Collins v R

• Jurisdiction: Cayman Islands
• Judge: (Robinson, P., Zacca and Carberry, JJ.A.)
• Judgment Date: 25 April 1980
• Court: Court of Appeal (Cayman Islands)
• Date: 25 April 1980

Court of Appeal

(Robinson, P., Zacca and Carberry, JJ.A.)

J.P. COLLINS and K.C. COLLINS

and

R.

R.N.A. Henriques for the appellants;

D. Muirhead, Q.C. and J. Martin, Senior Crown Counsel, for the Crown.

Cases cited:

(1) Alexander v. Mackenzie, [1947] J.C. 155, dictum of Lord Jamieson applied.

(2) Att.-Gen. v. Ernest Augustus of Hanover (Prince), [1957] A.C. 436; [1957] 1 All E.R. 49, dictum of Lord Normand applied.

(3) Inland Rev. Commrs. v. Hinchy, [1960] A.C. 748; [1960] 1 All E.R. 505, observations of Lord Reid not followed.

(4) Ormond Inv. Co. Ltd. v. Betts, [1928] A.C. 143; [1928] All E.R. Rep. 709.

Legislation construed:

Caymanian Protection (Amendment) Law, 1977 (Law 7 of 1977), s.15: The relevant terms of this section are set out at page 32, lines 24–34.

Caymanian Protection Law (Law 23 of 1971), Preamble: The relevant terms of the Preamble are set out at page 34, lines 10–14.

s.15: The relevant terms of this section are set out at page 33, lines 9–17.

s.17: The relevant terms of this section are set out at page 38, lines 23–28; lines 34-41, and page 39, lines 11–18.

Caymanian Protection Law (Revised) (Law 23 of 1971, revised 1977), s.14(1): The relevant terms of this sub-section are set out at page 40, lines 12–14.

s.15: The relevant terms of this section are set out at page 31, lines 30–36.

s.76: The relevant terms of this section are set out at page 31, line 38 – page 32, line 3.

Deportation (British Subjects) Laws, 1941 and 1944 (Law 10 of 1941 and Law 7 of 1944; later Laws of the Cayman Islands, 1963, cap. 37), s.2(2): The relevant terms of this sub-section are set out at page 35, lines 1–2.

Immigration Restriction (British Subjects) Law (Law 15 of 1961, later Laws of the Cayman Islands, 1963, cap. 67), s.2(2): The relevant terms of this sub-section are set out at page 35, lines 5–7.

Immigration (Restriction) Law, 1941 (Law 9 of 1941), s.2(2): The relevant terms of this sub-section are set out at page 31, lines 4–7.

Maintenance Law (Revised) (Laws of the Cayman Islands, 1963, cap. 89, revised 1977), s.2: The relevant terms of this section are set out at page 35, lines 23–25.

s.3: The relevant terms of this section are set put at page 35, lines 29–41.

s.7: The relevant terms of this section are set out at page 36, lines 3–5.

s.9: The relevant terms of this section are set out at page 36, lines 6–8.

s.10: The relevant terms of this section are set out at page 36, lines 10–22.

Caymanian Protection-Caymanian status-‘belonging to’ Islands-dependent children-child deemed to ‘belong’ under pre-1971 legislation if ‘dependent’ of person born in Islands-legitimate child normally “dependent’ of father not mother

Caymanian Protection-Caymanian status-‘belonging to’ Islands-dependent children-child ‘belonging to’ Islands by being ‘dependent’ of parent ceases to ‘belong’ when dependency ceases

Caymanian Protection-Caymanian status-children-child, step-child and adopted child of person born in Islands only entitled to claim status through parent by Caymanian Protection Law, s.15(e) while under 18 years

The appellants applied to the Grand Court under s.16 of the Caymanian Protection Law (Revised) for declarations that they were entitled to Caymanian status pursuant to s.15 of the same Law.

The appellants were brothers born in Jamica, the older in 1943 and the younger in 1945. They were British subjects and claimed Caymanian status through their mother, who had status by virtue of being born in the Islands of parents both of whom had been domiciled here. The Grand Court (Summerfield, C.J.) refused to make the declarations sought.

On appeal, the appellants submitted that they were entitled to status through their mother (a) by virtue of the Caymanian Protection Law (Revised), s.15(1)(d), which afforded status to any British subject who

was ‘the child, or a step-child or an adopted child under the age of eighteen years,’ of a person born in the Islands; (b) the Revised Law expressly preserved all existing rights and privileges acquired under previous legislation, as did the original Caymanian Protection Law, 1971, s.15(e) of which was in the same terms as s.15(1)(d) of the Revised Law; (c) the purpose of the 1971 Law, according to its Preamble, was to provide for the ‘acquisition and enjoyment by persons who belong to these islands, of Caymanian status’ and, under legislation in force at the time of their respective births they were ‘deemed to belong’ to the Islands by being ‘dependents’ of their mother and had never lost that status; and (d) the punctuation of s.15(e) of the 1971 Law should therefore be given full effect, so that the words ‘the child’ were not controlled by the words ‘under eighteen years’ and the appellants” status could be recognised despite their having passed that age.

The Crown submitted in reply that (a) since the appellants had not been born in the Islands they could only be ‘deemed to belong’ if they had been ‘dependents’ of a person born in the Islands (under the Immigration (Restriction) Law, 1941, s.2(2), the Deportation (British Subjects) Laws, 1941 and 1944, s.2(2) and subsequent legislation)-but they had never been dependents of their mother, since the person responsible for maintaining legitimate children under Cayman law was their father; (b) even if they had once been ‘dependents,’ they would have been ‘deemed to belong’ only as long as they had remained dependents, a time which had long passed; and (c) the legislative concentration on (and increase of) the age of relevant dependents showed that the punctuation in the 1971 Law, s.15(e) should be disregarded, since it was clear that the age-limit should apply to a child as well as a step-child or an adopted child, and the appellants had already exceeded that age limit.

Held, dismissing the appeals:

(1) The appellants” application under s.16 of the Caymanian Protection Law (Revised) was to be determined according to the terms of that Law but the saving provisions of the Law (s.76) and of the preceding Amendment Law of 1977 (s.15) expressly preserved rights and privileges existing at the coming into force of the 1977 Law. The appellants” entitlement to status therefore fell to be determined according to the original Caymanian Protection Law of 1971, s.15(e) of which was in identical terms to s.15(1)(d) of the Revised Law (page 31, line 28 – page 33, line 6).

(2) Having regard to the Preamble to the 1971 Law-which was a permissible guide to the meaning of the enacting words since they were ambiguous-it was clear that the Law was intended to afford Caymanian status to persons who ‘belonged’ to the Islands. The legislation in force at the time of the appellants” birth (the Immigration (Restriction) Law, 1941 and the Deportation (British Subjects) Laws, 1941 and 1944, as subsequently replaced) would have deemed them to ‘belong’ to the Islands only if they had been ‘dependents’ of their mother, who had been born in the Islands. Yet both the definition of ‘dependents’ in that

legislation and the maintenance laws which had been in force in the Islands since 1881 made it clear that the appellants, as legitimate children, had to be treated primarily as ‘dependents’ of their father, who had not been born in the Islands (page 34, line 9 – page 35, line 25).

(3) Even if they had been dependents of their mother, the same legislation made it clear that rights arising from dependency only lasted as long as the dependency itself and, in the case of the appellants, would have ended when they reached the age prescribed in the legislation. This interpretation was supported by the presence in s.17(1) and (2) of the 1971 Law of provisions enabling children or wives who had ceased to be ‘dependents to apply for Caymanian status in their own right in certain circumstances (page 37, line 13 – page 38, line 6; page 38, line 21 – page 39, line 17).

(4) The proper construction of s.15(e) of the 1971 Law therefore required the court to take notice of the punctuation of that provision but then to disregard it, i.e. to disregard the comma appearing after the first ‘child’ in the paragraph, since to give grammatical effect to it would be to give it a meaning contrary to the plain intention of the statute. That intention was that children of all categories who were children of persons born in the Islands and who ‘belonged to’ the Islands under the terms of the earlier legislation were entitled to claim Caymanian status (page 33, lines 30–36; page 33, line 40 – page 34, line 7; page 39, lines 19–26).

(5) Since the appellants were not so qualified, the judgment of the Grand Court dismissing their applications would therefore be upheld. As they now lived with their widowed mother in the Islands, however, it was open to the Governor under s.14(1)(e) of the Caymanian Protection Law (Revised) to grant status to them as British subjects ‘if . . . in his opinion [he] should find special circumstances to warrant his so doing’ (page 40, lines 4–14).

ROBINSON, P., delivering the judgment of the court: The
appellants are brothers. They are British subjects who were born
in Jamaica, the elder on January 22nd, 1943 and the younger on
35	June 15th, 1945. They are the children of a mother who was a
Caymanian in every sense of the word. She was born in the Cay-
man Islands of parents both of whom were domiciled in the Cay-
man Islands at the time of her birth and she has always been and
still is a British subject. She therefore qualified as a ‘Cayma-
40	nian,’ defined in the Regulation of Immigration Law, 1934 as
meaning, inter alia, ‘a person born in the Cayman Islands.’ She

was also ‘deemed to belong’ to the Cayman Islands under the

provisions of the Immigration (Restriction) Law, 1941,

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