Court of Appeal
Criminal Appeal No. 13 of 1983
SIR JAMES A. SMITH Ag. P.
ALBERT L. STAINE J.A.
KENNETH ST. L. HENRY J.A.

Mr. Elrington, for the Appellant
Mr. Gandhi, Director of Public Prosecutions, for the Respondents

Jurisdiction of Court of Appeal to hear an appeal in a criminal cause or matter from the Supreme Court on appeal from an Inferior Court - Section 26 of the Court of Appeal Act.
Order 73 Rule 3 and Rule 4 of the Supreme Court Rules relating to appeals from Inferior Court to Supreme Court - Order to be construed strictly in respect of the entering of recognisance to prosecute appeal - Appellant failing to sign document purporting to be recognisance - Order 73 construed as providing that recognisance is to be entered into by the Appellant.
Appellant paying security in cash to prosecute the appeal - No evidence before the Supreme Court that deposit of cash as security under Order 73 Rule 3 (4) for prosecuting the appeal had been made, and Supreme Court making decision on assumption that document purporting to be recognisance was the only security - Fact of cash deposit coming to light after Supreme Court had made decision - Whether Supreme Court made an error of law, or an error of fact, or an error of mixed law and fact - Jurisdiction of Court of Appeal to determine issue of errors of mixed law and fact in appeals from Supreme Court on appeals from Inferior Courts - Section 26 of the Court of Appeal Act.
Appeal dismissed - Court of Appeal holding it does not have jurisdiction under section 26 of the Court of Appeal Act.

J U D G M E N T

The jurisdiction of this Court to hear an appeal in a criminal cause or matter from the Supreme Court on appeal from an Inferior Court is contained in Section 26 of the Court of Appeal Act. Under Sec. 26 (1) (a) we may hear appeals upon any ground which involves a question of law but under Sec. 26(1) (b), our jurisdiction to hear appeals on fact or mixed law and fact is confined to orders concerning special categories of persons. This latter jurisdiction does not arise on the facts of the present case.

Mr. Elrington for the purported Appellant, Mr. Senn, contends that the issue he raises in this matter is a point of law Mr. Gandhi, D.P.P., for the Respondent has submitted it is no more than a error of fact.

Mr. Senn has sought to appeal from a decision of the Inferior Court of Orange Walk Judicial Division dated 8th February, 1983, to the Supreme Court. The matter came before the learned Chief Justice on 1st July, 1983 who on the preliminary point of whether or not the appeal was properly before him and holding that it was not, ordered that the appeal be struck out. The application before this Court is to have the appeal to the Supreme Court reinstated.

The point at issue before the learned Chief Justice was whether there had been proper compliance with 073 r 3 and r 4 of the Supreme Court Rules relating to appeals from Inferior Courts which need to be complied with strictly as a prerequisite for the due prosecution of the appeal. The relevant rules read:-

"(3) The Appellant shall further, within 28 days after the pronouncing of the decision, give security before the Inferior Court in such amount as shall be required for the payment for any costs awarded against him by the Court and for the due and faithful performance of the judgment or order of the Court.

(4) The security shall be by deposit of money with the Clerk, or by a recognisance in Form 2 entered into by the Appellant, with or without a surety or sureties to the satisfaction of the magistrate:
Provided ……….

The proviso has no application to the present case.

The facts before the learned Chief Justice were briefly that the magistrate gave his decision on 28th February, 1983. On the same day a document purporting to be a recognisance to prosecute the appeal was entered by William Senn but signed by Bernard Q.A. Pitts a solicitor, for and on behalf of the Appellant. It was the validity of this document in the context of 073r3 (4) that was in issue before the Chief Justice. The copy of the recognisance which was filed with the appeal papers before the learned judge left much to be desired; it read:-

"IN THE ORANGE WALK JUDICIAL DISTRICT
INFERIOR COURT
RECOGNISANCE TO PROSECUTE APPEAL

WE, the undersigned
and severally acknowledge to owe to our sovereign Lady the Queen the several sums following namely the said William Senn as principal the sum of $100.00 as surety to be levied on our several real and personal property respectively if the said WILLIAM SENN fails in the condition herein endorsed.

SIGNED by the said WILLIAM SENN

this 28th day of February, 1983

Before me,
/sgd./ H. LORD
Magistrate
Orange Walk Judicial District"

In his ruling the learned Chief Justice said:-

"It has long been held that the requirement for entering a recognisance to prosecute an appeal is to be regarded with some seriousness (Tai v. Charles 1. W. I. R. 346).

This does not appear to have been done in this case. The document which purported to be the required recognisance to prosecute the appeal could not be held to have bound William Senn to anything. He did not sign it and there is nothing to show that Bernard Q.A. Pitts had authority to commit him (William Senn) and his property to the sum stated in the recognisance. The truth is William Senn did not enter into a recognisance.

The Supreme Court Rules by Order 73 rule 3(3) provide that "The Appellant shall within 21 days after the pronouncement of the decision give security before the Inferior Court in such amount as shall be required for the payment of any costs awarded against him by the Court and for the due and faithful performance of the judgment or order of the court". Then by Rule 3 (4) "The security shall be by deposit of money with the clerk or by recognisance in Form 2 entered into by the Appellant, with or without a surety or sureties to the satisfaction of the magistrate."

I took the view that the above provision of 073 require the recognisance be entered into by the Appellant. The Form 2 referred to in Rule 3 (4) itself shows it is to be signed by the Appellant. It does not indicate that it may be signed by the Appellant. The document concerned, the purported recognisance, was drawn up in recognition that the Appellant himself is to enter into the recognisance."

The learned Chief Justice after a reference to the case of Daniel v. Elva (No. 1) 17 W.I.R. 177 concluded:-

"The provisions are mandatory and unless the requirements are fulfilled there is no appeal before the Court. I accordingly rule that in this case there was no proper appeal before the court."

Both counsel concede and we agree that this is a correct statement of the law.

The ground of appeal, after amendment, which is before us is:

"The learned trial judge erred in dismissing the appeal on the basis of a defect in the recognisance since the recognisance itself was not required in law because security had been given in cash."

There was no evidence before the learned Chief Justice of the payment of a deposit of cash as security under Rule 3(4) for prosecuting the appeal. That evidence came to light in the affidavit of Mr. Bernard Q.A. Pitts dated 5th November, 1983. In this affidavit, he explained the circumstances in which he came to sign the recognisance and also made a deposit of cash.

As to the latter he deposed:-

"4 On the said 28th day of February, 1983 I journeyed to Orange Walk Town, served upon the magistrate the said notice of appeal and requested of him the amount being ordered by the Court to be deposited by way of security for the due prosecution of the said appeal.

5. The Magistrate, H. Lord Esq., informed me that the security shall be $100.00.

6. The said sum was immediately deposited into court by me for and on behalf of the said William Senn who was out of the Country at the time. Exhibited hereto is Government of Belize, Treasury Receipt No.852109 in the sum of $100.00."

This receipt was exhibited to the said affidavit. However there was a failure to produce it before the learned Chief Justice at the hearing on 1st July, 1983. The argument before his Lordship was based on the assumption that no deposit had been paid.

We have been shown the original recognisance and thereon under the name of Mr. Pitts is the number and the date of the receipt. But this receipt number did not appear on the copy of the recognisance shown to the Chief Justice. The blank spaces appearing in that copy were filled in the original recognisance. We do not understand how these discrepancies could have arisen. But the facts remains there was no evidence before the learned Chief Justice that a deposit had been paid.

Thus, although the ground of appeal before us is framed as an error in law, it is apparent from the evidence set out above that we are being asked to do no more than to say this was a fact which should have been brought to the notice of the Chief Justice. That makes it an appeal based on an ommission of fact or at best an error of mixed law and fact.

We have no jurisdiction under section 26 of the Court of Appeal Act to entertain such an application and the purported notice of appeal must therefore be struck out for want of jurisdiction.

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