Supreme Court
Action No. 141 of 1978
31st March, 1980
Barrington-Jones, J.

The Solicitor General, for the Plaintiff.
Mr. Denys Barrow, for the Defendant.

Contract - Scholarship awarded - Bond Executed - Terms and conditions of bond - Conditions of bond interpreted according to intent of parties - Breach - Damages payable - Costs.

J U D G M E N T

The Defendant in this Action was a Civil Servant and an Assistant Lecturer at the Belize Teacher's College when in 1970 he was selected for the award of a Professional and Technical Scholarship, and recommended for an Accountancy Course in the United Kingdom. On the 9th September, 1970 a bond was executed by the Defendant in the sum of $8,001.82, wherein a number of conditions in respect of the award of the scholarship were set out, but I will return to these later. Thereafter, the Defendant went off to the United Kingdom in September, 1970 and pursued his studies there and was successful in Parts I and II of the Certified Accountants Examinations and it appears he returned to Belize in June or July 1972 (some one year nine months later) when he was appointed an Accountant in the Postmaster General's Office on the 25th July, 1972.

On the 1st August, 1972 the Defendant wrote to the Permanent Secretary in the Ministry of Education expressing his dissatisfaction with the way his scholarship had been handled. The Defendant claiming that he had been returned to Belize because of a serious and obvious mistake before the completion of his studies for the A. C. C. A. qualification, which is apparently divided into five parts. The Defendant pointed out that other scholarship holders had been offered and allowed to complete their courses and he anxiously enquired whether he might be able to resume his scholarship in time for the school year which commenced in September, 1972 so that he could tackle Part III of the examination.

The Defendant received an acknowledgment from the Ministry of Education on the 8th August, 1972 advising that his case was being taken up again with the British Council in London. On the 28th August, 1972 the Defendant again wrote a reminder to the Ministry of Education on the subject; and on the 28th September, 1972 the Permanent Secretary, Establishment confirmed that approval had been received from the British Council in London for the Defendant to continue studies for Parts III - V of the A. C. C. A. under the scholarship award which was first granted in 1970. A Gazette Notice was published on the 14th October, 1972 notifying that the Defendant had left Belize on three years study leave, with effect the 23rd September, 1972.

In June or July, 1975 the Defendant returned to Belize and was instructed to take up duty at the Ministry of Works where he had then been transferred. It is on record that the Defendant assumed duty in that Ministry on the 7th July, 1975.

On the 14th December, 1977, the Defendant tendered his resignation from the Public Service and it was later mutually agreed that his resignation should date from the 13th January, 1978.

On the 11th January, 1978, that is before the Defendant left the Public Service, he received a letter from the Permanent Secretary, Establishment advising, without prejudice and as a concession, that he would be allowed to repay a proportionate part of the cost of his training over a period of two years, that sum was expressed as $2, 500.57.

On the 25th May, 1978, the Accountant General wrote to the Defendant enquiring how he proposed to repay the amount in question.

On the 17th July, 1978, Messrs. Staine and Barrow wrote to the Permanent Secretary, Establishment on the subject of the bond entered into by the Defendant notifying that they had advised the Defendant that he was not obliged to pay the $2,500.57 claimed.

In the result, the Plaintiff took out a Writ on the 4th August, 1978 claiming $8,001.82 said to be owing to the Government of Belize from the Defendant in terms of the bond entered into by him.

An appearance was entered on the 28th August, 1978 by Messrs. Staine and Barrow and a Defence was filed on the 8th September, 1978. I will return to this document later.

At the commencement of the hearing, the Solicitor-General tendered an amended Statement of Claim which was put in without objection by Mr. Denys Barrow.

The first and only witness for the Plaintiff was Mr. P.A. Bernard, Acting Chief Training Officer, Government of Belize who gave evidence concerning the history of the Defendant's career in the Public Service and of the arrangements made for his study abroad; he also tendered some seventeen documents in evidence.
The Defence did not call any witnesses.

After considering the submissions made by the Solicitor-General and Mr. Barrow, the case was adjourned for judgment on a date to be fixed.

The bond which the Defendant entered into on the 9th September, 1970, and I am quite satisfied that it is a bond, recites, inter alia,

"AND WHEREAS the Government expenditure for passage money, subsistence and contingencies on the said scholarship is estimated to amount to the sum of $8,001.82

AND WHERE as (sic) as a condition of the award to me of the scholarship I undertook and agreed that if on completing successfully or on failing to complete the said course I do not immediately return to this Country, and, if the Government of this Country requires me so to do and in a post and at such salary as the Government considers commensurate with my qualifications:-

(a) re-enter, and remain in the service of the Government in which I am now employed; or

(b) enter and remain in the service of the Government; or

(c) enter or re-enter, and remain in the service of some local Government or quasi Government body in this Country as the Belize City Council, a District Town Board, the Electricity Board or the Marketing Board; or

(d) remain and work in British Honduras for a period of four consecutive years from the date of my return to this country.

I will pay to Her Majesty the Queen and Her successors the sum of $8,001.82

NOW THE CONDITION of the above written obligations is that if I the said Roy L. Pandy shall well and faithfully observe and perform all the above mentioned conditions and stipulations on my part undertaken to be observed and performed for and during the period of four years as aforesaid then the said obligations shall be null and void and of no effect otherwise to be and remain of full force and virtue."

I have quoted this portion of the bond, not only because it appears to me to be its very kernel, but also because I agree with the Solicitor-General when he says that all that has to be decided here is the interpretation of the document itself. There is, however, one extraneous matter that also falls to be considered here and that is Mr. Barrow's contention that it was impossible for the Defendant to comply with the conditions generally since the Defendant returned to Belize in July, 1972, but left again in the following September, and did not finally return to Belize until July, 1975. In this connection, it was conceded by the Solicitor-General that the Defendant should have been required to enter into a further Bond when he left to continue his studies on the second occasion, but through some oversight this was not done.

Upon due reflection however, and in spite of what Mr. Bernard said on this subject, I am not satisfied that the terms of the bond were in any way disturbed by the fact that the Defendant returned to Belize in the middle of his studies and resumed his duties as a Public Servant for a couple of months and then at the Defendant's behest and with the leave of the Government went off again to continue his studies. I say this if only because no variations appear to have been made to the terms, under which the Defendant continued his studies abroad. The only effect of his return would be that the time he spent here would count as residential service for the purpose of the bond. I ,therefore, find that the conditions set out in the bond commenced to run with the effect the Defendant's final return to this country in July, 1975. It is a matter of record that the Defendant upon his return at that time immediately took up his directed appointment in the Ministry of Works on the 7th July, 1975 and continued in the Public Service until the 13th January, 1978, thus, serving just over 2½ years after his return to this country i.e. some 1½ years short of the four consecutive years required in terms of the bond.

There cannot, of course, be any question of the Defendant's service being said to run whilst he was absent from Belize on what was effectively study leave. What must be implied in the third recital of the bond is "residential" service, to interpret otherwise would be nonsensical.

Mr. Barrow drew the Court's attention to paragraph 638 Halsbury's Laws of England 3rd Edition Volume 3 where it is stated inter alia:"

"The main rule is that regard must be had to the intention of the parties, as ascertained from the instruments as a whole and, in order to give effect to the intention, the Court will, where necessary, transpose or reject words and supply accidental omissions. But the intention must be ascertained from the terms of the instrument itself, parol evidence not being admissible to explain, add to, or contradict it; though, where the terms are ambiguous, regard may be had to the circumstances of the case in order to explain the ambiguity. The court will not allow the intention, if it is clear, to be defeated by false grammar or defective spelling. The obligatory part of the bond, being for the benefit of the obligee, is always construed most strongly against the obligor, but the condition, being for the benefit of the obligor, is construed most strongly in his favour."

Mr. Barrow made much of Ex PAB-l7 which is, in part, a congratulatory letter from the Chief Education Officer to the Defendant dated 19th March, 1970 advising the Defendant that he had been awarded a scholarship to pursue studies in accountancy. The second paragraph is drafted loosely and speaks of the Defendant entering into a contractual agreement "to return and serve in the country for a specified number of years on the completion of your studies". I take the view that this letter was by way of an intimation of the general terms under which such a scholarship would be granted, and no more than that. It is the bond executed in September of that year that sets out the actual and precise conditions of the award of the scholarship and I, accordingly find that this letter cannot be pleaded as a submission that the phrase "serve in the country for a specified number of years" should be interpreted as meaning that provided the Defendant served in any capacity in Belize he would have fulfilled any or all the conditions concerning service in Belize after the completion of his scholarship award.

I now turn to deal with the Defence commencing at paragraph (3) thereof:

There is therefore no good ground for the Defendant's contention that the course of study in respect of which the bond was executed was completed in June, 1972.

Government of Belize in consultation with the Defendant to decide which of the alternative conditions might be applied in the Defendant's case. There can, in my view, be no question of the Defendant unilaterally choosing condition (d). Indeed the third recital in the preamble to the conditions in the bond makes this manifestly clear viz:

"… if the Government of this Country requires me so to do and in a post and at such salary as the Government considers commensurate with my qualifications".

that without prejudice to any rights accruing to Government under his training bond it had been agreed as a concession that he be allowed to repay a proportionate part of the cost of his training. The Defendant apparently declined this offer since the next communication thereafter is the letter from his solicitors to Government in which they intimate that they have advised the Defendant that he is not obliged to pay the amount of $2,500.57 requested.

In looking at this whole matter I embrace entirely what has been said at paragraph 638 Halsbury's 3rd Edition Volume 3. In my view the intention of the parties to the bond is crystal clear i.e. that the Defendant was well and tru1y bound unto Her Majesty Queen Elizabeth II in the sum of $8,001.82 to attend a course in Accountancy in Britain and that as a condition of the award of the scholarship the Defendant undertook and agreed that if on completing successfully or on failing to complete the said course he did not immediately return to Belize, and if the Government of Belize required him so to do and in a post and at such salary as the Government considered commensurate with his qualifications he would

(a) remain in the service of the Government in which he was employed; or

(b) Not applicable; or

(c) enter and remain in the service of some local Government or quasi Government body in Belize such as the Belize City Council, etc., etc., or

(d) remain and work in Belize for a period of four consecutive years from the date of his return to this Country;

and it is recited that the condition of the obligations is that if the obligor shall well and faithfully observe and perform all the aforementioned conditions and stipulations on his part undertaken to be observed and performed for and during the period of four years (as aforesaid) then the said obligations shall be null and void and of no effect otherwise to be and remain of full force and virtue.

The general rule regarding interpretation is Ut res magis valeat quam pereat. It is good law that the conditions of a bond should be interpreted according to the intent of the parties, if it can be made clear (Ferrers v Newton (1666) 1 Sid 312 82 E. R. 1126). It is clear that the intention of the parties ought to govern the Court in making its decision, in order to discover which, the Court must look at the recital of the conditions of the bond. (Barclay v Lucas (1783) I Term Rep 291); and that the intention of the parties in executing a bond is to be ascertained by looking at the recital and conditions of the bond, exclusively of the extraneous facts.

There is clear authority to the effect that the intention of the parties to the instrument is to be the criterion, but that this is in general to be ascertained from the words of the instrument. As Coleridge J., said in London Assce Co., v Bold (1844) 6 Q. B. 514:-

"We may indeed look at the circumstances which occurred at the time, in order to understand what the parties were about; but when a bond has an express meaning in the words which it contains, we are not to admit any evidence to diminish or enlarge its meaning."

In the event the Defendant did not comply with the conditions of the bond because he resigned from Government Service some 2 1/2 years after his final return to Belize; and he failed to pay the requested proportionate part of the cost of his training in the sum of $2,500.57. In my view the Government were then perfectly entitled to take out a Writ of Summons for the full amount recited in the bond i.e. $8,00l.82.

I would only add that as Malone C. J. said in the, Attorney General v D. R. Lindo (Action No.46 of 1964)

"The execution of a bond is a solemn act"...

The then Chief Justice also referred to Crane v Hegeman-Harris Co., Inc., (1939) 1 All E.R. 662 where Simmonds J., said:

"I want to say this upon the principle of jurisdiction. It is a jurisdiction which is to be exercised only upon convincing proof that the concluded instrument does not represent the common intention of the parties. That is particularly the case where one finds prolonged negotiations between the parties eventually assuming the shape of a formal instrument in which they have been advised by their respecti- ve skilled legal advisers. The assumption is very strong in such a case that the instrument does represent their real intention and it must be only upon proof which Lord Eldon, I think, in a somewhat picturesque phrase described as 'irrefragable' that the Court can act. I would rather, I think, say that the Court can only act if it is satisfied beyond all reasonable doubt that the instrument does not represent their common intention and is further satisfied as to what their common intention was. For let it be clear that it is not sufficient to show that the written instrument does not represent their common intention unless positively also one can show what their common intention was."

As in Action No. 46 of 1964, there is no question here of protracted negotiations nor were skilled legal advisers involved. Here, I find that the document dated the 9th September, 1970 was a properly executed valid bond, the intention of the parties clear, and I formally find that the Plaintiff has established the validity of the bond and the breach of its condition by the Defendant.

The Plaintiff is, accordingly, awarded judgment in the sum of $8,001.82 and is to have the taxed costs of this Action.

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