minor offence of assault and battery, and we are of opinion that it should have had negligible (if any) effect on the magistrate’s decision as to the sentence to be imposed.
We agree with the magistrate’s view that the offence is to be regarded as a serious one. This is borne out by the fact that s 4(1) of the Ordinance provides, inter alia, that, subject to the exceptions contained in sub-s (2),
‘a person who has in his possession any narcotic is guilty of an offence and liable–
(a) upon summary conviction to imprisonment for a term of not less than six months and not more than eighteen months;...’
Although the question does not, strictly speaking, arise on this appeal, we have been informed that certain magistrates appear to hold the view that they are bound by the terms of this provision to impose a minimum penalty of six months’ imprisonment in circumstances like the present. Such a view would be in
consonance with that expressed by this court in Elwin v Baptiste (Mag App 678 of 1966 (16 January 1966, unreported)). There was no argument in that case and, for the reasons hereinafter expressed, it is considered that that decision was given per incuriam and should not be followed.
Section 39(2) of the Interpretation Act 1962 (hereafter called “the Act”) which came into operation on 19 July 1962, provides that:
‘Where in any Act or Statutory instrument provision is made for any minimum penalty or fine, or for any fixed penalty or fine, as a punishment for a criminal offence, such Act or Statutory instrument shall have effect as though no such minimum penalty or fine had been provided, or as though the fixed penalty or fine was the maximum penalty or fine, as the case may be.’
This enactment has replaced s 34(2) of the repealed Interpretation Ordinance, Cap 1 No 2, which provided as follows:
‘Whenever in any Ordinance in force on the 20th of December 1941, or in any rule, regulation or bye-law made under any Ordinance and in force at that date, provision is made for any minimum penalty or fine, or for any fixed penalty or fine, as a punishment for a criminal offence, such Ordinance, rule, regulation or bye-law shall have effect as though no such minimum penalty or fine had been provided, or as though the fixed penalty or fine was the maximum penalty or fine, as the case may be:
Provided that the provisions of this sub-section shall be without prejudice to any penalty or fine imposed before the 20th of December 1941.’
This provision was first introduced by the Minimum Penalties and Fines (Removal) Ordinance 1941. That Ordinance was clearly intended to be of universal application to all criminal offences for which minimum or fixed penalties had been provided.
It is reasonable to expect that on the repeal of s 34(2) of the Interpretation Ordinance and its substitution by s 39(2) of the Act, the intention of the Legislature should remain unchanged, viz to remove the attachment of minimum or fixed penalties to all criminal offences where such a provision is applicable. The literal wording of the new section, however, does not appear to achieve that result, by seemingly excluding from its application offences for which minimum or fixed penalties are provided by Ordinances of the pre-independence legislature.
By s 1 of the Statutes Act 1962, which came into operation on 6 June 1962, it was provided as follows:
‘This Act and all statutes of the Territory passed after the commencement of this Act shall be styled ‘Acts’.’
Section 2 of the Act (as amended by the Existing Laws Amendment Order 1962), so far as material for present purposes, provides:
‘2. For the purposes of this Act,
(a) ‘Act’ means an Act of Parliament, or an Act of a legislature of Trinidad and Tobago passed before 30th August 1962;
(b) ‘enactment’ means an Act or Ordinance or statutory instrument or any provision of an Act or Ordinance or statutory instrument;
(c) ‘instrument’ includes an order in council, order or warrant, scheme, rule, regulation or bye-law, other than an order made or a warrant issued by a court;
(d) ‘Ordinance’ means a statute enacted by the legislature of Trinidad and Tobago before the commencement of the Statute Law [sic] Act, 1962; [6 June 1962]
(e) “statutory instrument” means an instrument made under an Act or an Ordinance.’
Section 45(1)(a) of the Act, as amended by the Existing Laws Amendment Order 1962, is to the following effect:
‘‘Act’ means an Act of Parliament, or an Act of a legislature of Trinidad and Tobago passed before the 30th August 1962; and in any Act other than this Act, ‘Act’ includes an Ordinance.’
The effect of these provisions is to include “Ordinance” in the definition of the term “Act”, except where that term appears in the Act itself, with what, in our view, is the clearly unintended result that the removal of minimum and fixed penalties for criminal offences, introduced in 1941 and sought to be perpetuated by the Act, appears to be rendered nugatory to a substantial extent by the terms of the Act itself.
A good illustration of the utter absurdity of such a situation is to be found by reference to s 74 of the Liquor Licences Ordinance 1955, which is currently in force in this country. The section reads as follows:
‘74. Where a pecuniary penalty is imposed by this Ordinance the Magistrate shall, notwithstanding the provisions of sub-section (2) of section 34 of the Interpretation Ordinance, impose the full penalty in any case for a third or subsequent offence, or for any offence committed by a person who has previously been licensed and whose licence has been cancelled.’
This provision clearly recognizes the continuing operation of s 34(2) of the Interpretation Ordinance and is intended to nullify it in the cases specified.
It seems to us that the circumstances under consideration are precisely of the kind contemplated by the rule of construction which is stated in Maxwell On Interpretation Of Statutes (12th Edn), p 228, in the following words:
‘Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departure from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning. Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman’s unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used. Lord Reid has said that he prefers to see a mistake on the part of the draftsman in doing his revision rather than a deliberate attempt to introduce an irrational rule: ‘the canons of construction are not so rigid as to prevent a realistic solution’.’
We are of the opinion that the fact that s 39(2) of the Act is on a literal reading not applicable to criminal offences created by Ordinances (a category which forms the large majority of all such offences) is due entirely to an oversight or mistake on the part of the draftsman. It is to be observed that the use of the term “enactment” would have been sufficient to cover both terms actually used in the subsection, viz “Act” and “statutory instrument”. In these circumstances, we consider it to be incumbent upon us to cure the patent deficiency in the language of the section by construing the term “Act” as including “Ordinance”, and thus to give effect to the manifest intention of the legislature.
We accordingly hold that s 39(2) of the Act is applicable to the present case, and that the magistrate was not obliged to impose a peremptory term of imprisonment. In the particular circumstances of the case we are of opinion that
the penalty imposed was unduly severe and that the requirements of justice would be met by invoking the power of imposing a fine which the magistrate possessed by virtue of the provisions of s 97(5) of the Summary Courts Ordinance, as amended by s 3 of the Summary Courts (Amendment) Ordinance 1957. This subsection is to the following effect:
‘97. (5) A person summarily convicted of an indictable offence under this section shall be liable to imprisonment for a term not exceeding two years or to a fine not exceeding one thousand dollars: Provided that such person shall not be liable to any greater penalty than the maximum penalty to which he would be liable if he had been convicted on indictment.’
In the result we allow the appeal with costs and set aside the penalty imposed by the learned magistrate. In its stead we substitute a fine of $150 or four months’ imprisonment with hard labour in default.
(1971) 19 WIR 127
Port Authority Of Trinidad And Tobago v Pierre
COURT OF APPEAL OF TRINIDAD AND TOBAGO
FRASER, DE LA BASTIDE AND CORBIN JJ A
1 NOVEMBER 1971
Carriage of goods by sea – Contract of carriage from one local port to another – Motor scooter damaged during carriage – Whether Port Authority liable for breach of contract owing to negligence – Whether contract wholly contained in Receipt for Goods Shipped.
Liability of carrier – Liability of carrier – Whether limited by contract – Statutory liability of owner of sea-going vessel.
Appellant incorporated by statute – Whether liability widened by incorporating Statute.
Carriage of Goods by Sea Ordinance No 6 of 1926, Cap 31 No 7 [T], ss 5, 7 (1); arts 5, 6, 8; Port Services (Dues, Charges and Management) Ordinance, Cap 18 No 2 [T], s 16; Port Authority Ordinance No 39 of 1961 [T], ss 3, 4, 8, 9, 17, 35, 37, 58, 59, 73; Carriage of Goods by Sea Act 1924 [UK].
The respondent owned a Lambretta motor scooter. The appellant operated a ship, the MV “Bird of Paradise”, owned by the Government of Trinidad and Tobago, on the Trinidad/Tobago run. The respondent’s motor scooter was being carried during a voyage to Tobago on 16 January 1965, when it was damaged. At the time the vehicle was delivered for carriage a servant of the appellant gave the respondent a bill of lading described as a Receipt for Goods Shipped, which contained the terms and conditions of a contract of carriage and purported, incorrectly, to be issued subject to the provisions of the Carriage of Goods by Sea Ordinance No 6 of 1926. The appellant, however, was incorporated by the Port Authority Ordinance No 39 of 1961 and its contractual capacity was defined therein. Section 35 of the Ordinance expressly made the appellant liable for acts of negligence of its employees. The trial judge found that the appellant was negligent; and its statement of claim admitted negligence.
The question was whether in the circumstances the appellant’s liability for breach of contract was governed by the provisions of the Carriage of Goods by Sea Ordinance, and the Receipt for Goods Shipped, or by the provisions of the Port Authority Ordinance imposing liability on the appellant for breach of contract owing to negligence.
Held: that the appellant was liable in breach of contract for the damage to the respondent’s vehicle caused by the negligence of the appellant’s servants or agents because:
(i) even though the terms and conditions of the Receipt for Goods Shipped were drafted in accordance with the provisions of art VI of the Carriage of Goods by Sea Ordinance, s 7(1) and art VIII of that Ordinance expressly provided that the Ordinance was subject to any other enactment limiting the liability of owners of seagoing vessels;
(ii) the appellant was incorporated by the Port Authority Ordinance, which by s 4 imposed on it liability to be sued and by s 59 (1) the appellant became the statutory agent of the government of Trinidad and Tobago for the purpose of operating the relevant shipping service; therefore, the action was properly brought against it and not the Government as the disclosed principal;
(iii) as a creature of statute, the appellant’s liability was governed by the Port Authority Ordinance, s 35 of which clearly contemplated liability for loss or damage caused by negligence. Therefore, the terms and conditions of the Receipt for Goods Shipped were invalid except where consistent with the statutory provisions imposing liability on the appellant for breach of contract owing to negligence.
Appeal dismissed with costs. Interest at six per cent per annum on the sum recovered from date of writ to date of judgment below.
Cases referred to
Beaumont-Thomas v Blue Star Line Ltd  3 All ER 127, 55 TLR 852, 83 Sol Jo 497, 8 Digest (Repl) 111, 719
Raleigh v Goshen  1 Ch 73, 67 LJ Ch 59, 77 LT 429, 46 WR 90, 14 TLR 36, 42 Sol Jo 46, 38 Digest (Repl) 58, 318
Bainbridge v Postmaster-General  1 KB 178, 75 LJ KB 366, 94 LT 120, 54 WR 221, 22 TLR 70, 37 Digest (Repl) 216, 1
Roper v Public Works Commissioners  1 KB 45, 84 LJ KB 219, 111 LT 630, 1 Digest (Repl) 754, 2931
Hall v Brooklands Auto Racing Club  All ER (Repl) 208,  1 KB 205, 101 LJ KB 679, 147 LT 404, 48 TLR 546, 36 Digest (Repl) 59, 323
Olley v Marlborough Court Ltd  1 All ER 127,  1 KB 532,  LJR 360, 65 TLR 95, 93 Sol Jo 40, 65 LQR 141
Action: The respondent, Cyril Emmanuel Pierre, started this action by a writ of summons filed on 6 January 1966. In his statement of claim, he prayed for damages for breach of contract and, alternatively, for negligence. The trial proceeded only on the appellant’s contractual liability as a common carrier. On 12 July 1969, judgment was given for the respondent and the appellant appealed.
WJ Alexander QC and JA Davis (instructed by Hamel-Smith & Co) for the appellant
Mrs VO Alcala and Allan Alexander (instructed by ETV Kelly & Co) for the respondent
FRASER JA. The respondent’s Lambretta motor scooter, PG 199, was damaged while being carried in the MV Bird of Paradise, a ship operated by the
appellant, during its voyage from Trinidad to Tobago on 16 January 1965. The judgment appealed against is for the sum of $533.69 awarded to the respondent as damages for breach of contract and which was the cost of repairing the vehicle. The trial judge, Des Iles J, made a finding of fact on the evidence that the appellant was negligent in the performance of the contract of carriage and it is noteworthy to mention that the appellant pleaded, among other things, that if the respondent suffered any loss it was caused by reason of perils of the sea “and/or the act, neglect or default of the appellant’s servants and agents in that they failed to take any adequate precautions to or failed to handle the said cargo efficiently”. Consequently, the positive finding of negligence by the trial judge, being fully justified by the evidence, apart from the appellant’s pleading, cannot be disturbed. The only question to be determined in this appeal therefore, is whether the contract of carriage between the parties was such as exempted the appellant from liability for negligence. No protection from the perils of the sea is available to the appellant in this case for the reason that rough weather in January is a probable event against the effects of which the appellant ought prudently to have guarded itself. Moreover, it is arguable whether this is an event from which the appellant may become exempt from liability having regard to the terms of the relevant legislation. It follows therefore that the result must depend upon the ascertainment of what was the real contract between the parties.
The appellant relied wholly upon the terms and conditions of a document described as a Receipt for Goods Shipped. It is dated 12 January 1965, and purports to be a document issued by the Trinidad and Tobago Government Coastal Service subject to the provisions of Ordinance 6 of 1926 and subject to conditions. The conditions are printed at the back of the document; but on its face are stamped the words “To be shipped on deck at owner’s risk. Carrier not responsible for loss or damage during handling or in transit”. To say the least, it is amazing that such a document was available to be issued by a large and important statutory corporation the constitution and authority of which derives from the Port Authority Ordinance, No 39 of 1961, hereafter referred to as the operative Ordinance. This case discloses a classic example of the inexplicable ineptitude which is sometimes to be seen in the administrative steps relied upon to satisfy the provisions of statutory instruments. The document issued and relied upon by the appellant is one designed to meet the provisions of a law adopted in 1926 although the appellant’s authority and powers are derived solely from a statute enacted in 1961. It is to be hoped that after a decade of delay, appropriate regulations will be made pursuant to s 73 of the operative Ordinance.
Ordinance 6 of 1926 is the Carriage of Goods By Sea Ordinance assented to on 22 April 1926 when there existed a Trinidad and Tobago Government coastal Service. That Ordinance is an exact copy of the Carriage of Goods By Sea Act 1924 [UK] (now repealed by the Carriage of Goods By Sea Act 1971 [UK]) except for minor modifications occasioned by local circumstances. It is a statute which emanated from the recommendations of the International Conference on Maritime Law held at Brussels in October 1922. In the schedule to the Carriage of Goods By Sea Ordinance, rules relating to bills of lading are prescribed in nine articles; and by the conjoint effect of s 5 [Carriage of Goods By Sea Act 1924 [UK], s 4 and art VI of the Rules in the Schedule] of the Ordinance and art 6 in the schedule, instead of the otherwise necessary bill of lading, a contract for the carriage of goods by sea in ships carrying goods from “any port in the Colony to any other port in the Colony” is made effective by the issue of a receipt containing the terms and conditions and which “shall be a non-negotiable document and shall be marked as such”. In r 2 of art 4 provision is made for the several events by which the carrier or the ship may be exempt from responsibility for loss or damage; and by art 6 a carrier is permitted to include in its receipt for goods
shipped, terms and conditions as to its responsibility and liability for the care or diligence of his servants or agents in regard to the loading, handling, storage, carriage, custody, care and discharge of the goods.
Article 5 is not unimportant. It provides for the surrender of rights and immunities, and the increase of responsibilities and liabilities by the carrier. It does not however, allow the carrier to increase the burdens of the shipper. So far as it is relevant it reads as follows:
‘A carrier shall be at liberty to surrender in whole or in part all or any of his rights and immunities or to increase any of his responsibilities and liabilities under the rules contained in any of these Articles, provided such surrender or increase shall be embodied in the bill of lading issued to the shipper.’
Although no clearly comparable provision is made in the operative Ordinance, nevertheless there is impliedly provided the right of the appellant to increase its liability for the loss, misdelivery or detention or of damage to goods caused
(a) by means other than want of reasonable foresight and care on the part of its employees; or
(b) otherwise than while the goods are being carried, stored, or warehoused. The appellant is empowered to assume that wider liability if it is so provided by the operative Ordinance or by any regulations thereunder or by contract. This manifestly appears to be the position from the words of s 35 of the operative Ordinance which reads as follows:
‘35 (1) Subject to the provisions of this Ordinance or of any regulations made thereunder or of any contract, the Authority is not liable for the loss, misdelivery or detention of or damage to goods –
(a) delivered to or in the possession of the Authority, otherwise than for the purposes of carriage, storage or warehousing except where such loss, misdelivery, detention or damage is caused by the want of reasonable foresight and care on the part of any person employed in or for the purposes of the Authority.
(b) accepted by the Authority for carriage, storage or warehousing where such loss, misdelivery, detention or damage occurs otherwise than while the goods are being carried, stored, or warehoused and is not caused by the want of reasonable foresight and care on the part of any person employed in or for the purpose of the Authority.
(2) The Authority is in no case liable for such loss, misdelivery, detention or damage arising from –
(a) act of God;
(b) act of war or of the Queen’s enemies;
(c) arrest or restraint of princes or rules, or seizure under legal process;
(d) act or order of the Government of the West Indies Federation;
(e) act or omission of the consignor, consignee, or depositor, or of the servant or agent of any such person;
(f) fire, flood, hurricane, tempest, earthquake, riot, civil commotion, strike, lock-out, stoppage or restraint of labour from whatever cause, whether partial or general;
(g) inherent liability to wastage in bulk or weight, latent or inherent defect, vice or natural deterioration;
(h) deficiency in the contents of unbroken packages;
(i) insufficient or improper packing or from leakage from defective drums, containers or packages.
(3) Where any loss, misdelivery, detention or damage referred to in subsection (1) occurs in relation to goods accepted by the Authority for carriage, storage or warehousing the limitation contained in section 36 applies.’
As I construe sub-s (1) (a) and (b) of that section it appears that the intention of the legislature was to make the appellant statutorily liable for the loss, misdelivery or detention of or damage–
(a) to goods delivered to or in its possession for the purposes of carriage, storage or warehousing where the loss, misdelivery, detention or damage is caused by the want of reasonable foresight and care on the part of any employee; and
(b) to goods accepted by the appellant for carriage, storage or warehousing where the loss, misdelivery, detention or damage occurs while the goods are being carried, stored or warehoused as a result of want of reasonableforesight and care on the part of any employee.
These provisions clearly contemplate liability for loss or damage caused by negligence. But the introductory words in the section do something else. They contemplate the acceptance of liability for loss or damage by means other than negligence, which is obviously a wider area of liability; but they limit the possibility of such liability arising to three circumstances only:
(i) by provision in the operative Ordinance;
(ii) by provision in any regulations made under the operative Ordinance;
(iii) by provision in any contract made by the appellant.
By this means the legislature imported into the operative Ordinance the concept of the increase of responsibilities and liabilities which is expressed in art 5 of Ordinance 6 of 1926.
The terms and conditions on the receipt relied upon by the appellant were clearly drafted in accordance with the provisions of art 6 in the schedule to Ordinance 6 of 1926. But an important provision in that Ordinance appears to have been overlooked by the appellant since its incorporation in 1961; and certainly by counsel appearing on its behalf at the hearings both at first instance and on appeal. Section 7(1) and also art 8 provide that nothing in the Ordinance shall affect the operation of any other enactment for the time being in force limiting the liability of owners of sea going vessels. In this country the first enactment which limited the liability of the government as a carrier of goods by sea was s 16 of the Port Services (Dues, Charges and Management) Ordinance, Cap 18, No 2. That Ordinance was repealed by the operative Ordinance, subject to the retention of ss 3 to 8 and the bye-laws made under s 22 of which reg 50 is said by counsel for the appellant to be relevant to the contract here. Regulation 50 deals with the limitation of responsibility by government and has to be currently construed in relation to s 35 of the operative Ordinance which is the enactment for the time being in force limiting the liability, not of government, but of the appellant; and for purposes of the relevant legislation, as will shortly be indicated, the appellant must be deemed to be “an owner of a sea going vessel” although the ship in this case is the property of the Government of Trinidad and Tobago.
It is beyond question that the appellant is made statutorily liable by s 35(1)(b) for loss or damage to goods being carried if such loss or damage is caused by the negligence of its employees; by s 37 the person claiming damages is relieved of the burden of proving how the loss or damage to the goods was caused. By s 59(1) the appellant is the statutory agent of the Government of Trinidad and Tobago for the purpose of operating the Government Shipping Service and for this purpose has its liability limited by s 35; by s 17(1)(c) the officers and other employees who are members of the staff of the Coastal Steamers services are made part of the staff of the appellant; by s 4 the appellant is a statutory corporation and may sue and be sued in its corporate name. For these reasons, the submission that the action is wrongly brought against the appellant is patently untenable.
The contractual capacity of the appellant is limited by its incorporating statute and all its rights, immunities, responsibilities and liabilities derive from the provisions of the operative Ordinance. Having regard to the provisions of s 7(1) of the Carriage of Goods By Sea Ordinance (now Cap 31 No 7) and its art 8 when read in conjunction with s 35 of the operative Ordinance, the appellant has no power to make a contract whereby to relieve itself of liability for damage resulting from the negligence of its servants or agents. A contract of carriage made by the appellant can be valid only to the extent to which it conforms with the limitation of liability statutorily prescribed. This is an unavoidable restraint to which persons created by statute are always subject. They do not have the unlimited right of other persons. But for the provisions of s 35 of the operative Ordinance, the appellant may have been able to invoke the provisions as to liability of the Carriage of Goods By Sea Ordinance; however, that is not now possible. Consequently, the appellant’s reliance upon the terms and conditions of the receipt must be controlled by the statutory liability imposed by the operative Ordinance. Accordingly, the appellant might only rely upon such of the terms and conditions on the receipt as conform with the statutory limitation of its liability; such other of the terms and conditions which do not fall within the contemplation of s 35 must be treated as ultra vires.
Insofar as the contract between the parties may be ascertained from the receipt, the appellant’s undertaking to carry the respondent’s vehicle made it an insurer of the safe delivery of the goods and implied a duty to use care and skill. If the vehicle was damaged on the way the appellant is liable if the damage was caused by the negligence of its servants or agents–see dictum of Scott LJ, in Beaumont-Thomas v Blue Star Line, Ltd ( 3 All ER 127, 55 TLR 852, 83 Sol Jo 497, 8 Digest (Repl) 111, 719), [ 3 All ER 127 at p 130]. The trial judge was therefore right in concluding that the appellant was liable in breach of contract for the damage to the respondent’s vehicle caused by the negligence of the appellant’s servants or agents.
I would therefore dismiss this appeal with costs and in affirming the order of the trial judge direct that the appellant pay to the respondent interest at the rate of 6 per cent per annum on the sum of $533.69 from 6 January 1966, the date upon which the writ was filed, to 12 July 1969 when judgment was delivered.
DE LA BASTIDE JA. I have had the opportunity of reading the judgment just delivered and desire to state that I find myself in total agreement with the conclusions therein so clearly stated by my learned brother.
There is little which I think it necessary to add to what has been already stated save with respect to the two submissions made that the appellant cannot be liable because it was acting for a disclosed principal against whom this action should therefore have been brought; and also that the terms and conditions endorsed on the “Receipt for Goods Shipped” delivered to the respondent preclude any liability for damage caused by the negligence of the appellant’s servants or agents.
It is beyond dispute that the appellant is a statutory corporation duly constituted under the provisions of the Port Authority Ordinance 1961 which is hereinafter referred to as “the Ordinance”, and that the appellant was thereunder authorised to act on behalf of the Government of Trinidad and Tobago in respect of the various matters therein set out and which inter alia include the operation of the Government Shipping Service by vessels owned by the said government and engaged in the carriage of passengers and goods between the islands of Trinidad and Tobago (see ss 58 and 59 of the Ordinance).
It is evident from the record that on 16 January 1965 the appellant, through its servants and agents and in the course of its authorised duty as a carrier for reward received at the Port-of-Spain docks the respondent’s Lambretta Motor Scooter PG 199 for carriage from Port-of-Spain to Scarborough, Tobago. He paid the
freight and was handed a document which is commonly called a “Boat Note” or receipt on which certain terms and conditions of the carriage were endorsed.
The scooter was placed in the space reserved for such cargo on the lower deck of the MV Bird of Paradise by the appellant’s servants and/or agents and was “chocked” with pieces of wood to prevent any movement during the voyage. It seems relevant to observe that it was not in any way lashed down although it was well known that the ship which is a comparatively small flat bottomed vessel was likely, especially at that time of the year, to encounter rough or at least quite choppy seas in the channel between Trinidad and Tobago.
Shortly after clearing the First Boca, the MV Bird of Paradise, according to its Master, did encounter fairly rough weather with winds of 30 to 40 mph and seas with waves of six to eight feet in height. He further stated in the course of his evidence in the Court below that:
‘the ship rolled quite a lot and jumped quite a lot–she did everything possible in rolling and jumping. Some of the cargo shifted as a result and I did nothing because the cargo did not cause the ship to list as a result of its shifting. It was not a serious shifting of cargo but there was shifting.’
On the ship’s arrival at Scarborough it was found that the scooter was loose on the ship’s lower deck where all cargo had been stowed and had sustained damage to the extent of $533.96. It was not surprising from the evidence on record that the trial judge made a positive finding of negligence against the appellant stating that he considered the damage to the respondent’s scooter was caused by lack of reasonable foresight and care on the part of the Master and other servants and/or agents of the appellant on 16 January 1965. I consider that the findings of the trial judge were fully justified by the evidence. The appellants disclaimed all liability for such damage on the ground that the receipt or “boat note” as it is sometimes referred to, contained conditions and endorsements which would exempt it from all liability for any damage sustained during the voyage.
In considering the appellant’s first submission already referred to, I am of the view that while it is generally true that the proposition that if an agent acts for a disclosed principal, the principal must be sued, has received the support of various authorities–see Raleigh v Goschen ( 1 Ch 73, 67 LJ Ch 59, 77 LT 429, 46 WR 90, 14 TLR 36, 42 Sol Jo 46, 38 Digest (Repl) 58, 318); Bainbridge v Postmaster General ( 1 KB 178, 75 LJ KB 366, 94 LT 120, 54 WR 221, 22 TLR 70, 37 Digest (Repl) 216, 1); and Roper v Public Works Commissioners ( 1 KB 45, 84 LJ KB 219, 111 LT 630, 1 Digest (Repl) 754, 2931) and also see Halsbury’s Laws (3rd Edn), Vol 8, p 67, para 113; there have nevertheless been cases where actions have been held maintainable against the heads of a Government department in which the judges have based their decision on the fact that the particular department was by statute or by the terms of its incorporation given the right to sue and had the liability to be sued imposed upon it.
It is my view that the latter situation is substantially a correct exposition of the law in relation to the instant case when the provisions of ss 3(1), 4(5) and 8(1)(b) and (c) and 9(2)(c) of the Ordinance which state as follows are fully considered:
‘3. (1) There shall be established for the purpose of this Ordinance a body to be called the Port Authority of Trinidad and Tobago...
4. (5) The Authority may sue and be sued in its corporate name and may for all purposes be described by such name, and service upon the Authority of any notice, order, or other document shall be executed by delivering the same or by sending it by registered post addressed to the secretary of the Authority, at the office of the Authority...
8. (1) It is the function of the Authority– ...
(b) to operate port services in accordance with this Ordinance;
(c) to operate the Government Shipping Service between the Islands of Trinidad and Tobago in accordance with the provisions of Part IX; ...
9. (2) The Authority may for the purpose of the discharge of its functions:–
(c) carry on any such activities in association with other bodies or persons including Government authorities or as managing agents or otherwise on its own behalf; ...’
These sections and in particular s 4(5) appear to completely demolish the submission under review.
The second submission was to the effect that the receipt or boat note was in fact a contract between the parties and that as a result the respondent’s claim must be treated as a claim in contract in accordance with the actual terms and conditions endorsed thereon and not as one involving the tort of negligence. See Hall v Brooklands Auto Racing Club ( All ER (Repl) 208,  1 KB 205, 101 LJ KB 679, 147 LT 404, 48 TLR 546, 36 Digest (Repl) 59, 323), but see also Beaumont Thomas v Blue Star Line, Ltd ( 3 All ER 127, 55 TLR 852, 83 Sol Jo 497, 8 Digest (Repl) 111, 719) ( 3 All ER 127 at p 130).
Assuming that the document under review is only a receipt although it seems clear that it may also be regarded as a contract, the question which must be posed is whether the appellant would be entitled to exceed the statutory authority conferred upon it by the Ordinance by imposing unauthorised conditions upon a shipper of goods by means of an endorsement of such conditions upon the receipt or boat note. If, as it appears to me, there is no such statutory authority, these conditions are ultra vires the Ordinance and obviously cannot be enforced. It is not, of course, being suggested that the provisions of the Carriage By Sea Ordinance, Cap 31 No 7, are wholly inapplicable, but I am of the view that this particular transaction must be here construed as falling within the ambit of the Port Authority Ordinance 1961.
It would therefore seem clear that the only conditions which could have been imposed in the instant case by the appellant would have been those appearing in s 35 of the Ordinance which it must be noted do not include “perils of the sea”, hence the appellant would not be exempted from loss or damage thereby sustained; especially if due to negligence, ie “want of reasonable foresight and care”, as seems to be manifest in this case, although s 36 would apply in so far as limitation for loss is applicable. It must further also be observed that s 37 provides that it is unnecessary in any proceedings brought against the appellant for the person claiming damages or compensation to prove how the loss, misdelivery, detention or damage to the goods was caused.
It is apparent, therefore, that any conditions appearing on the boat note or receipt–which are not specifically enumerated in s 35 of the Ordinance–should be disregarded as being ultra vires the appellant. More specifically, it follows that the appellant would be liable under the provisions of the Ordinance (see s 35(1) (b)) for any loss or damage to goods being carried in cases where the loss or damage is due to the want of reasonable foresight and care on the part of any of the servants and/or agents of the appellant; and, as has been already adumbrated under s 37, the claimant proving damages is not even required to establish how the damage to his goods was caused.
In view of what has been already stated, I do not think it necessary that I should add anything further with respect to any of the other aspects of this case. I would therefore also dismiss this appeal with costs to be taxed and paid by the appellant and affirm the order of the learned trial judge and I also agree with the order for payment of interest as set out in the judgment of the learned President of this court.
CORBIN JA. In January 1965 Cyril Emmanuel Pierre (to whom I shall hereafter refer as “the respondent”) who lives in Tobago owned a Lambretta motor scooter which was in need of repair. He decided to send it to Trinidad on a ship operated by the Port Authority of Trinidad and Tobago (to whom I shall hereafter refer as “the appellant”) and on 12 January 1965 took it to the wharf at Scarborough, Tobago, for that purpose.
There he completed the documents required by the appellant, paid the prescribed charges for a return journey and delivered the scooter into the possession of the appellant’s agent for carriage to Trinidad. The repairs having been completed the scooter was on 16 January 1965 at Trinidad given back into the possession of an agent of the appellant for transmission to Tobago. On that journey, however, high seas were encountered and when the respondent went to take delivery of the scooter at Tobago on 17 January 1965 he discovered that it had been damaged. He nevertheless received the scooter, had the damage repaired and claimed the cost of repairs from the appellant. This claim was successful, and the appellant now appeals against the order of the learned trial judge.
The respondent’s claim was founded on breach of contract and alternatively in negligence but the hearing proceeded on the basis of the appellant’s failure to carry the goods safely as is required by a common carrier, on the principle that where remedy is s