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ST. HILL V ATTORNEY GENERAL AND ANDREW HUTCHINSON (UNREPORTED) C.A. B'DOS. [2003] BBSC 7 (30 January 2003)

BARBADOS.

[Unreported]

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

Civil Appeal No.8 of 2000

BETWEEN:

LEONARD ST.HILL

(Appellant)

AND

ATTORNEY GENERAL

(First Respondent)

ANDREW HUTCHINSON

(Second Respondent)

Before:  The Hon. Sir David Simmons K.A., B.C.H., Chief Justice, the Hon. Frederick Waterman, Justice of Appeal, and the Hon. Lindsay Worrell, G.C.M., Justice of Appeal (ag.)

2002: July 25, 26, 27

2003: January 30

Mr. John Connell Q.C. in association with Mr. Roger Forde and Mr. William Chandler for the Appellant.

Ms. Valentina Blackman, Principal Crown Counsel, for the First Respondent.

Sir Henry Forde Q.C. in association with Mr. Nicholas Forde for the Second Respondent.

JUDGMENT

SIMMONS CJ:  This appeal highlights the problems that may arise when a public official with statutory responsibilities fails to carry them out and the citizen is disadvantaged.  It concerns a sale by public auction [1] conducted by the Chief Marshal under the provision of the Court Process Act, Cap 111A (The Act).

[2]        The factual background is relatively simple for there is a large area of undisputed facts which may be distilled from the pleadings and the considerable amount of correspondence passing between the parties.  The parties are the appellant (St. Hill) who, at all material times was the owner of a dwellinghouse and the land on which it stood at Bamboo Ridge, St. James (the property), the first respondent, the Attorney General of Barbados and the second respondent, Andrew Hutchinson (Hutchinson).

[3]        As long ago as 1984 St. Hill fell upon financially hard times.  He owed a judgment debt to the Bank of Nova Scotia (the Bank) which he could not liquidate and there were two other unsatisfied judgments registered against him.  On October 4, 1984, the Bank’s attorneys-at-law, Yearwood & Boyce, instructed the Chief Marshal to levy execution against the property at Bamboo Ridge.  The instructions were in respect of Suit No.428 of 1982, Bank of Nova Scotia v Leonard St. Hill.

The sale by the Chief Marshal

[4]        Twice in 1986 the property was advertised for sale for any sum not under the certified value of $257,000 but it remained unsold since [2] there were no bidders.  On January 27, 1987, Yearwood and Boyce issued new instructions to the Chief Marshal to sell the property “pursuant to section 62(1) of the Court Process Act, Cap 111A without reserve.”  The Chief Marshal complied.  He advertised the property in accordance with the law and set June 30, 1987, as the date of the sale, the same being “by public auction without reserve to the highest bidder.”  There was a notice at the foot or end of the advertisement which read: “N.B. 25 per cent of purchase price to be paid on the date of the purchase.”

[5]        The public auction of the property was in fact held on July 1, 1987.  At the fall of the hammer, the Chief Marshal knocked down the property to Hutchinson for $176,000 – the highest bid.  At the trial there was evidence that the true value of the property was between $300,000 and $330,000.  Hutchinson was declared the purchaser by the Chief Marshal who requested Hutchinson to sign a form whose contents are important.  The form read:

                        “CONDITIONS OF SALE

                        The Court Process Act, 1978-31, Section 62(1).

                        In the matter of the sale of a property situated at Bamboo Ridge, St. James attached from Leonard St. Hill.[3]

                        The sale in the above matter is conducted under the following conditions that:

                        (a)  The highest bidder for not less than the appraised value shall  be  declared the purchaser and pay to the Chief Marshal a deposit equal to such percentage not exceeding 25% of the purchase price as the Chief Marshal determines.

(b)   The purchaser shall within 7 days after the date of the sale complete payment of half the purchase price and pay the other half together with interest at the current rate within a period of 3 months from the date of the sale, the deposit being regarded as part of the payment.

(c)  The purchaser shall at the time of making the first payment deliver to the Chief Marshal a judgment confessed by the purchaser for securing:

(i)                 payment of the balance of the purchase price and interest thereon at the time when they become payable and

(ii)               payment of expenses incurred in taking out of execution and payment of the fees as prescribed under section 10.

This 1^st day of July 1987”

[6]        Having signed the form Hutchinson paid the sum of $44,000 on the said July 1, 1987 and on July 6, 1987 he paid a further sum of $44,000 making a total payment of $88,000 – half of the purchase price.  The remaining balance was due for payment within 3 months of July 1, 1987.[4]

[7]        On July 1, 1987, the Chief Marshal told Hutchinson that St. Hill would be given 4 to 6 weeks to vacate the property and he faithfully wrote to St. Hill on July 2, 1987, informing him of the outcome of the sale and notifying him that “in accordance with the provisions of the law you are hereby given notice to quit the premises by August 4^th, 1987.”  St. Hill was served with the notice to quite on July 6, 1987.

[8]        When about a month passed and St. Hill did not vacate the property, the Chief Marshal promised Hutchinson that he would give St. Hill an additional 2 weeks within which to leave.  Hutchinson was anxious to see the property since he was purchasing it as his intended matrimonial home.  He had been living in a one-bedroom apartment at Golden View, St. James and this would have been unsuitable after his marriage planned for early 1988.

[9]        On payment of the second sum of $44,000 (i.e. July 6^th, 1987), Hutchinson was given a second form to be signed.  This one read:

                        “Authority to put Purchaser in possession of property.”

                        Court Process Act, Cap. 11A, section 51

                        This is to authorize Mr. T. Thompson – Marshal I, to enter on the property , namely Leonard St. Hill, No. 9 Bamboo Ridge, St. James attached from Leonard St. Hill which was on the 1^st [5] day of July 1987 sold by the Chief Marshal, and at the same time put into possession thereof Andrew Hutchinson who has become the purchaser.”

[10]      This rather inelegantly drafted form was signed by the Deputy Chief Marshal Mr. Lewis.  Then there followed these words and thereafter Hutchinson’s signature:

                        “I the undersigned hereby certify that I have been put into possession of the above property this          day of       19  .”

            The date of Hutchinson’s actual entry into possession was blank.  The Chief Marshal had given him no date upon which he could take up actual possession of the property.

Events after July 6, 1987

[11]      On August 5, 1987, the Chief Marshal gave St. Hill a further extension of time within which to quit and advised him that failure to quit by August 18, 1987, would lead to the commencement of proceedings in the Supreme Court.  By this time, however, St. Hill had sought and obtained a meeting with Hutchinson and his attorney-at-law at which he made two proposals: (a) to purchase the property from Hutchinson at a premium, the purchase price to be paid over 6 months or (b) to build a house for him near to the [6] property at a cost not exceeding what Hutchinson had agreed to pay the Chief Marshal.  Hutchinson turned down the proposals.

[12]      Unable to give Hutchinson any definite news about St. Hill’s vacation of the property, the Chief Marshal consulted the Solicitor-General on several occasions as did Hutchinson.  They were unable to elicit any conclusive answers or advice from the Solicitor-General and so Hutchinson took the private legal counsel of Mr. Colin Williams Q.C. then of the firm of Hutchinson and Banfield.

[13]      St. Hill, however, was not in a similar state of uncertainty or indecisiveness.  As the saying goes, he “took in front.”  On August 10, 1987 he tendered a certified cheque to the Bank for $106,128.82 in full settlement of the judgment and costs incurred in the suit.  He requested that “in consideration of such satisfaction, proceedings in the sale of my home at 9 Bamboo Ridge, St. James cease immediately.”  He copied his letter to the Solicitor-General and the Chief Marshal.

[14]      The Bank’s attorneys-at-law replied to St. Hill two days later returning the cheque, pointing out that it was not within the power of their client to cancel the sale and advising St. Hill that cancellation of the sale was a matter to be negotiated between St. Hill, [7] Hutchinson and the Chief Marshal “and sanctioned by the Court.” Undaunted, St. Hill followed up on August 18, 1987.  He re-tendered the cheque from the Bank, this time without condition and he again copied his correspondence to the Solicitor-General and the Chief Marshal.

[15]      On August 19, 1987, Yearwood & Boyce wrote to the Chief Marshal informing him that the Bank had been satisfied as to the judgment debt and had no further claim under the judgment and the Writ of Execution.

[16]      This turn of events now put the Chief Marshal in a grave dilemma.  The Deputy Chief Marshal wrote to Hutchinson on August 24, 1987, and informed him that he was “entitled to possession of the property” and should “call at the office on or before 27^th August 1987 to be put into possession.”  The letter continued:  “It is confirmed that if possession is delivered to you, it will still be the obligation of the Chief Marshal to give you vacant possession to compel Mr. St. Hill to vacate the property.” (our emphasis).  A hope of vacant possession was being offered but payment of the balance of purchase money had not yet been made.

[17]      Thereafter the matter seems to have limped along.  The Chief Marshal was unable to get definitive legal advice from the [8] Solicitor-General.  And no attempt was made by the Chief Marshal or the Solicitor-General to seek any appropriate court order.  St. Hill continued in occupation of the property.

[18]      It was left to Hutchinson’s attorneys-at-law to advance the matter.  They wrote to the Chief Marshal on October 9, 1987, and pointed out that since he had not taken actual possession of the property under section 37 of the Act, he could not give Hutchinson vacant possession.  And then they made a request:

                                    “In view of the fact that you are presently unable to give Mr. Hutchinson actual possession, we submit that it is fair and reasonable, and we hereby request, that you extend the period of payment of the balance of purchase money by a further 3 months as permitted by section 43(6) of the Act.  Of course, if within that period you can give vacant possession, our client will forthwith pay off the balance of purchase price.”

            The letter ended with a further request to hear from the Chief Marshal as to what date he estimated that he would be in a position to give Hutchinson vacant possession.

[19]      By letter of October 21, 1987, the Chief Marshal granted Hutchinson an extension of 3 months within which to pay the balance of purchase money “in view of the present circumstances in this matter.”  The exercise of this discretion is the subject of challenge on this appeal.  The trial judge had held that it was a proper exercise [9] of the discretion conferred on the Chief Marshal by section 43(6) of the Act.

[20]      On November 4, 1987, Hutchinson paid the balance of purchase money of $88,000 to the Chief Marshal and two days later gave the Chief Marshal 14 days within which to complete the sale or, in default, face litigation.  On November 16, 1987, in a letter to Mr. Williams of Hutchinson & Banfield, the Chief Marshal expressed a willingness to let Hutchinson have a draft conveyance but confessed his inability to give vacant possession because, as he said, he still “had not heard from the Solicitor-General’s office.”  It was not until May 6, 1988 that a draft conveyance was tendered.  It was in the form applicable to a cash conveyance.

Litigation

[21]      Hutchinson filed the action in these proceedings on January 14, 1988.  He claimed, inter alia, declarations that he was the duly declared purchaser of the property on July 1, 2987; that the Chief Marshal was under an obligation to give him a conveyance of the property; that he was entitled to immediate possession and that St. Hill should give him vacant possession.  In addition he claimed damages and mesne profits against St. Hill.  No claim was made for specific performance of the contract.[10]

[22]      On his part St. Hill pleaded that the Chief Marshal was in breach of statutory duties imposed on him under the Act, in particular, failing to obtain a confessed judgment and failing to re-attach and re-sell the property under section 53(2) of the Act.  Then the Defence pleaded that, as a result of statutory breaches of duty, the Chief Marshal’s receipt of the balance of the purchase money on November 4, 1987 was ultra vires and void.  Allegations were also made that Hutchinson was in breach of section 43(3)(b) and section 55(1) of the Act for failing to pay the balance of purchase price on October 1, 1987, and that the Chief had exercised his discretion under section 43(b) improperly in not notifying St. Hill that he had given Hutchinson an extension of time to pay the balance of the purchase money.

[23]      Hutchinson contested the allegations in the Defence in his amended Reply and pleaded an estoppel relying especially upon the meeting at which St. Hill had made the two proposals and asserting that Hutchinson was induced by St. Hill to believe that the latter accepted the validity of the sale of July, 1987, and had induced Hutchinson to complete his financial arrangements to raise the balance of the purchase money.[11]

Important provisions of the Act

[24]      We think it helpful to interrupt the factual narrative of this matter at this stage and set out certain provisions of the Act which will bear directly upon the issues in this appeal and which, in any event, will assist in a better understanding and appreciation of those issues.

[25]      We start with section 62 under which the Chief Marshal was instructed to sell St. Hill’s property.  This section empowers the Chief Marshal to sell the land of a judgment debtor without reserve to the highest bidder at a public auction.  It spells out the procedure for advertisement in the Official Gazette and a newspaper calling upon persons having interests, estates, rights, liens or encumbrances affecting the land to bring in their claims.  If claims are not brought in within a specified time, the land may be sold; but where a claim is received, a Judge in Chambers will adjudicate its validity.

[26]      Section 43 is the next provision of importance.  This deals with the procedure to complete the sale of land and provides as follows:

“43(1)   The Chief Marshal shall cause all lands attached under any execution issuing from any court to be sold at public auction during any period of the year, after appraisement in pursuance of section 40 and after giving notice of such sale.”[12]

Subsection (2) then specifies the content of the notice and requires it to be published in the Court Process Office and advertised in the Official Gazette and a newspaper in Barbados.

Subsections (3) to (7) are of particular relevance in this appeal.  They enact:

“(3)   The Chief Marshal, shall, at the time and place appointed for the sale of the land, set up that land for sale at a public auction upon condition that –

(a)             the highest bidder for not less than the appraised value shall be declared the purchaser and pay to the Chief Marshal a deposit equal to such percentage, not exceeding twenty-five per cent of the purchase money, as the Chief Marshal determines;

(b)            the purchaser shall, within seven days after the date of the sale, complete payment of half of the purchase   price and pay the other half together with interest at the current rate within a period of three months from the date of the sale (the deposit being regarded as part of  the payment);

(c)             the purchaser shall at the time of making the first payment deliver to the Chief Marshal a judgment confessed by the purchaser for securing –

(i)                  payment of the balance of the purchase price and interest thereon at the time when they become payable, and

(ii)                payment of the expenses incurred in the taking out of execution and payment of the fees as prescribed under subsection 10.

(4) A judgment confessed under subsection (3)[13]

(a)        shall be in the form set forth in Form A of the Second Schedule;

(b)        shall be prepared by the Chief Marshal, and

(c)        has priority against all other securities and judgments in respect of the property purchased.

(5)        The Chief Marshal shall, after delivery to him of a judgment confessed under this Act, execute in favour of the purchaser and in accordance with Form B set forth in Second Schedule a conveyance of the property purchased, and that conveyance shall be good and effectual in law for the purpose of  conveying all the estate, right, title and interest of the debtor, in and to the property so conveyed, and such property shall not ever be redeemed by the debtor or  his heirs.

(6)               Notwithstanding paragraph (b) of subsection (3), the Chief Marshal may extend the period of three months mentioned in that paragraph for a period not exceeding six months in a case where the  circumstances so warrant.

(7)        A party who objects to an extension granted under subsection (6) may give notice of objection in writing to the Chief Marshal within 7 days after the date of the granting of extension, and the Chief Marshal shall upon receiving such objection refer it to a judge in chambers who shall decide the issue, and the decision of the judge shall be final.”

[27]      One other section must be cited to set the scene fully.  Section 51 invests a purchaser of land with a statutory entitlement to possession upon payment of half of the purchase price.

[28]      And, finally, to section 55.  This provides:[14]

“55(1) Where a purchaser of any property under this Act fails to pay the balance of the purchase price money when it is due, the Chief Marshal shall attach the property sold and re-sell it in accordance with the procedure set forth in this Act, and also attach such other estate or effects of the purchaser as may be necessary for the purpose of satisfying any deficiency.

(2) Where a purchaser defaults in the payment of any one instalment, the entire balance of the purchase price shall immediately become due and the Chief Marshal may take proceedings to recover such balance.”

Findings of the Trial Judge

[29]      In his judgment delivered on October 20, 1998, Chase J. made a number of findings which we summarise.  He found that:

(i)                  on the fall of the hammer there was a binding  and concluded contract between Hutchinson and the Chief Marshal for the sale and purchase of the property;

(ii)                Hutchinson had complied with conditions (a) and (b) of the Conditions of Sale but the absence of the confessed judgment had not invalidated the sale;

(iii)               Hutchinson had a statutory right to possession on payment of half of the purchase price by virtue of section 51 of the Act;

(iv)              Cancellation of the sale would have been a matter for negotiation between St. Hill, the Chief Marshal and Hutchinson and sanctioned by the Court;

(v)                Hutchinson had already acquired a statutory right to possession as purchaser when St. Hill tendered his second cheque on August 18, 1987.  The [15] re-tendering of the cheque did not affect the validity of the contract for sale;

(vi)              The Chief Marshal was not in breach of duty in extending the time for payment of the balance of the purchase money without notifying St. Hill who suffered no prejudice whatever.

[30]      So far as the obligations owed by the Chief Marshal to Hutchinson were concerned, the trial judge found that there was undoubted failure on the part of the Chief Marhsal to fulfil his contractual obligations to convey the legal ownership in the property to Hutchinson within 14 days of November 6, 1987.  He fixed the date of the Chief Marshal’s breach of the duty to deliver vacant possession at November 25, 1987.

[31]      However, Chase J did not hold the Chief Marshal solely to blame.  He thought that the breaches on the part of the Chief Marshal were attributable also to the conduct of St. Hill in refusing to comply with the notices to quit as well as inaction on the part of the Solicitor-General and his staff and their failure to advise the Chief Marshal adequately as to the steps to be taken to resolve what had become an impasse.  The proceedings were then adjourned to enable the court to receive submissions on the relief consequential upon the findings.[16]

The Orders of February 25, 2000

[32]      Hearing was resumed on June 14, 1998, and the final decision was given on February 25, 2000.  The trial judge ordered St. Hill to give vacant possession before April 1, 2000; he ordered the Chief Marshal, upon obtaining vacant possession to take the necessary steps to complete the sale to Hutchinson.  He held the Attorney General and St. Hill jointly and/or severally liable to Hutchinson in damages calculated at $2000 per month from November 25, 1987 until delivery up of possession of the property.  Each of those respondents’ liability was limited to 50% of the damages, interest and costs. He ordered the Chief Marshal to repay Hutchinson $2314.52 paid as interest.  There were the usual consequential orders as to interest and costs.

The Appellate Proceedings

[33]      Although the appellant St. Hill filed 10 grounds of appeal, we shall treat them as raising four basic issues since some of them are, in effect, only explanatory of a single core issue.

Issue No.1

The effect of failure to obtain a confessed judgment. (Grounds 1, 2, 3)

[34]      The burden of the first 3 grounds of appeal is that the trial judge erred in law in concluding that the failure of the Chief Marshal to [17] obtain a confessed judgment from Hutchinson did not go to the root of the contract for sale and was a repudiation of it.  In short, that the trial judge ought to have held that the contract of sale was repudiated by the Chief Marshal’s omission to obtain a confessed judgment from Hutchinson.

[35]      Mr. Connell Q.C. submitted that the language of section 43(3)(c) is imperative and the published conditions of sale mandated the purchaser, Hutchinson, to give a confessed judgment.  The determination of this issue involves an interpretation of the Act.  Mr. Connell points out that in the statute of some 72 sections the word “shall” is used 58 times.  And he submitted that the use of the word “shall” in section 43(3)(c) places a mandatory duty on the Chief Marshal to obtain the confessed judgment in order to secure the balance of the purchase price and payment of the expenses of taking out the execution.  It is argued that the Chief Marshal, as a public official had no power to waive a mandatory duty and what was in effect “a condition precedent” to the sale.  Relying upon the labelling of contractual terms as either conditions or warranties, learned Counsel submits that, ex facie, the requirement for a confessed judgment was a condition entitling the injured party to bring the contract to an end for its breach.[18]

[36]      Under section 43(4) and (5) of the Act the responsibilities of the Chief Marshal were to prepare the confessed judgment in accordance with Form A of the Second Schedule to the Act, have it signed and delivered to him and, thereafter, execute a conveyance in favour of Hutchinson in accordance with Form B of the said Schedule.  These several responsibilities are expressed by use of the word “shall” in the subsections.

[37]      We begin our interpretation of section 43 by examining the Interpretation Act, Cap. 1.

                        In section 37 it is enacted:

            “37.  In an enactment passed or made after the 16^th June, 1966, the expression “shall” shall be construed as imperative and the expression “may” as permissive and empowering.”

            But this section must be read subject to sections 3 and 4 of the said Act.  Thus section 3 provides:

“3(1)  Every provision of this Act shall extend and apply to every enactment whether passed or made before or after the 16th June, 1966, unless a contrary intention appears in this Act or in the enactment.”

            And section 4 preserves the authority of rules of interpretation of statutes in that it provides:

                                    “4  Nothing in this Act shall be construed as excluding the application to an enactment of a rule of construction applicable thereto and not inconsistent with this Act.”[19]

[38]      Sir Henry Forde Q.C. submitted that the prima facie harshness of section 37 of the Interpretation Act “is mollified by sections 3 and 4”.  However that may be, it is apparent that in the interpretation of section 43 it is permissible, (section 37 of the Interpretation Act notwithstanding), to construe section 43 according to the canons of construction developed by the common law.

[39]      Before we examine the consequences of the omission of the Chief Marshal to obtain the confessed judgment we must construe section 43 in the light of established legal principles.  We start with academic learning.  The late Professor Stanley de Smith had, in his own inimitable style, extracted a series of principles from the wealth of decided cases and promulgated them in his work Judicial Review of Administrative Action.  The 1995 edition of that great work appearing now under the names of Lord Woolf and Professor Jeffrey Jowell introduces this matter at p.265.  The learned authors state:

“When Parliament prescribes the manner and form in which a duty is to be performed or a power exercised, it seldom lays down what will be the legal consequences of failure to observe its prescriptions. The courts have therefore formulated their own criteria for determining whether the prescriptions are to be regarded as mandatory in which case disobedience will normally render invalid what has been done, or as directory, in which case disobedience may be treated as an [20] irregularity not affecting the validity of what has been done …  The law relating to the effect of failure to comply with statutory requirements resembles an inextricable tangle of loose ends and judges have often stressed the impracticability of specifying exact rules for the assignment of a provision to the appropriate category.” – para. 5-057.

[40]      The authors then set out the main principles that courts have generally followed.  These are:

“(1)  A decision or action is in general to be treated as valid until struck down by a court of competent jurisdiction.

(2)  Statutory words requiring things to be done as a condition of making a decision especially when the form of words requires that something “shall” be done, raise an inference that the requirement is “mandatory” or “imperative” and therefore the failure to do the required act renders the decision unlawful.

(3)  The above inference does not arise when the statutory context indicates that the failure to do the required act is of insufficient importance, in the circumstances of the particular decision, to render the decision unlawful.

(4)  The courts, in appropriate cases and on accepted grounds may, in their discretion refuse to strike down a decision or action or to award any other remedy.” – para. 5-058.[21]

[41]      de Smith concludes: “Breach of procedural or formal rules is likely to be treated as a mere irregularity if the departure from the terms of the Act is of a trivial nature, or if no substantial prejudice had been suffered by those for whose benefit the requirements were introduced.  But the requirements will be treated as “fundamental” and of “central importance if members of the public might suffer from its breach.” para 5-061.

[42]      The recommended approach to the problem of whether a provision is mandatory or not is to consider the whole purpose and scope of the legislation and then assess the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to the secured by the Act.  We therefore briefly review the main Parts of the Act before examining the decided cases.

The Court Process Act

[43]      The Act’s principal purpose as set out in Part II is to establish the Court Process Office as part of the Registration Office.  The Chief Marshal’s office is staffed by a Chief Marshal and various Marshals I and II.  The functions of the Marshals are to facilitate the process of the courts by executing writs, orders, levies and the commands of the judiciary, serving summons and other process and to perform [22] any other functions required by any law in force or by the court – section 5.

[44]      Part III contains general provisions concerning writs of execution.  Part IV regulates levies on goods and Part V, under which fall the provisions disputed in this appeal, regulates the manner of levying and selling land.  Part VI gives directions as to the letting and rental of land levied on.  Part VII deals with transitional provisions and Part VIII creates offences and deals with the powers of arrest of Marshals.

[45]      It is our interpretation that the overall purpose of Part V is to guide the Chief Marshal through the procedure from levy to sale, and ultimately, conveyance of the land the subject of an execution.  Under section 37 upon a levy being made on land, the Chief Marshal must take and keep actual possession of the land until it is sold or otherwise disposed of and he must display on the land a “For Sale” notice.

[46]      In this appeal it is common ground that the Chief Marshal did not take actual possession of the property when he executed the levy.  It is also common ground that St. Hill refused to deliver up possession of the property in defiance of the demands of the Chief Marshal and, in fact, he still retains possession today.[23]

[47]      In fulfillment of our duty to examine the whole Act, we have surveyed and summarized its first four Parts without dwelling upon a tedious recitation of each section.  Notwithstanding our earlier citation of some of the provisions of section 43 at para [26], it is incumbent upon us to go into rather more detail in our consideration of Part V which contains the several provisions directly relevant to this appeal.

Part V of the Act

[48]      Under this Part, provision is made for a judgment debtor to disclose any encumbrances affecting the land (section 39); for appraisement (sections 40 and 41) with the obvious intention of ensuring that the property is not sold at an undervalue; and for the amount of land that may be sold (section 42).

            Section 38 is intended to ensure that the Chief Marshal acquires custody of the title deeds so that he can show a good title to a purchaser and in due course deliver them to such purchaser on completion of a sale.

            Section 43 (para. [26]) is enacted for the purpose of making sure that lands sold by public auction conform to certain procedural requirements in order to allow potential purchasers to be fully apprised of the essentials of the sale – see section 43(1).  However, [24] the purpose of section 43(3), around which much of the dispute in this appeal is located, is to make sales of land by public auction subject to 3 conditions at the instance of the Chief Marshal.  Thus provision is made for payment of a deposit, payment of half of the purchase price and signing a confessed judgment.

[49]      The confessed judgment must be in the form prescribed in the Second Schedule and must be prepared by the Chief Marshal.  When the confessed judgment has been delivered to the Chief Marshal, he must execute a conveyance in favour of the purchaser according to the form prescribed at “B” of the Second Schedule – subsection (5).

[50]      By section 43(6) the Chief Marshal has a discretion to extend the period of 3 months up to 6 months “in a case where the circumstances so warrant”.  Subsection (7) provides that a party objecting to an extension may give notice to the Chief Marshal within 7 days of the grant of extension and, thereupon, the Chief Marshal may refer the matter to a judge in Chambers for final determination.

[51]      Passing now to one other key section in Part V, section 51 gives the purchaser of levied lands an entitlement to possession on payment of one-half of the purchase price and the right to investigate the title.  It states:[25]

                                    “51. A purchaser of property under this Part is entitled to possession thereof upon payment of half the purchase price and may, personally or through his attorney-at-law, upon payment of a fee, inspect and make extracts from any title deed in possession of the Chief Marshal that relates to such property.”

[52]      Section 54 sets out the procedure where there is an objection to the title and section 55 deals with situations where half of the purchase price has not been paid.  Section 58 is also of importance in this appeal.  For by this section the Chief Marshal is permitted, if requested by the purchaser, in lieu of executing a conveyance according to the Form in the Second Schedule, to “execute such other conveyance as the purchaser requires.” (our emphasis)

The effect of non-compliance with the Act

[53]      This is the crucial issue in this appeal.  What is the consequence of a departure from the provisions of the statute?  As we have indicated, Mr. Connell contends that the use of the word “shall” in section 43(3)(c) is mandatory.  He submits that the Chief Marshal must, in particular, take a confessed judgment from the purchaser.  Sir Henry Forde argues otherwise.  He says that the word “shall” is directory or facultative – see Starke J in Re Davis [1947] HCA 53; (1947-48) 75 CLR 409 at 418.[26]

[54]      The true construction and effect of the word “shall” in a statute is a common problem in the interpretation of statutes.  As Millett L.J. said in Petch v Gurney [1994] EWCA Civ 9; [1994] 3 All ER 731 at 736:

“The question whether strict compliance with a statutory requirement is necessary has arisen again and again in the cases.  The question is not whether the requirement should be complied with: of course it should: the question is what consequences should attend a failure to comply …..  The Court has dealt with the problem by devising a distinction between those requirements which are said to be “mandatory” (or ‘imperative’ or ‘obligatory’) and those which are said to be merely ‘directory’…….  Where the requirement is mandatory, it must be strictly complied with; failure to comply invalidates everything that follows.  Where it is merely directory, it should still be complied with, and there may be sanctions for disobedience; but failure to comply does not invalidate what follows.”

[55]      Clearly a court must seek to ascertain the legislative intention but, in each case, there are basic matters which must be considered by a court.  The old but sound advice of Lord Penzance in Howard v Bodington (1877) 2 P.D. 203 repays full quotation:

            At p. 211 he said:

“I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in [27] that aspect decide whether the matter is what is called imperative or only directory.”

[56]      More recently, Cooke J, (as he then was) in New Zealand Institute of Agriculture Science Inc. v Ellesmere County [1976] 1 N.Z.L.R.630 said at p.636:

“Whether non-compliance with a procedural requirement is fatal turns less on attaching a perhaps indefinite label to that requirement than on considering its place in the scheme of the Act or regulations and the degree and seriousness of the non-compliance.”

[57]      Similarly in Montreal Street Railway Company v Normandin [1917] AC 170 at p.175 Sir Arthur Channel delivering the advice of the Privy Council held that:

“When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done.”

            It seems to us that the contemporary approach to finding the true meaning of the word “shall” in circumstances such as these is to pay especial regard to the consequences of non-compliance.

[58]      Lord Woolf’s recent and timely review of the problem of determining the consequence of non-compliance with a procedural requirement is instructive.  In R v Secretary of State for the Home Department ex parte Jeyeanthan [1999] EWCA Civ 3010; [2000] 1 WLR 354 the Master of the Rolls explained the proper approach to procedural [28] irregularities thus at p.358:

“The conventional approach when there has been non-compliance with a procedural requirement laid down by a statute or regulation is to consider whether the requirement which had not been complied with should be categorized as directory or mandatory……..

The position is more complex than this and this approach distracts attention from the important question of what the legislator should be judged to have intended should be the consequence of non- compliance.  This has to be assessed on a consideration of the language of the legislation against the factual circumstances of the non-compliance.”

[59]      At page 359 His Lordship continued:

“In the majority of cases, whether the requirement is categorized as directory or mandatory, the tribunal before whom the defect is properly raised has the task of determining what are to be the consequences of failing to comply with the requirement in the context of all the facts and circumstances of the case in which the issue arises.  In such a case the tribunal’s task will be to seek to do what is just in all the circumstances: see Brayhead (Ascot) Ltd v Berkshire C.C. [1964] 2 QB 303 applied by the House of Lords in London and Clydeside Estates Ltd v Aberdeen D.C. [1979] UKHL 7; [1980] 1 WLR 182.”

[60]      Lord Woolf advised that it is much more important to focus on the consequences of non-compliance.  Procedural requirements are designed to further the interests of justice and any consequence [29] which would achieve a result contrary to those interests should be treated with considerable reservation.

[61]      Applying the legal principles to the facts in this appeal, it can be confidently asserted that the failure to deliver the confessed judgment was not the fault of Hutchinson.  It was the duty of the Chief Marshal to prepare it in accordance with Form A prescribed in the Second Schedule.  If, as happened here, the Chief Marshal did not prepare the confessed judgment for Hutchinson’s signature, it would be unjust to hold him blameworthy.

[62]      We can test the effect of the Chief Marshal’s failure to comply with section 43 by this scenario.  Suppose Hutchinson was willing to give a banker’s draft to be held in escrow to secure the balance of the purchase price?  Would it have been reasonable for the Chief Marshal to insist upon a confessed judgment in circumstances where he had other valid security?  After all, the fundamental purpose of the confessed judgment was to provide security for the outstanding balance of purchase money.  It seems to us that any other form of valid security to secure the balance of purchase money would have satisfied the legislative purpose of the section.  It was therefore open to the Chief Marshal to waive the requirement and he clearly did so.[30]

[63]      If section 43(3)(c) is construed as imposing a mandatory duty to have a confessed judgment delivered, it would mean that the Chief Marshal could never accept an alternative but equally efficacious form of security.  And to go further.  It would mean that he could never give a conveyance in exchange for ready cash under section 58.  For as we pointed out at para [52], under that section, the Chief Marshal is empowered to give an alternative form of conveyance to that specified in the Second Schedule.  There was evidence in the case from both the substantive Chief Marshal, Mr. Marshall and his deputy, Mr. Lewis, that no confessed judgment was necessary from Hutchinson since the conveyance was to be “a cash conveyance” – (see pages 76 and 94 of the record).

[64]      Moreover, under section 51, a purchaser is given a statutory right to possession upon payment of half of the purchase price and, reading sections 43, 51 and 58 together, it is apparent that a purchaser does not become entitled to a conveyance after payment of the full purchase price but after payment of half and at the time of delivery of the confessed judgment where one is required.

[65]      It is our opinion that in such circumstances the purchaser becomes the beneficial owner of the property. The confessed judgment is in the nature of a statutory lien.[31]

[66]      It is our judgment that the degree and seriousness of the Chief Marshal’s non-compliance were not fatal to the validity of the contract for sale.  The non-compliance with the statute was all on the part of the Chief Marshal.  He failed to take actual possession of the property.  He allowed St. Hill to remain in it – to this day.  He accepted the full purchase price from Hutchinson but never put him into possession.  He did not produce the title deeds to Hutchinson as required by the Act.  None of these omissions was attributable to Hutchinson’s conduct.  If anyone suffered prejudice it was Hutchinson not St. Hill.

[67]      If we were to hold the contract as null and void because of the Chief Marshal’s failure to follow the procedural requirements of the Act, serious injustice would attend Hutchinson who had no control over the Chief Marshal as a public official under the legislation.

[68]      Mr. Connell argues that the requirements of section 43(3) are statutorily defined as “conditions” and, upon ordinary principles of contract law, breach of a condition entitles the injured party to repudiate the contract and sue for damages.  Admittedly those “conditions” were incorporated in the contract as terms but, in construing the contract, we are not bound by the subjective nomenclature ascribed to terms by the parties or even the statute.[32]

            Lord Wilberforce in Bunge Corporation v Tradax [1981] UKHL 11; [1981] 2 All  E.R. 513, warned against being hidebound by stipulations labelled as “conditions” or “warranties.”  The way to approach construction of contractual terms is to ask two questions. First, what important have the parties expressly ascribed to the consequence of breach? and, second, in the absence of express agreement, what consequence ought to be attached to it having regard to the contract as a whole?

[69]      In the particular circumstances of this contract for sale where both of the contracting parties agree that the transaction was to be effectuated by a cash conveyance, we do not believe that they would have contemplated an end of the contract because the Chief Marshal did not procure a confessed judgment.  Since the parties never adverted to that consequence at the time of the contract and reading the several statutory provisions of Part V as a whole, we do not think that the “condition” of sale as described in the Act and the advertisement of the auction was a condition in the classical contractual sense.  It was a term whose status was dispensable in the particular circumstances of the case.

[70]      We therefore hold that, in relation to the obtaining of a confessed judgment, the word “shall” is only directory. To hold otherwise would demand a construction that non-compliance by the Chief [33] Marshal would render the contract void.  It would lead to the conclusion that, even where a purchaser was ready, willing and able to pay all of the purchase money in cash against the receipt of a conveyance, the Chief Marshal would be powerless to accept the money.  He would be obliged to procure a confessed judgment.  Such a conclusion would clearly be an absurdity or, at the very least, an impractical inconvenience.

[71]      It follows that we are of the opinion that there was no breach of statutory duty properly so called.

[72]      There is one further point to be considered before we leave this issue.  Counsel queried whether section 43 applied to sales conducted pursuant to section 62 of the Act.  The trial judge had held that “section 62 does not prescribe the terms that are to apply to a sale under that section.”  That section does not speak to the requirement for a confessed judgment.  It is noteworthy that section 62(2) expressly excludes the operation of section 44.  In our view, if section 43 was also to be made inapplicable, we should have expected a similar express exclusion of section 43.  But there is none.  It seems to us therefore that section 43 applies to sales conducted under section 62.[34]

Issue No.2 The extension of time under Section 43(6).

Ground 4

[73]      On this ground of appeal it is submitted that the trial judge erred in law in holding that the Chief Marshal had properly exercised his discretion under section 43(6) to extend the time for payment when there was no evidence to show that St. Hill was given an opportunity to object to the extension.  A question of interpretation again rises.

            Section 43(6) affords the Chief Marshal a discretion to extend the period of 3 months by a further period not exceeding 6 months.  By subsection (7) a party who objects to the extension may object to the Chief Marshal within 7 days of the grant of extension.  Where the Chief Marshal is notified of an objection under subsection (7) he is under a duty to refer that objection to a judge in Chambers for final determination.

[74]      Mr. Connell submits that section 43(6) imposes a mandatory duty, despite its express use of the word “may”.

[75]      When construing statutory provisions where a discretion exists, courts tend to hold such statutory requirements to be discretionary vif any breach is followed by an opportunity (such as in this case) to exercise some judicial or official discretion which can [35] adequately compensate for the omission  -  see Bennion’s Statutory Interpretation (3^rd Edition 1997) page 37.

[76]      The pleadings in this case now assume central importance.  In his amended defence, St. Hill had pleaded that “the Chief Marshal failed to give notice to (St. Hill) an interested party that he, the Chief Marshal, proposed to grant an extension of time or that he had extended the time prescribed by the Court Process Act for payment of the balance of the purchase price” – (see para. 4 of the amended Defence).  The amended Defence then went on to plead that, as a result of the breach of statutory duty, St. Hill was deprived of his right to have his objection to the extension of time heard and determined by the judge in Chambers as prescribed by section 43(7) of the Act.

[77]      St. Hill gave oral evidence in support of that pleading.  At pages 99 to 101 of the record of appeal, he testified that he had received no notice of the extension and he did not object because he had no knowledge of the extension and he was unaware that an objection would have given him access to the court.  He even said that he was waiting to be taken to court for failing to vacate the property.  And he claimed that if he had been given an opportunity to appear in [36] court he would have been able to explain what he was doing to satisfy the judgments outstanding against him.

[78]      Mr. Connell made the proposition that a public official entrusted with legal powers could not validity exercise them without first hearing a person who was likely to be affected by the exercise of power.  And he further submitted that the question must always be whether, looking at the statutory procedure as a whole, each separate step is fair to the person affected.  He relies upon Ministry of Housing and Local Government v Sharp (1970) QB 223.

[79]      At page 206 Lord Denning MR, referring to a registrar of land charges, had expressed the view that:

“He is a public officer and comes within the settled principle of English law that, when an official duty is laid on a public officer by statute or by common law, then he is personally responsible for seeing that the duty is carried out.  He may, and often does, get a clerk or minor official to do the duty for him, but if so he is answerable for the transgression of the subordinate:  See Sanderson v. Baker where Blackstone J states the position of the sheriff…But, in any event, if the duty is broken, and injury done thereby to one of the public, then the public officer is answerable.  The injured person can sue him in the civil courts for compensation.”

[80]      Lord Denning said that the registrar had an absolute duty such as would make him liable for a junior clerk’s negligent search of the land charges register.  Cross and Salmon LJJ disagreed.[37]

            It is our opinion that Sharp is authority to show that public officers may be liable for the negligent acts or statements of juniors because the essence of Sharp was the liability of the government department for negligence in its administrative work.  There was no allegation of negligence in this appeal.  The key principle of Sharp is that if duties of a designated officer are in fact carried out by other officers, for example, of a local authority, the authority may be liable in negligence.  The junior employee of the local authority had negligently certified that no local land charges were registered against the land to be sold.  This case is not directly in point in this appeal.

[81]      St. Hill did not counterclaim damages against the Chief Marshal for the tort Breach of Statutory Duty nor was the public law doctrine of legitimate expectation pleaded.  What the amended Defence and the argument on this point amount to is that, upon a true construction of section 43(6) and (7) taken together, the statute case upon the Chief Marshal a duty to inform St. Hill as an interested party of the extension.  It is the contention of St. Hill that since he was not given notice of the extension, the Chief Marshal was in breach of his duty.  We have to construe the two subsections together.  Doing so, it would seem to us that the right of an interested party to object and [38] have his day in court would be an empty right unless there was some procedure for drawing it to his attention that he had a right to object.  He could only properly consider objecting if he knew of the fact of the extension.

[82]      To give the procedure intelligent meaning it must be that a duty to inform an interested party has to be implied in the statute.  The exercise of administrative powers no less than the exercise of judicial powers always carries an obligation to act fairly – see, for example, Lord Denning MR in Re Pergamon Press Ltd [1971] Ch. 388 at 399.  We think that the Chief Marshal was in error in failing to inform St. Hill that he had granted the extension.  St. Hill should have been told by the Chief Marshal that he had extended the time and it was open to him to object.  But we are in no doubt that the entire circumstances of this case warranted an extension of time.  Perhaps if St. Hill had been notified of the extension of time, he may have availed himself of the opportunity to go to court and this matter may well have been judicially resolved many years ago.  There is merit in this ground of appeal and we are not at all satisfied that St. Hill did not suffer prejudice as a result of his being kept ignorant of his right to object.[39]

Issue No. 3 Trespass or holding over – Ground 5

[83]      Here it is argued that the trial judge misdirected himself or erred in law in finding that St. Hill was liable in trespass.  Mr. Connell’s succinct submission is that St. Hill could not properly be liable for trespass since he continued in actual possession of the land.  He cites Halsbury’s Laws of England, Third Edition Vol. 38 at pages 744 and 745 for the principle that “a person having the right to possession of land acquires by entry the lawful possession of it and may maintain trespass against any person who, being in possession at the time of entry, wrongfully continues on the land.”  It is argued that Hutchinson never effected legal entry upon the land such as would vest possession in him.

 [84]     The argument on this ground of appeal has to be evaluated against the undisputed facts in order to determine the legal status of the parties at the time when the notice to quit expired.

The Legal Status of the Parties as at August 19, 1987

(i)  Hutchinson

            Under sections 37 and 38, it was the Chief Marshal’s duty upon levy being made on the property, to take and keep possession of it until it was sold and to request the title deeds from St. Hill.  When Hutchinson had paid half of the purchase price he was “entitled to [40] possession” of the property and to inspect and make extracts of the title deeds in possession of the Chief Marshal – (section 51).  The property had been knocked down to Hutchinson on July 1.  Six days later he had a statutory right to possession under section 51.  St. Hill’s property had been sold at a public auction and Hutchinson the purchaser was not given a statutory right to possession of it.  If by operation of law Hutchinson was not entitled to possession, in equity his position was also settled.

[85]      There is a welter of authority that if a purchaser is potentially entitled to specific performance of a contract of sale, be obtains an immediate equitable interest in the property contracted to be sold.

           Equity considers as done that which ought to be done and it does not matter that the date for completion has not yet arrived. In the eyes of Equity the purchaser becomes the owner from the date of the contract – per Sir George Jessell, M.R. in Lysaght v Edwards (1876) 2 Ch. D. 499 at p.506:

“It appears to me that the effect of a contract of sale has been settled for more than two centuries; certainly it was settled before the time of Lord Hardwicke, who speaks of the settled doctrine of the court as to it.  What is that doctrine?  It is that the moment you have a valid contract for sale the vendor becomes in equity a trustee for the purchaser of the estate sold, and the beneficial ownership passes to the purchaser…”[41]

[86]      See also Hadley v London Bank of Scotland [1865] EngR 585; 3 D.J. & S. 63, Shaw v Foster Law.Rep.5 H.L. 321 and Rose v Watson 10 H.L.C. 678.

            (ii)  The Chief Marshal

[87]      The Chief Marshal was vendor of St. Hill’s property.  As between himself and Hutchinson the contract of sale created a relationship of trustee and beneficiary in the sense that he was a kind of constructive trustee for the purchaser Hutchinson who was himself the beneficial owner – see again Lysaght v Edwards at p. 509, where the Master of the Rolls cites Lord Hatherley L.C. in Shaw v Foster to the effect that “the vendor becomes a constructive trustee for the purchaser.  It is but a constructive trust.”  He was a constructive trustee of the property until the contract was completed by a conveyance of the property.

            (iii)     St. Hill

[88]      In defiance of the notice to quit which expired on August 18, 1987, St. Hill remained on the property.  On the particular facts of this case we hesitate to call him a trespasser and, even though he was not strictly speaking a tenant, we think that his conduct is more analogous to that of a person holding over or a tenant at sufferance.  His right to remain on the property had terminated but he remained [42] in actual possession without the Chief Marshal’s consent.  We think that his continued occupation after notice that his property had been sold and after notice to quit made him akin to a tenant at sufferance.  His tenancy is to be implied by law.  He had possession of the property but no privity of estate.

[89]      Two old cases are authority for the view that a tenant at sufferance can be sued for use and occupation of the property – Bayley v Bradley (1848) 5 C.B. 396 and Hellier v Sillcox (1850) 19 LJQB 295.  It is our opinion that when he remained in the property after the notice to quit, a new contract came into existence between St. Hill and the Chief Marshal on the basis of periodic terms as to payment.  The compensation recoverable is in the nature of damages for breach of an implied agreement to pay for the use and occupation of the land.  St. Hill became liable to pay money for use and occupation of the land rather than mesne profits which are properly payable by a trespasser.

[90]      In Cruise v Terrell, [1922] 1 KB 664 Warrington L.J. said that “it is quite clear that a person holding over is not to be treated as a trespasser.” – p. 672.  In light of the view which we take that St. Hill was holding over rather than trespassing, the award of damages for trespass was erroneous.  But it matters not in the context of this [43] case, however, for St. Hill must have been liable for the payment of money for use and occupation.  Thus, even though the trial judge’s award of damages and mesne profits was technically an erroneous order, in reality St. Hill must be liable to pay a monetary amount for the period during which he held over or was a tenant at sufferance.

Issue No. 4 – Delay in rendering judgment (Ground 10)

[91]      Counsel complains that the long delay in rendering final judgment made that judgment unsafe because, he submits, there were errors in the judgment that were probably attributable to the delay and to allow it to stand would be unfair to the appellant.

[92]      The trial ended on September 17, 1993.  Five years later judgment was given on October 20, 1998 on which date the trial judge made declarations that Hutchinson had been properly declared the purchaser of the property and was entitled to vacant possession and declaring that the Chief Marshal was under an obligation to put him into possession and convey the legal estate to him.

[93]      Desiring to have the benefit of Counsel’s submissions on the consequential relief sought by Hutchinson, Chase J then adjourned the case to a date convenient to counsel.  That date was June 14, 1999.  Arguments were made and the final orders were pronounced on February 25, 2000.  We have not been given an explanation for [44] the inordinate delay between September 17, 1993 and October 20, 1998 and we do not take into account the period between this latter date and June 14, 1999 in so far as no earlier date was obviously convenient for counsel.  Essentially, what we are concerned with is a 5 year delay in handing down judgment.

[94]      A five year delay in giving judgment is clearly excessive on any score.  Peter Gibson LJ in Goose v Wilson Sandford & Co (Times Law Reports, February 19, 1998) was of opinion that excessively delayed judgments are potentially capable of undermining the rule of law.  That was a case where the delay by Harman J was 20 months.  Peter Gibson LJ alluded to some of the adverse consequences that could attend excessively delayed judgments.  For example, the successful party was denied justice during the period of delay; the loser’s confidence in the correctness of the decision was shaken when judgment was finally delivered; and there were factors of stress and anxiety associated with litigation to be considered.

[95]      In cases of inordinate delay in rendering judgment a Court of Appeal is obliged to examine the findings of fact with great care because the long delay might deny the Judge the opportunity of [45] considering properly the impression which witnesses had made on him during the trial.

[96]      In order to ground his submissions, Mr. Connell sought to point to certain “errors” on the part of the trial judge.  We reproduce those alleged errors from his skeleton argument and comment on them as we go along.

The Alleged Errors

[97]      (i)  Making orders purporting to bind the Chief Marshal who was  not a party to the case.  We deal with this matter at para [108].

[98]      (ii)  Finding that St. Hill was guilty of trespass.  If this was an error, it was one of law.  Judges at all levels will make mistakes on the law.  These mistakes are often no more than a genuine belief or judgment of what the law is.  It was a close run thing as to whether St. Hill was trespassing, holding over or was a tenant at sufferance.

[99]      (iii)  Making an order for mesne profits.  This was a logical order, having regard to the finding of trespass.

[100]    (iv) Failing to consider the legal effect of the Chief Marshal’s failure to execute a conveyance to Hutchinson.  We have already explained that while waiting for the conveyance, Hutchinson had an equitable interest in the property. The Chief Marshal was unable to give him legal ownership.  The Chief Marshal’s failure to give Hutchinson a [46] conveyance in no way operated to the prejudice of St. Hill.  It was Hutchinson who was disadvantaged.

[101]    (v)  Failing to assess the legal consequences of the Chief Marshal’s acceptance of St. Hill’s banker’s cheque.  The cheque was accepted by Yearwood & Boyce not the Chief Marshal.  The trial judge found that Hutchinson became entitled to possession on July 1, 1987 by operation of law and became in equity the owner of the property.  At page 34 of the record, the trial judge held that after St. Hill’s tender of the cheque the cancellation of the sale was a matter for negotiation and required the sanction of the court.  Implicit in this finding was the clear indication that the trial judge had indeed addressed his mind to the consequences of the acceptance of the banker’s cheque and the response to the next complaint.

[102]    (vi) That the judge failed to consider the equitable rights of St. Hill.  What the judge was saying was that this whole matter should have been referred to the court for a determination of the rights of the three parties.  This was an eminently sensible suggestion on the part of the trial judge.

[103]    (vii) The judge was criticised for holding that Hutchinson became in equity the owner of the property.  For the reasons we have given earlier at (paras [83] to [85] this was a correct statement of the law.[47]

[104]    (viii) Finally, it was submitted that fair treatment was not given to  the appellant’s case.  We do not agree.  In particular, Mr. Connell argues that St. Hill’s evidence that he was not given an opportunity to object to the Chief Marshal’s extension of time under section 43(6) should have been weighed by the trial judge.  We have already dealt with the interpretation of section 43(6) and 43(7) and it is our view that, although the Chief Marshal had a discretion to extend the time, he was under a duty to inform St.Hill in order to give him an opportunity of objecting if he wished.  The trial judge held that the exercise of discretion to grant an extension of time was valid because the circumstances of the case warranted it but he did not make a specific finding that St. Hill should have been notified on the basis of a construction of section 43(6) and (7).

[105]    He did, however, find that St. Hill “suffered no prejudice whatsoever in the circumstances of this case by not being notified of the intention of the Chief Marshal to extend time for payment following the peculiar set of circumstances created by (St. Hill).” – p.30 of the record.  We do not consider that this finding was due to the inordinate delay in rendering the judgment.  It was an error in interpretation of the statute.  But it is not every factor which weighs with a judge that has to be identified and explained.  Lord Phillips [48] MR recently said in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605; [2002] 3 All E.R. 385 at 393 para [19].

“[19]  The issues the resolution of which were vital to the judge’s conclusion should be identified and the manner in which he resolved them explained.  It is not possible to provide a template for this process.”

[106]    The judgment of Chase J was of 33 pages; his written decision on the consequential relief was a further 9 pages.  We have found the judgment and the decision to have been carefully constructed and well reasoned.  The evidence was well documented and considered.  In fact the judgment and the subsequent decision have been particularly helpful to us in this appeal.  It is very apparent from the judgment why the trial judge reached the conclusions that he did.

What is the test?

[107]    The correct test to be applied when delay in giving judgment is a ground of appeal has been stated in Cobham v Frett (2000) 59 W.I.R. 161.  Lord Scott of Foscote delivering the advice of the Judicial Committee of the Privy Council said at p.170 “J”.

“In their Lordships opinion, if excessive delay, and they agree that twelve months would normally justify that description, is to be relied on in attacking a judgment, a fair case must he shown for believing that the judgment contains errors that are probably, or even possibly, attributable to the delay.  The appellate court must be satisfied that the judgment is not safe and that to allow it to stand would be unfair to the complainant.[49]

[108]    It is our opinion that the matters identified by counsel as errors are not errors properly so called and are not matters that are probably, or even possibly, attributable to the delay.  This ground of appeal must fail.  We reiterate, however, that it is part of the ethics of judicial office that decisions should be rendered in a timely manner for all the reasons mentioned by Peter Gibson LJ in Goose v Sandford.

Grounds 7, 8 and 9

[109]    These grounds can be dealt with shortly.  On ground 7, the complaint is that the trial judge erred in law in ordering St.Hill to give vacant possession to the Chief Marshal who was not a party to the action.  On ground 8 it is said that the trial judge erred in law in ordering the Chief Marshal to take steps to complete the contract by the execution of a conveyance to Hutchinson.  Ground 9 alleges that, by accepting St. Hill’s bankers’ cheque, the Chief Marshal frustrated the contract between himself and Hutchinson.

[110]    None of these matters was pleaded or argued in the court below and we cannot entertain them on this appeal.  Pleadings have a continuing pervasive effect in civil litigation.  They exert their [50] influence throughout the entire course of litigation, from trial to appeal.

The Orders to be Made

[111]    Turning now to a consideration of the types of order to be made, it will be necessary to examine the conduct of the parties and the realities of the changed circumstances that have occurred during the 15 years that this litigation has been in virtual gestation.

[112]    There is only one party whose conduct can escape censure.  That is Hutchinson.  It was left to him to commence legal proceedings but he has obviously suffered hardship, frustration and perhaps injustice as a consequence of the extraordinary delay in this matter.  He has been denied the use of a considerable sum of money ($176, 000) for 15½ years.  He was obliged to purchase an alternative property as his matrimonial home and, undoubtedly, he would have incurred additional expense in raising the purchase price of that property while at the same time being kept out of the use of the money which he had paid to the Chief Marshal.  In this regard we are astonished to learn that for the past 15½ years the Chief Marshal has allowed the money to remain on a non-interest bearing Bank account.

[113]    In our opinion the genesis of the problems in this matter was the satisfaction of the judgment debt by St. Hill through the re-tender of [51] his banker’s cheque to Yearwood & Boyce on August 18, 1987.  This circumstance clearly put the Chief Marshal in a quandary.  He knew not what to do.  He had already concluded a contract with Hutchinson.  Suddenly he found that St. Hill had liquidated the judgment debt by paying his banker’s cheque directly to the attorneys-at-law who had authorized the levy.  But surely a legal procedure was available by which the Chief Marshal could have sought the court’s assistance as a matter of urgency.  We fail to understand why he was not advised by the Solicitor-General’s department that they would bring on his behalf an urgent application for an order for possession against St. Hill or an Originating Summons seeking the High Court’s determination of the questions of law.  The facts were not in dispute and it seems to us that there was a golden opportunity for use of the Originating Summons procedure under the Rules of the Supreme Court.

[114]    If the Solicitor-General had sought the assistance of the High Court at an early stage, it is our judgment that this matter would have been laid to rest many years ago.  The Solicitor-General had a duty to seek to enforce the rights of the Chief Marshal by appropriate legal advice and action.  For his own part, the Chief Marshal tried to assure Hutchinson that he would honour his contractual and [52] statutory responsibilities to give him a conveyance and vacant possession of the property – (see the letter of August 24, 1987 referred to at para [16]).  But as one unskilled in the law, the Chief Marshal ought to have been given the assistance and expertise of the Solicitor-General’s department.  Moreover, the filing of appropriate legal proceedings would necessarily have provoked St. Hill into action.  He would then have been able to make whatever representations he deemed necessary.

[115]    We recognize that St. Hill himself could have initiated legal proceedings by way of an objection under section 43(7) of the Act but, for the reasons which we have given at para [80], it would have been asking too much of a layman to expect him to construe subsections (6) and (7) in such a way as to imply a duty on the part of the Chief Marshal to notify him of his right to object to the extension of time.  Indeed, in the circumstances of this case, St. Hill’s evidence that he was waiting to be taken to court by the Chief Marshal was entirely credible especially in the light of the Chief Marshal’s threat of legal proceedings in his letter of August 5, 1987 – see para [11] supra.  St. Hill’s continued occupation of the property, although understandable, was nevertheless wrongful.  But the failure of the Chief Marshal and the Solicitor-General to take [53] steps to obtain vacant possession of the property was the predominant cause of St. Hill’s continued use and occupation of the property.

[116]    The appellant asks that the orders of Chase J (para [32]) be set aside.  The effect of the first and second orders was similar to an order for specific performance, although that remedy was not sought in the Writ.  But there was a claim for damages.  We are not satisfied that, after 15 years, an order that is tantamount to an order for specific performance would be just.  On the contrary, we are of the view that monetary compensation would be an adequate remedy.  We will therefore vary the orders of the trial judge requiring the Chief Marshal to complete the sale to Hutchinson and ordering St. Hill to give vacant possession of the property.

[117]    We shall also vary the award of damages for trespass and substitute an order for payment of money for use and occupation of the property.  To the extent that it is our considered judgment that St. Hill’s continued use and occupation of the property were permitted largely because of the failure and inaction on the part of the Chief Marshal and the Solicitor-General’s department to take urgent legal proceedings, we shall vary the apportionment of liability between St. Hill and the Attorney-General.[54]

Disposal

[118]    The appeal is allowed in part in the light of our decision on ground 4 and the matters to which we have referred at paras.[114] and [115].  We therefore order and direct as follows:

(i)         That the Attorney-General, the first respondent, cause to be paid to Hutchinson, the second respondent, the sum of $176, 000 together with interest thereon at the rate of 6% per annum from November 5, 1987 to February 25, 2000 and, thereafter, at the rate of 8% until payment.

(ii)        That the Attorney-General, the first respondent, cause to be paid to Hutchinson, the second respondent, the sum of $2, 314 together with interest thereon at the rate of 4% per annum from November 5, 1987, to February 25, 2000 and thereafter at 8% per annum until payment.

(iii)  That the appellant, St. Hill, and the first respondent, the Attorney-General, are jointly and severally liable to pay the second respondent, Hutchinson an amount as money for use and occupation of the property calculable at the rate of $2 000 per month with effect from November 25, 1987 until payment. Liability between the [55] Attorney-General and St. Hill is apportioned 75% as to the Attorney-General and 25% as to St. Hill.

(iv)       There will be interest on the said monthly sum of  $2, 000 from November 25, 1987 to February 25, 2000 at 4% per annum and, thereafter, at 8% per annum until payment.

(v)                The first respondent, the Attorney-General and the appellant St. Hill must pay the costs of the second respondent, Hutchinson, on the same basis of apportionment as is provided for in paragraph (iii) above, certified fit for two Attorneys-at-Law.[56]

Chief Justice

Justice of Appeal                                                          Justice of Appeal (ag)

Context