IN THE MATTER OF:-
ON APPEAL FROM THE MAGISTRATES COURT GRAND TURK
CAROL ANN MUSGROVE APPELLANT
COURALIN JOSEPH MUSGROVE RESPONDENT
1. This is a ruling on a preliminary point taken on the appeal of Carol Ann Musgrove from a decision of the Chief Magistrate, His Honour Kwasi Bekoe. The decision of the Learned Magistrate was handed down on 2nd February 2004.
2. The facts which give rise to the Appeal and the preliminary issue may be briefly stated. The Appellant, Mrs. Musgrove is 52 years of age. She married the Respondent. Mr. Couralin Musgrove in 1998. The Respondent is now some 66 or 67 years of age. The parties separated for the final time on 10th January 2003.
3. Following their separation, the Appellant applied to the Magistrate's Court for an order that the Respondent make provision for her by way of periodical payments in the sum of $500.00 per month. The application was made under Section 3(a) of the Domestic Proceedings Ordinance. Chapter 89. By his order of 2nd February, the Learned Magistrate dismissed the Appellant's application.
4. On 6th February, the Appellant's Attorney. Mr. J Katan of Messrs. McLeans, wrote to the Respondent's Attorneys, the Registrar of the Supreme Court and to the Magistrate's Court giving notice of the Appellant's intention to Appeal and, where relevant, enclosing the General Grounds of Appeal. The letter to the Magistrate's Court, which was marked for the attention of The Clerk to the Learned Chief Magistrate, also made enquiry as a matter of urgency, whether the Appellant needed to enter into any security with the Magistrate's Court. The letter identified Monday 9th February as the last day for lodging the appeal.
5. The 6th February was a Friday. The Appellant's attorney's letters were dispatched by facsimile transmission (fax) but the letter to the Magistrate's Court was only sent at 4.39pm, after the close of business. Although there was no specific evidence on the point, it might fairly be assumed that the fax was not physically read by anyone until the morning of 9th February.
6. Section 30 of the Domestic Proceedings Ordinance. Chapter 89, provides that an appeal against any order of the Magistrate lies to the Supreme Court. Section 30(6) then reads:
“Part XIV of the Magistrate's Court Ordinance other than Sections 161, 162, 164, 171, 177, and 178, shall apply in relation to appeals under this section as they apply in relation to appeals from decisions of the Magistrate in exercise of his jurisdiction under that Ordinance."
7. Section 163 of the Magistrates Court Ordinance reads:
“The appellant within five days after the day on which the Magistrate has given his decision shall serve a notice in writing on the Magistrate and on the other party of his intention to appeal and also the general grounds of his appeal, and shall enter into satisfactory security before the Magistrate for the due prosecution of the appeal in the Supreme Court, and to abide the judgement of the said Court thereon."
8. Counsel for the Respondent, Mr. Clayton Greene, submits to the Court that in the light of the history as indicated and in view of the provisions of Section 163 of the Magistrate's Court Ordinance, the Appellant failed to serve notice or to enter into a security in accordance with the provisions of Section 163 and is therefore barred from pursuing any appeal from the decision of the learned Magistrate. It was that primary submission that formed the basis of the preliminary issue argued before me.
9. Mr. Greene's supporting submissions were as follows:
(a) That the wording of section 163 is mandatory. The Magistrate's Court is a creature of statute and it is the statute alone therefore which governs the appeals procedure. Neither the Magistrate's Court nor the Supreme Court is vested with any discretion to do other than follow the provisions of the statute. If, therefore, there has been a failure to comply with the provisions of the section, that failure must be fatal to the further pursuit of any appeal.
(b) In the present case, the provisions of Section 163 required that proper service on the Magistrate of the notice and grounds of appeal be effected by close of business on 7th February 2004. Section 163 also required the Appellant to enter into a satisfactory security before the Magistrate by the same time. (I pause at this stage to record that it was common ground between the parties that 7th February was indeed the relevant date as marking the expiry of the five day period.)
(c) The service effected in this case of the notice and grounds of appeal, namely by fax directed to “The Clerk to the Learned Chief Magistrate" was defective in two respects. Firstly because service by fax of an originating process does not constitute proper service of an originating process: and secondly because the section requires service upon the Magistrate and not his Clerk. Mr. Greene submitted that strictly interpreted the section would seem to require personal service upon the Magistrate or at the very least service through the postal service.
(d) The Appellant had additionally failed to take any steps whatsoever to enter into a satisfactory security before the Magistrate. At best, the Appellant by the fax sent on 6th February, had asked whether it was necessary to enter into any security. In so doing the Appellant was not only endeavouring to shift to the Magistrate the burden of compliance with the section but was also inviting the Magistrate to exercise a power which the section does not confer upon him, namely to waive the requirement for a security.
10. In support of his submissions Mr. Greene relied upon the case of Codney Capron v The Crown ref CR/AP19/2002, a decision of the Court of Appeal in this jurisdiction. That was a criminal case where the Appellant sought leave to appeal out of time on the basis that the Magistrate had failed to inform him of his right of appeal. The Chief Justice held that he had no power to extend time under section 163. The matter was subsequently heard in the Court of Appeal. Zacca P. having observed that there is no statutory provision enabling the Supreme Court to extend time went on to say:
'‘The right of appeal from the Magistrates Court is given by statute. In the absence of any statutory provision providing for the extension of time within which to appeal, the time limit stated in S 163 is a condition precedent to appealing. The Supreme Court, therefore, has no jurisdiction to extend the time for appealing, there being no statutory provision given to the Court for an extension of time. The Chief Justice was therefore correct in holding that he had no jurisdiction to extend the time for appealing.”
11. Mr. Greene also referred me to the authorities referred to in Capron which in this respect at least take the matter not a great deal further.
12. In support of his submission that service by fax was ineffective to constitute effective service. Mr. Greene submitted that an appeal in effect constituted an originating process and that service by fax therefor was inadequate. Although he conceded that the Ordinance itself is silent as to how service should be effected, he pointed to Order 65 of the Rules of the Supreme Court as giving an indication of the circumstances in which service by fax is acceptable: and submitted that those circumstances had not been shown to pertain to the present case. Thus, for example, there was no evidence before the Court that the Magistrate's Court had agreed in general terms to accept service by fax either in this specific case or in general. If service by fax was inadequate then on any view the Appellant had failed to comply with the requirements of Section 63.
13. In his ultimate submission Mr. Greene pointed out that it did not appear that the Appellant had taken any steps whatsoever to enter into a satisfactory security before the Magistrate. The Appellant had done no more than to inquire whether it was really necessary, which was inadequate to comply with the requirements of Section 163. Therefore and on this ground also. Mr. Greene submitted that the appeal should not be allowed to proceed.
14. On behalf of the appellant, Mr. Katan submitted that the starting point for determining the Court's powers is Order 55 of the rules of the Supreme Court. Order 55 rule 1 provides:
’‘Subject to paragraphs (2), (3) and (4), this Order shall apply to every appeal which by or under any enactment lies to the Supreme Court from any court, tribunal or person.''
Order 55 rule 1 (2) then provides:
“This Order shall not apply to an appeal under Part XIV of the Magistrates Court Ordinance (Appeals in Criminal Cases).
Mr. Katan submits therefore that it is clear that the Rules apply to the instant appeal as firstly it is not a criminal appeal; and secondly and in any event the appeal is not made under Part XIV of the Magistrates Court Ordinance. It is made under the Domestic Proceedings Ordinance. It is merely the mechanics of the appeal that cause the incorporation of Section 163. Therefore, he submits, once the Supreme Court is seised of the case, then the Rules of the Supreme Court apply and under those rules the Court has an inherent jurisdiction to extend time for an appeal-see Order 3 rule 5. Mr. Katan submitted that support for his submission was to be derived from the Bahamian case of Rolle v. Rigby (1999) BHS J. No. 28, a decision of the Bahamas Supreme Court. Section 52 of the Bahamas Magistrates Court Act is, save for the time limit provided, very similar to Section 163.. In Rolle, and whilst the appellant gave notice of appeal within the prescribed time, no steps were taken to enter into a security. The appellant contended that the Magistrate could have sought a security if such had been required, but Lyons J. disagreed holding that an approach of that sort would put the burden of compliance with the Act on the Magistrate which was clearly not the intent of the Act. However. Lyons J. allowed an extension of time for compliance with Section 52 on the basis of the general supervisory powers of the Supreme Court. At paragraph 32 of his judgement he granted the extension: “Utilising this Court's jurisdiction in the widest possible manner...".
15. From the judgement of Lyons J. it is not clear where the supervisory powers of the Bahamas Supreme Court are derived from. Mr. Katan submits that had they had a statutory basis then the relevant section would have been referred to. In the absence of such a referral. Mr. Katan submits that they arise under the inherent jurisdiction of the Court. A similar jurisdiction he submits must exist in Turks and Caicos Supreme Court. Indeed Mr. Katan goes further and submits that Sections 117 and 118 Of the Magistrate's Court Ordinance are sufficient to vest in the Magistrate's Court the inherent jurisdiction he submits resides in the Supreme Court.
16. On the question of service by fax and its adequacy. Mr. Katan drew my attention to Section 23 of the Magistrate's Court Ordinance where the service required is specifically described as personal service. In contradistinction. Section 163 does not descend into particulars. Therefore, submits Mr. Katan, personal service is not a prerequisite of Section 163. It would in any event be ludicrous, he submits, to suggest that if following the delivery of a decision the Magistrate went on holiday, that in those circumstances one would have to pursue the Magistrate in order to effect service. Furthermore, and in this day and age and considering in particular the geography of the Turks and Caicos, it would be anachronistic in the extreme to disallow service by way of fax on the Courts. The Courts receive dozens if not hundreds of faxes on a weekly basis without demur and therefore the spirit if not the letter of Order 65 of the Rules of the Supreme Court are satisfied.
17. Dealing with the issue of entry into security, Mr. Katan submits that a distinction must be drawn between criminal and civil cases. In criminal cases there is a clear need for appearance before the Magistrate as the question of bail may arise in addition to any security to ensure attendance at the appeal. No such considerations arise in relation to a civil appeal. Mr. Katan submits that in the present case the question of security was addressed by the fax of 6th February. No answer was received to that enquiry but to suggest that it should therefore be necessary personally to attend before the Magistrate is simply not commensurate with a modern legal service. Furthermore the fact that the period under Section 163 expired on a Saturday, thus ensuring that no response from the Magistrate could be received is not a matter for which the Appellant is responsible. It arises solely as a result of a strict construction of the Interpretation Ordinance. To debar the appellant from pursuing her appeal solely on that basis would, submits Mr. Katan, be manifestly unfair.
18 In addition Mr. Katan submits that the case of Michael v Cowland (1977 ) 2 All ER 328 is of relevance. Although in that case the prospective appellant was disbarred from pursuing his appeal having failed to comply with the time limits. Sir George Baker P. drew a distinction between the powers of the Court where an application had already been made and where no such application had been made.
“It seems to me that although the court has power to extend the time in respect of the actual stating of the case once the application has been made, this court has no power to extend the time in respect of the application itself.” Per Baker P at P 330.
Mr. Katan submits that since the question of the security had been raised by the fax of 6th February, the procedure had thus been initiated-i.e. the application had been made and it was open thereafter to the Court to deal with the matter beyond the five day period.
19. I deal first with the question of personal service. I agree with Mr. Katan that personal service upon the Magistrate is not a prerequisite of Section 163. The Section does not specifically require personal service in the way that personal service of a summons under Section 23 is required. Further the fact that the fax to the Magistrate's Court was marked for the attention of the Clerk to the Chief Magistrate is similarly a matter I hold not fatal to the Appellant. The Section cannot have contemplated that the Magistrate should personally open correspondence on this sort of issue. It is sufficient service on the Magistrate in my view if the notice is directed as in this case for the attention of the Magistrate's clerk in the sure expectation that the Magistrate's attention will be drawn to the notice. To hold otherwise would simply not reflect the realities of modern office practice.
20. The question of whether service by fax is adequate. I have found more troubling. I come to the conclusion, however, that it is. Section 163 does not prescribe how service should be effected. The rules of service were developed to ensure that proceedings should not take place without all those interested having notice of the proceedings. Thus it is that under the Rules of the Supreme Court, the rules have been amended from time to time to keep pace with modern methods of communication. Indeed, under those rules (Order 65 rule 5 (2B)), service by fax is specifically provided for in certain circumstances-i.e. that the relevant parties act by attorneys, that they consent to service by fax, that the fax is to the business address and that hard copies are delivered as soon as practicable. I believe that I am entitled to take judicial notice of the fact that the Courts deal quite happily and on a daily basis with faxes. It would be an insult to the court staff to suggest that they are any less capable than the staff of an attorney's office to deal with faxes. I agree, therefore with Mr. Katan that to the extent that guidance can be derived in this case from Order 65, service by fax on the Courts falls within the spirit of Order 65 if not the precise letter and comprises adequate service within the provisions of Section 163.
21 It is accepted by Mr. Katan that prior to the expiry of the five day period nothing more was done to enter into a security before the Magistrate than to inquire whether or not a security was in fact required. I am quite satisfied that in that respect the Appellant failed to comply with the provisions of Section 163. As anomalous as that provision may be in respect of civil appeals, nevertheless the Section is mandatory in form. Furthermore, I accept Mr. Greene's submission that the Appellant could not discharge the burden imposed upon her by inquiring whether a security was really necessary, as that would then have imposed the burden of compliance upon the Magistrate. As pointed out by Lyons J. in Rolle, that would be to run counter to the intent of the Ordinance. I have considerable sympathy with Mr. Katan when he points out that the final day before expiry of the time period was a Saturday thus leaving the Appellant with no opportunity to clarify matters with the Magistrate, but sympathy is all I can express.
22. Is the failure, therefore, to comply with Section 163 fatal to the pursuit of this appeal? With considerable regret I have come to the conclusion that it is. Albeit that this is a civil appeal. I do not see how that can distinguish the case from the decision in Capron v The Crown, referred to earlier. I do not accept that Order 55 of the Rules of the Supreme Court can come to the Appellant's assistance as urged by Mr. Katan. The rules are themselves secondary legislation. They cannot affect the provisions of primary legislation unless the primary legislation which gave birth to them in some way confers them with that authority. Neither the Supreme Court Ordinance or the Civil Procedure (Amendment) Ordinance purport to confer on the rules that sort of authority. It may be that by virtue of rules (1) and (2) of Order 55 appeals under the Domestic Procedure Ordinance prima facie fall within the ambit of the rules but rule (4) reads:
"The following rules of this Order shall, in relation to an appeal to which this Order applies, have effect subject to any provision made in relation to that appeal by any other provision of these rules or by or under any enactment.” (My emphasis)
The Court's power to extend time therefore which undoubtedly it possesses under Order 3 rule 5 is a power in relation to appeals which can only be exercised subject to the provisions of Section 163 of the Magistrate's Court Ordinance. Section 163, however, is mandatory. It does not provide the Court with any discretion. It sets a condition precedent to the appeal process. If that condition precedent is not met there is nothing in the Ordinance which permits of any discretion either by the Magistrate's Court or the Supreme Court; and since the Rules of the Supreme Court are themselves expressed as subject to the provisions of any other enactment. I do not see how those Rules can therefore purport to override the otherwise express provisions of Section 163.
23. I have carefully considered the decision in Rolle. Even if Lyons J was acting under some inherent jurisdiction of the Bahamas Supreme Court, it is a type of jurisdiction which I do not find to be resident in the Supreme Court of the Turks and Caicos Islands. In any event, and while the authority is persuasive. I would feel bound by the decision in Capron which I do not feel can be distinguished on the simple basis that it was a case dealing with a criminal appeal.
24. Nor am I persuaded by Mr. Katan's submissions arising out of the decision in Michael v Cowland. Until the condition precedents to appealing had been fulfilled there was no active appeal. The passage of Baker P.’s judgement upon which Mr. Katan relied therefore, I do not find to be of any great assistance.
25 The decision that I have reached therefore, with some considerable regret is that the Appellant failed to enter either within the prescribed time or at all into any adequate security before the Magistrate. Having failed to do so, it follows that the Appellant has failed to comply with the provisions of Section 163. In that the requirements of Section 163 impose condition precedents to appealing, the failure to comply acts as a bar to the pursuit of the appeal. I find that there is no jurisdiction in the Supreme Court to grant the Appellant any extension of lime to enable compliance. On the preliminary issue raised by the Respondent, it follows that I find for the Respondent and hold that the Appellant has no basis upon which to pursue this appeal.
25. I emphasise that I reach this decision with regret. It seems to me that the Appellant is the victim of legislative provision which, in a civil context, is of little, if any, relevance to the conduct of civil litigation today. It is however trite to say that I have to apply the law as I find it to be.
26. As indicated to Counsel at the end of the preliminary hearing, I will deal with outstanding matters such as costs during the week commencing Monday 5th April 2004 at a time mutually convenient to all. As also indicated. I am content to deal with those matters by telephone conference if the parties are also content that I should do so.
Acting Chief Justice