Eslee Carberry Appellant v Grenada Telecommunications Ltd Respondent
| Jurisdiction | St Vincent and the Grenadines |
| Judge | MATTHEW,J.A.,ALBERT MATTHEW,Justice of Appeal [Ag.],Chief Justice [Ag.],SATROHAN SINGH,Justice of Appeal |
| Judgment Date | 15 September 1997 |
| Judgment citation (vLex) | [1997] ECSC J0915-5,[1997] ECSC (VCT) J0915-2 |
| Court | Court of Appeal (Saint Vincent) |
| Docket Number | CIVIL APPEAL NO.1 OF 1997 |
| Date | 15 September 1997 |
IN THE COURT OF APPEAL
The Hon. Mr. C.M. Dennis Byron Chief Justice [Ag.]
The Hon. Mr. Satrohan Singh Justice of Appeal
The Hon. Mr. Albert Matthew Justice of Appeal [Ag.]
CIVIL APPEAL NO.1 OF 1997
Mr. P. R. Campbell for the Appellant
Mr. S. E. Commissiong for the Respondent
MATTHEW,J.A. [Ag.]
This appeal arises out of a motion which the respondent brought to commit the appellant to Her Majesty's Prison at Kingstown for his failure to pay a judgment debt and costs which the Court had ordered him to pay within a specified time. At the hearing of the motion learned Counsel for the appellant took a point in limine to the effect that the Court had no jurisdiction in the matter. After hearing arguments and reserving his decision the learned Trial Judge overruled the submissions made on behalf of the appellant but granted the appellant leave to appeal to this Court. I shall now set out the background to this matter.
The respondent obtained judgment against the appellant in Grenada for the sum of $8,578.01 and costs taxed at $121.28 on December 15, 1993. The appellant then left Grenada and took up residence in St. Vincent. On December 12, 1995, the respondent filed an originating summons pursuant to section 3 of the Commonwealth Countries Judgment [Enforcement] Act Cap.82 asking that the said judgment be registered in the High Court of St. Vincent and the Grenadines. An order was accordingly made on January 4, 1996 and notice of the same was served on the appellant on January 16, 1996.
On April 15, 1996 the respondent filed an ex parte summons pursuant to Order 69, Rule 1 of the Rules of the Supreme Court 1970 for an order that the appellant attend and be orally examined as to whether any and what debts are owing to him, and whether he has any other property or means of satisfying the judgment dated the 15 th day of December, 1993 of the High Court of Grenada which was registered in the High Court of St. Vincent. The application was granted on April 19 and an order was made that the appellant attend for examination on May 3, 1996. The appellant failed to appear on that day and an order was made that he pay the amount within six weeks from the date of the order.
The appellant was duly served with a copy of the order which was endorsed with the usual penal sanction, but he refused to obey the order. As a result the motion to commit him to prison was filed on July 11, 1996. The motion came up for hearing on October 10, 1996 and January 15, 1997 and the learned trial Judge gave the ruling referred to above on February 3, 1997.
The appellant was not satisfied with the ruling of the learned trial Judge and has appealed to the Court.
The appellant filed two grounds as follows:
[1] The learned trial Judge failed to consider and address adequately or at all the detailed submissions made on behalf of the appellant to the effect that the High Court lacked jurisdiction to grant the order sought by the respondent's motion, as set out in Skeleton Argument which was before the Learned trial Judge, and thus deprived the appellant of a fair hearing of his case by ignoring the central issue therein.
[2] The learned trial Judge erred in law in holding that "the [Respondent was] not invoking the summary jurisdiction of the High Court by virtue of the Debtors Act Cap.86 but by Order 73 of the Rules of Supreme Court", in that His Lordship failed to draw the necessary distinction between the procedural nature of the Rules of the Supreme Court and the substantive nature of the Debtors Act Cap.86, and failed to give effect to the supremacy of the Debtors Act Cap.86 over the Rules of the Court thereby erroneously holding in effect that the High Court possessed jurisdiction to punish the appellant for contempt subject to the evidential burden.
Learned Counsel for the appellant submitted that the order of May 3, 1996 was an order to pay a money judgment in the High Court in its plenary jurisdiction as opposed to its summary jurisdiction. Counsel further submitted that the motion sought to seek imprisonment of the Appellant for a debt and that was governed by the Debtors Act, Cap.86 of the Laws of St. Vincent. Counsel referred to sections 4[1][e] and 6 in particular. Counsel submitted that the summary jurisdiction of the High Court was only $240.00 and the amount in this claim is therefore in excess of the High Court's summary jurisdiction. Counsel referred to the following authorities:
[1] Horsnail and Another v Bruce [1873] L.R. 8 C.P.378
[2] Fred Toppin and Rudolf's Limited Civ. App. No.13 of 1991
Learned Counsel for the appellant submitted that the apparent anomaly in the law could only be cured by legislative intervention.
In reply, learned Counsel for the respondent submitted that the appellant was ordered to pay money within a specific time and he had two courses of action. He could either have asked for time to pay or ignore the order as he did. Counsel submitted that the appellant wilfully refused to obey the Court's order and he should therefore be committed. This he said was his short reply. Counsel referred to the case of Roberts v Ball E.R. Vol.65 page 610.
Volume 8 of the Third Edition of Halsbury's Laws of England at paragraph states in part —"Contempt of court is either [1] criminal contempt, consisting of words or acts obstructing or tending to obstruct the administration of justice, or [2] contempt in procedure, consisting of disobedience to the judgments, orders or other process of the Court, and involving a private injury". Paragraphs 41 and 46 recognise a further subdivision of the latter category into Disobedience to Orders for the Payment of Money and Disobedience to Orders other than for the Payment of Money and to other process. The same sub-division is contained at paragraphs 66 and 77 of volume 9 of the Fourth Edition of Halsbury's Laws of England. This case of course concerns the disobedience to an order for the payment of money. Paragraph 78 of Volume 9 of the Fourth Edition of Halsbury's Laws of England states the effect of the Debtors Act 1869 as follows:
"The general object of the Debtors Act 1869 was to prevent the imprisonment of persons for the non-payment of ordinary judgment debts. Subject to certain exceptions no person is to be arrested or imprisoned for making default in payment of a sum of money.
The exceptions to this general rule are as follows: [1] default in payment of a penalty, or sum in the nature of a penalty, other than a penalty in respect of any contract; [2] default in payment of any sum recoverable summarily before a justice or justices of the peace; [3] default by a trustee or person acting in a fiduciary capacity and ordered to pay by a Court of equity any sum in his possession or under his control; [4] default by an attorney or solicitor in payment of costs when ordered to pay costs for misconduct as such, or in the payment of a sum of money when ordered to pay the same in his character as an officer of the Court making the order; [5] default in payment for the benefit of creditors of any portion of salary or other income in respect of the payment of which any Court having jurisdiction in bankruptcy is authorised to make an order; [6] default in payment of sums in respect of the payment of which orders are in the Debtors Act 1869 authorised to be made; [7] default in payment of any sum payable in respect of death duties or purchase tax.
The maximum period of imprisonment in any of the excepted cases is one year, but in certain cases the Court has a discretion to refuse committal. The order of committal must accurately must accurately specify under which exception the default is included. The imprisonment is a punishment for contempt and the suffering of imprisonment in no way discharges the debt."
C.J. Miller in his book, Contempt of Court at page 232 deals with Civil Contempt of Court which is another way of describing what Halsbury calls Contempt in Procedure. But Miller makes the same subdivision and deals firstly with Disobedience of an order other than an order for the payment of a sum of money and later in the 14 th chapter at page 271 deals with Disobedience of an order for the payment of a sum of money. After referring to sections 4 and 5 of the Debtors Act, he states at page 272:
"Whilst the impecunious debtor was protected, the debtor who had the means to pay remained liable to a maximum term of six weeks' imprisonment to coerce him into compliance ……………………in cases falling outside these limited committal by the High Court or by a county court is no longer possible...
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