The Attorney General of Grenada v Financial Investment & Consultancy Services Ltd
| Jurisdiction | Grenada |
| Judge | Webster JA,Davidson Kelvin Baptiste,Justice of Appeal,Gertel Thom |
| Judgment Date | 18 April 2018 |
| Judgment citation (vLex) | [2018] ECSC J0418-5 |
| Court | Court of Appeal (Grenada) |
| Docket Number | GDAHCVAP2016/0038 |
| Date | 18 April 2018 |
EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL
The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal
The Hon. Mde. Gertel Thom Justice of Appeal
The Hon. Mr. Paul Webster Justice of Appeal [Ag.]
GDAHCVAP2016/0038
Mr. Thomas Astaphan, QC with him Mr. Dwight Horsford, Solicitor General and Ms. Marissa Johnson, Crown Counsel for the Appellant
Mr. James Bristol for the Respondent
Civil appeal — Interlocutory appeal — Provisional attachment of debt — Enforcement of judgment against the Crown by way of attachment — Rules 50 and 59 of the Civil Procedure Rules 2000 and section 21(4) of the Crown Proceedings Act, Cap. 74 of the Laws of Grenada — Principle upon which a Court of Appeal will hear constitutional point — Absence of judge's reasons for decision — Whether the Government of Grenada can contract out of or waive its immunity from execution against its property granted by rules 50.2(3) and 59.7(1) of the Civil Procedure Rules 2000 and section 21(4) of the Crown Proceedings Act
Between 2001 and 2004 the Government of Grenada issued bonds to the respondent and other persons to secure the repayment of monies advanced to the Government. The bonds were issued pursuant to a trust deed dated 7 th November 2001 between the Government and the National Commercial Bank of Grenada (“The Trust Deed”). By clause 7.03 of the Trust Deed the Government agreed to waive immunity from execution against its property. The trustee was empowered to enforce the terms of the bonds in the event of default in repayment by the Government. The Government defaulted on the repayments to the respondent and on 21 st May 2015, the respondent obtained a judgment in default against the Permanent Secretary in the Ministry of Finance for the sum of $3,807,073,00 plus interest at 6% per annum (“the judgment debt”). On 9 th March 2016, the learned judge granted an order of mandamus ordering the Permanent Secretary in the Ministry of Finance to pay the judgment debt to the respondent.
The Government did not comply with the order of mandamus and the respondent filed two applications in the High Court against the appellant. In the first application, the respondent applied, without notice to the appellant, for a provisional attachment of debts order under rule 50 of the Civil Procedure Rules 2000 (“CPR”). The learned judge made the provisional order and directed a further hearing inter partes on 15 th December 2016.
The second application was for an order committing the Permanent Secretary in the Ministry of Finance to prison for his failure to comply with the terms of the order of mandamus. On 20 th July 2016, the Government made a part-payment of $403,252.00 on account of the judgment debt. On the same day, the learned judge made an order on the committal application directing the Government to liquidate the balance of the judgment debt within one year.
The appellant was granted leave to appeal against the Provisional Attachment Order. The main complaints of the appellant are that the learned judge erred in law and misdirected herself in: (a) granting the Provisional Attachment Order without considering provisions for the Crown's rights under CPR rules 50.2(3), 59.7(1), and 21(4) of the Crown Proceedings Act (“the CPA”); (b) making the provisional attachment order having already made the order of mandamus for payment of the judgment debt; and (c) making a provisional attachment order on the same day as making an order for the liquidation of the judgment debt in one year in the committal proceedings. Further, the appellant disputed the respondent's right to raise a constitutional point for the first time on appeal.
Held: dismissing the appeal and awarding to the respondent 80% of its costs to be assessed if not agreed within 21 days of the date of this order, that:
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1. The attachment of debts provisions in rule 50.1(1) of the CPR do not, by virtue of rules 50.2(3) and 59.7(2), apply to the payment of debts due or accruing due from the Crown and such debts are immune from execution. Section 21(4) of the CPA is to the same effect.
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2. The immunity provided by the CPR and the CPA is not absolute and can be waived by the Crown. The Crown and its officers are the sole beneficiaries of the immunity and the Crown can contract out of or waive its right to the restriction against enforcement contained in the rule and the section. By agreeing to clause 7.03 of the Trust Deed the Crown expressly waived its right to rely on the immunity that it enjoys from execution against its property by the bondholders.
Rules 50.1(1), 50.2(3), 59.7(1), 59.7(2) of the Civil Procedure Rules 2000 applied; Section 21(4) of the Crown Proceedings Act, Cap. 74 of the Laws of Grenada considered; Guardians of the Poor of Salford Union v Dewhurst [1926] AC 619 considered; Aribisala v St James Homes (Grosvenor Dock) Ltd [2007] EWHC 1694 (Ch) applied; Wilson v McIntosh [1894] AC 129 applied; Bahamas Oil Refining Company International Ltd. v the owners of the Cape Bari Tankschiffahrts GMBH & Co KG [2016] UKPC 20 followed; Gairy (Jennifer) v The Attorney General of Grenada (1999) 59 WIR 174 followed.
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3. This Court does not have jurisdiction to entertain an appeal on a constitutional point unless it has been dealt with in the High Court. The point can only be considered by this Court by way of appeal from the lower court's decision. There is no transcript or evidence of what transpired in the lower court and therefore no way to determine if the issue was even raised. Further, there is no counter-notice of appeal by the respondent to the effect that this is an additional ground for upholding the learned judge's decision and there is no decision by the learned judge on this issue from which to appeal.
Walker and another v R [1994] 2 AC 36 applied.
Webster JA [AG.]: This appeal considers the issue whether the Government of Grenada can contract out of or waive the immunity from execution against its property granted by rules 50.2(3) and 59.7(1) of the Civil Procedure Rules 2000 (“CPR”) and section 21(4) of the Crown Proceedings Act (“CPA”). 1
On 9 th March 2016, the learned judge granted an order of mandamus ordering the Permanent Secretary in the Ministry of Finance to a pay to the respondent the sum of $3,807,073.00 plus interest at 6% per annum, being the amount of a judgment obtained by the respondent against the Permanent Secretary on 21 st May 2015 (“the judgment debt”). There is no appeal from this order although there was an appeal against the learned judge's decision to dismiss the appellant's preliminary objection to the hearing of the application for an order of mandamus. That appeal was dismissed in a judgment delivered by this Court on 13 th March 2018. 2
Following the grant of the order of mandamus the respondent filed two applications in the High Court against the appellant. In the first application the respondent applied without notice to the appellant for a provisional attachment of debts order under CPR 50. The learned judge granted the Provisional Attachment Order on 22 nd July 2016. The provisional order had the effect of attaching in the hands of the named garnishees monies due and accruing to the Government in order that such sums be made to answer the judgment debt. The provisional order directed a further hearing inter partes on 15 th December 2016.
The second application was for an order committing the Permanent Secretary in the Ministry of Finance to prison for his failure to comply with the terms of the order of mandamus. On 20 th July 2016, the Government made a part payment of $403,252 on account of the judgment debt. On 22 th July 2016, the same day as the Provisional Attachment Order, the learned judge made an order on the committal application directing the Government to liquidate the balance of the judgment debt within one year which effectively meant by 22 nd July 2017.
On 29 th November 2016, a single judge of this Court extended the time for applying for leave to appeal and granted leave to appeal against the Provisional Attachment Order.
The learned judge did not give reasons for her decisions and, as in the related appeal about the preliminary objection to the mandamus order, 3 this Court must decide the issues in this appeal de novo without the benefit of the judge's views.
The notice of appeal lists the following grounds of appeal:
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(1) The learned judge erred in law and misdirected herself entirely in granting the provisional garnishee order without having regard to the provisions of CPR 59.7(1) which expressly removes attachment of debts proceedings from money judgments against the Crown. The learned judge thereby made the garnishee order without the relevant jurisdiction to do so.
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(2) The judge erred in law and misdirected herself in making the provisional garnishee order having already made an order of mandamus on 9 th March 2016 to secure payment of the judgment debt.
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(3) The judge erred in law and misdirected herself in making the provisional garnishee order on 22 nd July 2016 in circumstances where the court on the same day in the committal proceedings made an order for the liquidation of the judgment debt by a specific date in 2017.
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(4) The judge erred in law and misdirected herself entirely in granting the attachment order in all circumstances.
The issues that arise from the grounds of appeal and counsels' submissions are:
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(a) The Crown's rights under CPR 50.2(3) and 59.7 and section 21(4) of the CPA and the effect of waiver on those rights (ground 1).
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(b) The timing of the Provisional Attachment Order (grounds 2 and 3).
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(c) The constitutionality of section 21 of the CPA.
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