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Barbados Supreme Court |
] [Hide Context] 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
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 1st 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 4th, 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 6th, 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 1st
[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
[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 27th 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
[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 16th 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 (3rd
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
(i)
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)
] [Hide Context]
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