Supreme Court
Action No. 67 of 1976
23rd June, 1983.
Moe, CJ.

Mr. Dean Lindo S.C. for the Applicant/Defendant
Mr. Edwin Flowers for the Respondent/Plaintiff

Application for leave to appeal from order of a judge in chambers - Affidavit evidence - Hearsay - Res Judicata - Garnishee Proceedings - Recovery of debt - Supreme Court Rules - Whether evidence sworn to in the affidavit was a matter of personal knowledge - Whether the affidavit used in the garnishee proceedings raised a matter that was Res judicata - Application failed - Leave to appeal refused - Costs.

D E C I S I O N

This is an application by the Defendant now the judgment debtor for leave to appeal from an order of a judge in chambers made on the 17th May, 1983 that the Government of Be1ize, the garnishee, do forthwith pay the Plaintiff, the judgment creditor $33,988.16 being the debt owed from the said garnishee to the said judgment debtor as is sufficient to satisfy a judgment debt recovered against the said judgment debtor.

The Defendant seeks leave to appeal on the grounds that (i) the judge erred in holding that an affidavit of the Solicitor for the Plaintiff was based on his personal knowledge; (ii) consequently the judge erred in using that affidavit which was hearsay; and (iii) the judge erred in using the affidavit inasmuch as it contained matter Res judicata.

The affidavit concerned was filed in support of the application by the Plaintiff for a garnishee order and the deponent swore as follows: -

1. By a judgment of the Court given in this action and dated the 7th of June, 1982, it was adjudged that the above-named judgment creditor should recover against the above-named judgment debtor the sum of $33,988.16.

2. The said judgment debt still remains unsatisfied to the extent of the entire sum.

3. The Government of Belize is indebted to the judgment debtor in the sum of $50,000.00 or thereabouts.

4. The said Government of Belize is within the jurisdiction of this Court.

An order nisi was made on the 15th of March, 1983. At the hearing of the application for the order to be made absolute, Counsel for the garnishee stated that the garnishee had no objection to paying the Plaintiff. However counsel for the Defendant objected to the making of the order on much the same grounds as those urged for the grant of the present application. On that occasion he contended -

1. The affidavit was inaccurate because the Defendant had already stated on oath that the Government did not owe him $50,000.

2. The Affidavit could only have been on the basis of information and belief.

3. Such an Affidavit must state the grounds for the belief.

4. The Affidavit being based on information and belief and not having grounds for belief stated was bad.

5. Consequently the application could not be entertained.

One other ground urged then is not pursued for the purpose of this application.

The affidavit followed the form required by Order 48 Rule 1 of the Supreme Court Rules. The pertinent paragraph, that the Government of Belize is indebted to the judgment debtor in the sum of $50,000.00 or thereabouts, was, as the judge found, sworn to as a matter of personal knowledge. This was in keeping with Order 39 Rule 3 that affidavits shall be confined to such facts as the witness is able of his own knowledge to prove ---. The question whether the deponent had sworn to an untruth or to a matter on which the judge could not act needed no determination for the Government itself through counsel confirmed the truth of the paragraph. This application therefore fails on the first two grounds urged.

In relation to ground (iii) it was contended as follows:- that the affidavit stated that the Government of Belize is indebted to the Defendant in the sum of $50,000. That that was Res judicata for in the proceedings of the 15th of February, 1983 on the hearing of a judgment summons issued by the Registrar, the judge ordered that he was not satisfied that the Defendant has since the judgment had sufficient means to pay the judgment debt nor does he refuse to pay. The record shows that at the hearing of the judgment summons on the 15th of February, 1983 the only evidence given was that of the Defendant who in evidence in chief said inter alia "I was employed - or was working on contract for Government since the judgment. I was building roads and bridges for Government --- I received a total of $65,600.00 for that work. I also received $137,000 from Government in 1982 for building feeder roads. Government is not indebted to me at all. It is not correct that the Government owes me about $50,000." The Defendant's submission now is that the judge had on the 15th of February, l983 by his order as above, ruled on the question whether the Government of Belize owed the Defendant $50,000, and it was not open to the Plaintiff to have the matter reopened. The Plaintiff contended that the judge cannot be held to have adjudicated on that question for there was only the statement of the Defendant that the Government did not owe, there was no proof put forward that Government owed the money and there were other matters before the judge which could have caused him to order as indicated.

By Order LXX1 Rule 1 a judgment summons such as was before the judge on 15th February, l983 is issued on application made by a judgment creditor to obtain the committal of the judgment debtor. In addition to the application for committal, the Courts require evidence of means to be filed. It does not appear that there was such an application nor such evidence of means filed.

However, the accepted principle is "Before making a Committal Order it is essential that the Court should satisfy itself that in respect of the sums for which the committal order is to issue it can truly be said that since the respective due dates the debtor has had the means of paying them available but has neglected to use those means for the purpose of paying them. It is obvious that the debtors future prospects of payment have no bearing on this question ---" see Laxmoore J. in Re A judgment debtor 51 T.L.R. 524. ([1949] 2 Q.B. at 101). This is incorporated in Order LXX1 Rule 7(2) which provides inter alia as follows: "If it shall appear to the Court that the debtor has then or has had since the judgment or order was obtained against him, sufficient means and ability to pay the sum due thereunder, in respect of which he has made default, and refuses or neglects, or has refused or neglected to pay the same in accordance with such judgment or order, or as directed by any order subsequent to such original judgment or order, then the Court may order the debtor to be committed to prison for a term not exceeding six weeks or until sooner payment of the sum due."

What the judge had to satisfy himself on was the position of the Defendant on that date 15th February, 1983 and between the date of judgment 15th June, 1982 and that date. He was not satisfied that on that date nor between date of judgment and that day the Defendant had sufficient means to pay the debt and refused to pay. Such a finding does not and cannot preclude a decision that on a later date the 17th of May, 1983 the Defendant has sufficient means to pay and refuses to pay. Thus, even if there was a finding on the 15th February, 1983 that the Government did not owe the Defendant a sum of money, that decision does not preclude a decision that on the 17th of May, 1983 the Government of Belize owes money to the Defendant.

For the above reasons I would not agree that the affidavit used in the garnishee proceedings raised a matter that was Res judicata. The application would also fail on this ground. In the circumstances leave to appeal is refused. The Respondent/Plaintiff to have his costs.

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