Collie, Norman and Norman v Issac, Peters and Joseph
| Jurisdiction | Trinidad & Tobago |
| Judge | McShine, J.A.,Fraser, J.A.,Phillips, J.A. |
| Judgment Date | 24 October 1967 |
| Neutral Citation | TT 1967 CA 108 |
| Docket Number | Civil Appeal No. 6 of 1966 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 24 October 1967 |
Court of Appeal
McShine, J.A.; Fraser, J.A.; Phillips, J.A.
Civil Appeal No. 6 of 1966
W. Gaspard and R. Barnwell - for the appellants.
E. Wells, Q.C. and M. de la Bastide - for the respondents.
Practice and procedure - Contempt of court.
In an action No. 315 of 1939 between Joseph Hugh Collie, Kathleen Norman and Rosina Norman as plaintiffs and Wilfred Isaac and others as defendants Gilchrist J. made an order on February 22, 1940 enjoining each and every of the defendants including Wilfred Isaac from entering the or any part of the lands of the plaintiffs situate at the heights of Bournes Road in the Ward of Diego Martin known as “Woodbine” lands and comprising 46 acres 3 roods 35 peaches. These lands were identified in the order not only by a description of their boundaries but also by express reference to a survey plan prepared by H.J. Monceaux, Land Surveyor, which was filed in the proceedings. The order also restrained each and every of the defendants including the said Wilfred Isaac “from doing thereon any acts in pursuance of any claim to ownership thereof and/or committing any acts of trespass thereon”.
By Notice of Motion dated June 11, 1963 the plaintiff Kathleen Norman moved the Court for an order that the defendant Wilfred Isaac be committed for contempt in that in disregard of the said order of Gilchrist J. he had repeatedly entered upon the said lands and committed acts of trespass thereon. The notice also intimated that the plaintiff intended at the hearing of the application to make use of the affidavits of Messrs. J.G. Kelshall, F.S. Norman, C. James and H.J. Monceaux, all filed on June 11, 1963 copies of which were served therewith.
The history of the proceedings on the motion has in some respects been abnormal, not the least unusual feature being that shortly after they began, it was discovered that the entire file had disappeared out of the Registry. Consequently, on March 13, 1964 Georges J. directed the Registrar to prepare a set of proceedings from the records available to him”. On March 26, 1964 he ordered, on presentation of the list of documents naming the nature of the copy and the sources from which they emanated, that subject to two amendments the proceedings “as reconstituted by the Registrar of the Supreme Court with his certificate and schedule of documents annexed be deemed to be the records in the above matter as the Court was satisfied that the original records had been lost and were not available”.
On April 13, 1965 an appeal against this order was dismissed. In the course of its judgment the Court of Appeal said, ( Isaac v Norman 8 W.I.R. 324) at 328:
“In the opinion of this Court no authority is needed for what appears to be the self-evident proposition that a superior Court of record must be endowed with inherent power to reconstitute its lost records, subject always to the right of any litigant to show that any document relevant to the matter before the Court cannot be relied upon by reason of its inaccuracy, incompleteness or otherwise, or to supplement the reconstituted record by having included therein any document which may have been omitted. The basis for the exercise of such a power is manifestly to be found in the general rule of the law of evidence that secondary evidence is admissible to prove the contents of a lost document”.
This motion for contempt was not the first in this action, for the affidavit of Kelshall shows that prior to the instant motion, thrice proceedings had been had against Wilfred Isaac for contempt of the order of Gilchrist J.
On December 14, 1965 the motion came on for hearing before Cherrie J. who on December 22, 1965 found Isaac guilty of contempt. But it was not until January 3, 1966 that he made an order which he noted as follows:
“Fine $500. Costs of application to be taxed within 7 days. Order suspended for one week for undertaking offered by defendant to be formulated by counsel”.
On January 31, 1966 Isaac whom from now on I shall call the appellant, gave the following undertaking in relation to nine actions brought against tenants on the Woodbine’ lands.
“The defendant undertakes that he will forthwith discontinue actions Nos. 1180/62; 1181/62; 1182/62; 1183/62; 1184/62; 1185/62; ‘1186/62; 1187/62; 1188/62, against the tenants of the plaintiffs (in this action) and against the said plaintiffs as third parties and will take no further action whether by way of commencing proceedings or entering upon or interfering in any way with the lands occupied by the said tenants while the Order of Mr. Justice Gilchrist dated 22/2/40 remains in full force and effect and that the defendant do pay to the plaintiffs therein the sum of $1,000 in full settlement of all the costs arising in the said actions”.
This undertaking was endorsed by counsel for the appellant, but as at that date the deed whereby he was to renounce any claim to the plaintiffs’ lands was not finally settled, the matter was adjourned to February 5, 1966. However on February 5, 1966 Cherrie J. rescinded his order of January 3, 1966 despite the appellant having executed a deed in terms of the draft submitted to the Court on January 31, 1966 and repeating the undertaking quoted above.
Instead his order was as follows:
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(1) The defendant is committed to prison for his contempt until further order, such committal to be suspended on payment by the defendants to the plaintiffs within 6 weeks of the taxation thereof, the costs of these proceedings to be taxed.
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(2) An injunction to issue prohibiting the defendant from repeating the said acts of trespass and more particularly from occupying or making use of the building referred to in para.17 of the affidavit of Francis William Norman sworn to on the 10th day of June, 1963 and filed herein.
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(3) Liberty to apply. Leave to write up Order.
Against this order the appellant appealed. Four points were argued on his behalf, in substance as follows:
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(1) That it was incompetent for the Court to have acted upon the reconstituted proceedings, and more particularly so in the absence of the Monceaux Plan upon which the injunction in the order of Gilchrist J. was based.
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(2) That the learned judge exceeded his jurisdiction in rescinding his order of January 3, 1965 and had no jurisdiction to substitute for that order, the order of February 5, 1966.
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(3) That the strict procedural requirements in regard to the motion for committal have not been followed, and that this irregularity renders the proceedings a nullity.
and
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(4) That there has been no wilful or contumacious flouting or disobedience of the order of Gilchrist J. of 1940.
In my opinion, having regard to what I quoted earlier from the judgment of this Court, it is no longer open to the appellant to object to the admissibility of any of the documents included in the reconstituted record, or to the learned judge looking at or considering any of them. Further, because it was contemplated that supplementing the reconstituted record might prove to be necessary this Court expressly left it open to any litigant to include any document which may have been omitted. I mentioned earlier that the order of Gilchrist J. referred to a survey plan prepared by Land Surveyor, H.J. Monceaux, which was filed in the proceedings. That too, had disappeared. The appellant made no attempt to produce a copy in an endeavour, and there was indeed no onus on him, to show that the land upon which he was alleged to have trespassed formed no part of the “Woodbine” lands as delineated in that plan. The anus was on the respondents to show that it did. Accordingly before Cherrie J. Monceaux confirmed the accuracy of a copy of a plan which was admitted into evidence at the instance of the respondents. There was evidence also that the copy of the plan had been taken to the offices of the Survey Department where a check was made in the presence of an officer of the Court with an original kept in that office in accordance with a statutory requirement in that behalf. As a result of that check a certificate was put on the Monceaux Plan that it was a true copy of an original lodged at the Survey Department.
It was nevertheless objected that the copy should not be accepted since it is particularly important that any injunction or order affecting the liberty of the subject should be in precise terms: see Ellerman Lines Ltd. v. Read [1928] 1 K.B. 157. But when this matter is viewed in the light of the leave given by the Court of Appeal to supplement the record, the check of the copy of the plan put into evidence with an original in the Survey Department, the failure by the appellant produce any other plan and the absence of any challenge to the accuracy of the plan before Cherrie J., one is driven to the view that this avenue of objection is closed to the appellant. I would therefore reject it.
On January 3, 1966 Cherrie J. made the order already recited but on February 5, 1966 he rescinded it and substituted therefor the order the subject of this appeal.
It was not seriously challenged that an order pronounced in Court or Chambers can be withdrawn on application by a party or on the Court's own motion, if it has not yet been drawn up, passed and entered: see In re Harrison's Settlement (1955) Ch. 260. But a distinction was sought to be drawn between orders made in purely civil proceedings and orders made either in criminal matters or matters which carry some ultimate penal sanction or consequence. Also it was said that since Cherrie J. had by his order of January 3 imposed a fine he had treated the matter as one of criminal contempt and therefore became ‘functus officio’ from the moment he made that order: see Attorney General v James and others [1962] 1 All E.R. 255. In my opinion, however, the...
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