Hanna v Att Gen
| Jurisdiction | Cayman Islands |
| Judge | (Kerr, Rowe and White, JJ.A.) |
| Judgment Date | 11 November 1983 |
| Date | 11 November 1983 |
| Court | Court of Appeal (Cayman Islands) |
(Kerr, Rowe and White, JJ.A.)
R.D. Alberga, Q.C. and J. McDonald for the appellants;
D. Muirhead, Q.C. and J. Martin, Senior Crown Counsel, for the respondents.
(1) Att.-Gen. v. Verhazza, [1960] A.C. 965; [1960] 3 All E.R. 97.
(2) Beaulieu, In re, Grand Ct., Cause No. 531/77, unreported, considered.
(3) Bowie (or Ramsay) v. Liverpool Royal Infirmary, [1930] A.C. 588; [1930] All E.R. Rep. 127.
(4) Collins v. R., 1980–83 CILR 27, distinguished.
(5) Craignish v. Craignish, [1892] 3 Ch. 192.
(6) Henshall v. Porter, [1923] 1 K.B. 193.
(7) Hitchcock v. WayENR(1837), 6 Ad. & El. 943; 112 E.R. 360, considered.
(8) Hutchinson v. Jauncey, [1950] 1 K.B. 574; [1950] 1 All E.R. 165, followed.
(9) Inland Rev. Commrs. v. Bullock, [1976] 1 W.L.R. 1178; [1976] 3 All E.R. 353.
(10) Lloyd v. Lloyd, [1962] Argus L.R. 279.
(11) MacDonald, ReUNK (1973), 20 W.I.R. 314; further proceedings, sub nom. McDonald, Re (No. 2)UNK(1975), 23 W.I.R. 332, applied.
(12) Smithies v. National Assn. of Operative Plasterers, [1909] 1 K.B. 310, considered.
(13) Stephenson, Re, Grand Ct., Petition No. 7 of 1976; on appeal, sub nom. Stephenson v. Att. Gen., C.A., Appeal No. C.I.A. 15/77, unreported, considered.
(14) Suche (Joseph) & Co. Ltd., In reELR(1875), 1 Ch. D. 48, considered.
(15) Tithe Redemption Commn. v. Bounty of Queen Anne (Governors), [1946] 1 All E.R. 148.
(16) Zainal bin Hashim v. Government of Malaysia, [1980] A.C.734; [1979] 3 All E.R. 241, followed.
Caymanian Protectidn (Amendment) Law, 1977 (Law 7 of 1977), s.15(a), (d): The relevant terms of these paragraphs are set out at page 424, line 41 – page 425, line 10.
Caymanian Protection Law, 1971 (Law 23 of 1971), s.2: The relevant terms of this section are set out at page 429, lines 37–40.
s.15: The relevant terms of this section are set out at page 414, lines 18–35.
s.15, as substituted by the Caymanian Protection (Amendment) Law, 1977 (Law 7 of 1977), s.4: The relevant terms of this section are set out at page 420, lines 4–22.
Caymanian Protection Law (Revised) (Law 23 of 1971, revised 1977), s.15(3), as added by the Caymanian Protection (Amendment)
(No. 3) Law, 1977 (Law 32 of 1977), s.3: The relevant terms of this sub-section are set out at page 416, lines 11–30.
Immigration Restriction (British Subjects) Law (Laws of the Cayman Islands, 1963, cap. 67), s.2(1): The relevant terms of this sub-section are set out at page 416, line 33 – page 417, line 3.
Caymanian Protection-Caymanian status-law applicable-law applicable is that in force at time of hearing, not at time of petition
Caymanian Protection-Caymanian status-retrospective legislation-presumption against retrospective legislation affecting pending applications rebuttable by legislative intent-1977 amendments to Caymanian Protection Law, 1971 intended to clarify interpretation of original 1971 Law therefore declaratory and of retrospective application to 1972 petition
Caymanian Protection-Caymanian status-vested rights-if petitioner under Caymanian Protection Law, 1971 not yet heard, no rights to be preserved under saving provisions of Caymanian Protection (Amendment) Law, 1977, s.15(d) and Caymanian Protection (Amendment) (No. 3) Law, 1977, s.3
Caymanian Protection-Caymanian status-domicile in Cayman Islands-for pre-1971 immigration, domicile to be interpreted according to statutory not common law definition because ‘context otherwise requires’ under Caymanian Protection Law, 1971, s.2
The appellants petitioned the Grand Court for declarations that they were entitled to Caymanian status.
The appellants were British subjects with domicile of origin in Canada. After an initial visit they came to live in the Cayman Islands between December 1971 and October 1976 during which time they bought land and built a home. In 1976, they returned to Canada for personal and domestic reasons. In August 1972 they applied to the Grand Court for declarations granting them Caymanian status but for various reasons (including the negligence of the court registry) the matter was not heard until February 1982. In the meantime the Caymanian Protection Law, 1971, which had come into force on March 27th, 1972 and under which they had petitioned, had undergone several fundamental amendments.
The Grand Court (Summerfield, C.J.) held that the appellants would have been entitled to Caymanian status based upon a common law interpretation of domicile under the original 1971 Law, but by virtue of two 1977 amendments, which had retrospective effect, their petitions could not succeed.
On appeal, the appellants submitted that (a) the court should have applied the law as it existed in 1972 at the time of the filing of the pet-
ition rather than at the time of the hearing, an act which would have crystallized the rights of the petitioners and entitled them to a determination of their petition in accordance with the law as it then stood, i.e. the Caymanian Protection Law, 1971; (b) the court had been correct in its interpretation of the criterion for domicile under the Caymanian Protection Law, 1971 as incorporating exclusively the common law meaning of that term, a criterion which the appellants had met and which, had this Law been applied, would have entitled them to the declarations sought; (c) during the pendency of the proceedings, the rights of the appellants could not be and had not been affected by the 1977 amendments to the original 1971 Law, as there were neither express words nor a clear indication to that effect in the amending statutes; (d) further, the 1977 amendments were not declaratory statutes and had by their saving provisions (s.15(a) and (b) of the Caymanian Protection (Amendment) Law, 1977 and s.76(1) and (2) of the Caymanian Protection (Amendment) (No. 3) Law, 1977) provided that existing rights under the original Law should be preserved; (e) alternatively, even if the amendments were to be applied to these proceedings, the definition of domicile which they contained was not so substantially different from the common law concept as to deny the appellants the right to Caymanian status; and (f) since the failure to hear the petitions within a reasonable time had not been the fault of the appellants and the court had found that had the case come up for decision before the 1977 amendments, it would have been decided in the appellants” favour, it would have been just to grant the declaration.
The respondent submitted in reply that (a) pending actions could be retrospectively affected by legislation even if the amending enactment did not expressly provide for it if the intention of the legislature were clear by necessary implication and, in any event, the presumption in favour of interpreting laws prospectively did not apply to declaratory statutes such as the two amendments in question; (b) it was clear from the history of the Caymanian Protection Law, as amended up to 1977 and from the language of those amendments that the legislature had intended that they should retrospectively apply to pending actions; (c) at the time of the filing of their petitions, the appellants had as yet acquired no rights and could not rely on either of the saving provisions in the two amending statutes as these applied only to determined or vested rights; (d) the court could not give domicile its common law interpretation, either with respect to the original 1971 Law or its subsequent amendments, as not only did these Laws provide a statutory definition but the court was obliged to apply that definition as interpreted and established by the Court of Appeal in two precedent cases; and (e) the statement of the Grand Court that it would nave decided the case in the appellants” favour if the hearing had taken place before the 1977 amendments, was obiter and could not be relied upon.
Held, dismissing the appeal:
(1) The Grand Court had been correct in finding that the law to be applied in this case was that in force at the time of the hearing and not as
it stood when the petition was filed in 1972. The court was therefore obliged to apply the Caymanian Protection Law, 1971 as revised and amended up to the time of the hearing in 1982 (page 417, lines 6–13; page 447, line 38 – page 448, line 10).
(2) It had been justified in this finding by the fact that the legislature had shown a clear and unequivocal intention to affect pending actions under this law by (a) the language used in the two 1977 amendments (the Caymanian Protection (Amendment) Law, 1977 and the Caymanian Protection (Amendment) (No. 3) Law, 1977) and its express objective of avoiding doubt with respect to interpretation; and (b) the provision that the definition of domicile from an earlier but repealed law (the Immigration Restriction (British Subjects) Law) was to be incorporated into the original Law and should ‘be deemed to be and always to have been the proper definition.’ Further, although there was a general presumption against retrospective interpretation of laws, since the amendments sought to regulate matters pertaining to citizenship and immigration, they were by nature declaratory and their function as such was to state the law as it was meant to be interpreted with both retrospective and prospective application (page 421, lines 1–14; page 446, line 28 – page 447, line 5; page 449, line 39 – page 450, line 14).
(3) The filing of a petition for a declaration of domicile under the Caymanian Protection Law, 1971, s.15(1)(b), as amended, did not confer upon the appellants a right to Caymanian status. Hence the saving provision in the Caymanian Protection (Amendment) Law, 1977, s.15(d) which preserved the ‘rights of any person with respect to Caymanian status’ existing before the amendment, did not assist the appellants. Similarly the provision in s.3 of the Caymanian Protection (Amendment) (No. 3) Law, 1977 that ‘nothing...
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