Hodd v Mercer

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Redhead, J.
• Judgment Date: 09 July 1993
• Neutral Citation: MS 1993 HC 8
• Docket Number: 118 of 1993
• Date: 09 July 1993

High Court

Redhead, J.

118 of 1993

Hodd

and

Mercer

Appearances:

Mr. Jean Kelsick for the Plaintiff.

Mr. Samuel Eartey for the Defendant.

Practice and procedure — Discharge of order on ex parte application — Order obtained exparte for arrest of defendant under provisions of Debtors Act, Cap. 23 — Plaintiff arrested and brought before Registrar — Defendant unable to leave jurisdiction — Application for stay pending appeal — Whether judge has authority to make order — Whether warrant to arrest could be issued — Whether court has jurisdiction to vary order made by another judge.

Redhead, J.

1 On 23rd June, 1993 Mr. Jean Kelsick Learned Counsel for the Plaintiff, appeared before Georges J. in Chambers and obtained an order on an exparte application. The order is in the following terms:

“IT IS HERESY ORDERED that a Warrant of Arrest do issue forthwith if not sooner for the apprehension of the Defendant Cadman Mercer who on arrest is to be served with a copy of the Writ of Summons filed on 18th June, 1993 and a copy of the Affidavit of Maureen Hodd filed on even date and is to be brought before a Judge or the Registrar of the High Court to be dealt with in accordance with the Provision of Section 6 of the Debtors Act, Cap. 23”.

2 This Order wan obtained by virtue and in accordance with the Provisions of the Debtors Act Chapter 23 of the Laws of Montserrat. (Hereinafter referred to as the Act) Section 6(2) of the Act provides as follows:

“Section 6(2) — Where the Plaintiff in any action in the Court in which if brought before the commencement of the Act, the Defendant would have been liable to arrest, proves at anytime before final judgment by evidence on oath, to the satisfaction of a Judge, that the Plaintiff has good cause of action against the Defendant to the amount of twenty four ($24.00) dollars or upwards and that there is probable cause for believing that the Defendant in about to quit the Colony unless he be apprehended, and that the absence of the Defendant from the Colony will materially prejudice the Plaintiff, in the prosecution of his action, such Judge may, in the prescribed manner order such Defendant to be arrested and imprisoned for a period of not exceeding six (6) months, unless and until he has sooner given the prescribed security, not exceeding the amount claimed in the action that he will not go out of the Colony without the leave of the Court”.

3 The application before the Judge was made primarily on an Affidavit deposed to by Maureen. Hodd. The Plaintiff in her Affidavit deposed that the Defendant rented a house from her. She was the Agent for the owner of the house. The rental was $1,000.00 a month.

4 The Defendant is in arrears of rent for period October 1992 to June 1993 and owes for water, electricity and telephone bills in a sum of $9,000.00 amounting to a total of $18,000.00.

5 That the Defendant now resides in Canada and has said that he intends to leave Montserrat at anytime and that he does not intend to return as he has found permanent employment in Canada.

6 By 8 paragraph of her Affidavit the Plaintiff deposes as follows:

7 “I therefore now respectfully ask this Honourable Court to issue an Order that the Defendant be arrested and detained in Montserrat in accordance with Section 6 of the Debtors Act, Cap. 22”.

8 The Defendant; was arrested, brought before the Learned Registrar of the Supreme Court, his passport and birth certificate were taken away from him. He therefore cannot leave the Jurisdiction.

9 On 1 July, 1993, Mr. Barzey filed a Summons on behalf of the Defendant seeking an Order that the Order of Georges, J. granted on 23 June, 1993 “be stayed pending an appeal, which was filed on 29th day of June, 1993 and which is expected to be heard in the month of October 1993”.

10 This Summons was supported by an Affidavit deposed to by the Defendant. In the Affidavit the Defendant deposed as follows:

• 2. I am a resident of Canada and I have been living in Montserrat since the year 1987 managing the family business of Charles Mercer Limited.

• 3. The Company has gone into liquidation and as a result I am unemployed.

• 4. I do not deny that money is owed to the Plaintiff, but not the amount. claimed.

• 5. I do not deny that I wish to leave Montserrat and return to Canada, but my reason for wanting to leave is not to evade the payment of the debt owed, but rather to find work which would enable me to meet my obligations.

• 6. I have secured employment in Canada and I was due to start work on Monday the 28th day of June, 1993.

• 7. I have filed an appeal on 29th day of June, 1993 against the Order of the judge directing that I be apprehended and taken before a Judge or the Registrar to be dealt with in accordance with Section 6 of the Debtor Act, Cap. 23.

• 8. It is my intention to return to Montserrat in the future as I have instructed my Solicitor to commence proceedings against several persons who are in debted to me for monies loaned to them.

• 9. As a result of the foregoing, I request that the Order of the 18th June (J.C.) 1992 be stayed until the hearing of the appeal and that I be allowed to leave the Colony for the reasons stated.

11 Mr. Barzey, Counsel for the Defendant argued that the Learned Judge did not have the Jurisdiction to make the Order which he made based on the authority of:

12 He contended that before a Warrant of Arrest could be issued four conditions must be fulfilled:

13 At Page 679 of FELTONS case Megarry, J. said:

14 “Put briefly, an Order can thus be made under this Section (Section 6 of English Debtor's Act, 1869) only if four conditions are satisfied; and those must be established by the evidence on oath to the satisfaction of a Judge before final judgment. The conditions are as follows: — (i) The action is one in which the Defendant would formerly have been liable to arrest at law; (ii) A good cause of action for at least £50.00 is established; (iii) There is “probable cause” for believing that the Defendant is “about to quit England” unless he is arrested; (iv) The absence of the Defendant from England will materially prejudice the Plaintiff in the prosecution of his action”.

15 The provisions of Section 6 of the English Debtors Act, 1869 are substantially the same as Section 6 of the Debtor Act, Cap. 23 of Montserrat.

16 I am of the view that the fourth condition will be the most difficult to satisfy. In Felton & Canis, Megarry, J. in a very illuminating judgment in which he traced the history of the arrest of the debtor, he said at page 680.

17 “It will be observed that Parliament has singled out one ground and one only, on which the Defendant's absence must “materially prejudice” the Plaintiff, namely prejudice “in the prosecution of his action”. The Writ is very far from being a form of execution. Indeed by express terms of Section 6, the Section applied only “before final judgment”. Accordingly in Yorkshire Engine Co. Ltd. Wright ( 1872 2, W.R. 15), the Court of Appeal held that where a Defendant had been arrested under Section 6 on a claim for £1,500.00 and had obtained his release by paying £1,500.00 into Court, he was entitled to have that money paid out to him as soon as he...