Althea Maynard v Eastern Caribbean Asset Management Corporation
| Jurisdiction | Antigua and Barbuda |
| Judge | Blenman JA |
| Judgment Date | 13 February 2020 |
| Neutral Citation | AG 2020 CA 1 |
| Date | 13 February 2020 |
| Docket Number | ANUHCVAP2018/0047 |
| Court | Court of Appeal (Antigua and Barbuda) |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL
The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal
The Hon. Mde. Louise Esther Blenman Justice of Appeal
The Hon. Mde. Gertel Thom Justice of Appeal
ANUHCVAP2018/0047
(as receiver of ABI Bank Ltd)
Dr. David Dorsett for the Appellants
Ms. Kamilah Roberts with her Mrs. Andrea Roberts-Nicholas for the Respondent
Civil Appeal — Interlocutory Appeal — Statutory Interpretation — Banking Act of Antigua and Barbuda — Section 144(1)(c) of the Banking Act — Purposive interpretation — Whether learned judge erred in staying the proceedings against a receiver pursuant to section 144(1)(c) of the Banking Act — Section 40 of the Interpretation Act — Application of definition where contrary intention appears
On 23 rd July 2008 Mrs. Althea Maynard and Mr. Nathaniel Maynard (“the appellants” or “the Maynards”) obtained a loan from ABI Bank Ltd (“ABI Bank”). In 2016, The Eastern Caribbean Central Bank (“ECCB”), by Notice published in the Antigua and Barbuda Official Gazette, revoked the banking licence granted to ABI Bank preventing it from carrying on banking business in Antigua and Barbuda effective 5 th January 2016. Ms. Samuel-Fields was appointed as receiver and subsequently, the Eastern Caribbean Asset Management Corporation (“ECAMC”) was appointed as receiver of ABI Bank by the ECCB.
The Maynards filed a fixed date claim form with affidavit in support on 17 th September 2018 against ECAMC as receiver of ABI Bank seeking, among other remedies, an account of monies paid on the loan and an account of the parties' interest in certain lands. The ECAMC filed an application for a stay of proceedings (“the application”) pursuant to section 144(1)(c) of the Banking Act claiming that by virtue of ABI Bank being in receivership, and a receiver having been appointed, it could not be sued. The learned judge granted the order staying the whole of the proceedings.
The appellants, being dissatisfied with the learned judge's decision, have appealed. The appellants argued that at the time the claim was filed, ABI Bank was not a ‘licensed financial institution’ or ‘licensed financial holding company’ within meaning of section 2 of the Banking Act, since its licence was revoked. Consequently, they contended, ECAMC could not avail itself of the rights, etc. under section 142(1) of the Banking Act and by extension the protection against litigation afforded by section 144(1)(c) of the Banking Act.
The main issue that arises to be determined is whether the learned judge erred in concluding that section 144(1)(c) of the Banking Act, which provides that all legal proceedings against a licensed financial institution or licensed financial holding company are stayed pending leave of the court, was applicable and in so concluding, granted a stay of proceedings pursuant to same.
Held: dismissing the appeal and awarding costs to ECAMC in the court below to be assessed if not agreed within 21 days and on the appeal, two-thirds of the costs assessed in the lower court, if not agreed within 21 days, that:
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1. The court, in interpreting statutes, has to give regard to the intention of Parliament when the specific act was passed. Where the words, read in their plain and literal sense and in the full legislative context, accord with the legislation's object and purpose, then there is no need to go beyond their ordinary meaning. However, where applying the strict and literal approach, would produce an absurd and undesirable result, the court is permitted to apply a purposive construction to enable the object and purpose of the legislation to be fulfilled.
Pepper v Hart [1993] A.C. 593 applied; Global Education Providers Inc. v The Honourable Petter Saint Jean et al DOMHCVAP2012/0009 (delivered 4th May 2018) followed.
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2. In interpreting statutes, the court must consider the words in their immediate context, the legislative context and the legislation's object and purpose in order to give effect to Parliament's intention. The object and scheme of the Banking Act, in relation to banks in receivership, is to protect them against legal action thereby allowing the receivers to fulfil their role without legal interruption. Section 144(1)(c) mandates that all legal proceedings against a licensed financial institution or licensed financial holding company be stayed upon the appointment of a receiver pending leave of the court. To require the receiver to have a licence to be afforded protection would effectively mean that the protection contemplated by section 144(1)(c) would not be afforded to any financial institution under receivership as their licences would have been revoked automatically.
Part X of the Banking Act 2015, Act No. 10 of 2015, Laws of Antigua and Barbuda applied; Global Education Providers Inc. v The Honourable Petter Saint Jean et al DOMHCVAP2012/0009 (delivered 4th May 2018) followed; Asiyah Grant v Javier Maduro Douglas BVIHCVAP2019/0001 (delivered 13th November 2019, unreported) followed; Douglas (Clayton) v The Police (1992) 43 WIR 175 followed.
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3. The aim of statutory definitions is to avoid frequent repetitions when describing the subject matter to which the word or phrase is intended to apply. These definitions are often found in the interpretation section of a statute and are to be understood and used for the purpose of that particular Act. However, a statutory definition does not apply if, in light of the legislative context, the contrary intention appears. Section 2 of the Banking Act which defines ‘licensed financial institution’ and ‘licensed financial holding company’ cannot override the clear and extensive words in the body of the statute in light of the aforementioned object and purpose of the legislative framework.
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4. In this case, where the definition section seems to support otherwise than the purposive meaning of the specific statutory provision of the Act, the latter should be interpreted to give effect to the purpose and object of the Banking Act; that is, to bring the bank under the supervision and control of the receiver. It could not have been the intention of Parliament that receivers have no protection against litigation, simply because the bank no longer had a licence due to its revocation. Accordingly, the word “formerly” must be read into the definitions in order to make the legislation workable in relation to banks that are in receivership.
Section 2 of the Banking Act 2015, Act No. 10 of 2015, Laws of Antigua and Barbuda considered; Section 40(2) of the Interpretation Act, Cap. 224 of the Laws of Antigua and Barbuda applied; Global Education Providers Inc. v The Honourable Petter Saint Jean et al DOMHCVAP2012/0009 (delivered 4th May 2018) followed; Asiyah Grant v Javier Maduro BVIHCVAP2019/0001 (delivered 13th November 2019, unreported) followed.
This is an interlocutory appeal by Ms. Althea Maynard and Mr. Nathaniel Maynard (“the Maynards” or “the appellants”) against the decision of the learned judge, the Honourable Rita Joseph-Olivetti [Ag.] in which she stayed the claim that the Maynards had brought in the court below against the Eastern Caribbean Asset Management Corporation (“ECAMC”) as receiver of ABI Bank Ltd (“ABI Bank”). The learned judge held that by virtue of section 144(1)(c) of the Banking Act 2015 1 (the “Banking Act”) ECAMC was protected. The appellants argued that the claim which they brought in the High Court was not one which could be stayed pursuant to the Banking Act. In addition, the judge ordered costs against the Maynards. They have appealed against the judge's decision. The appeal is resisted by the ECAMC.
On 23 rd July 2008, Mr. and Mrs. Maynard obtained a loan from ABI Bank. ABI Bank fell into difficulties and The Eastern Caribbean Central Bank (“ECCB”), the organisation that provides regulatory control and supervision over banks in the Eastern Caribbean, appointed Ms. Megan Samuel-Fields on 27 th November 2015 as receiver of ABI Bank.
In 2016, the ECCB, by Notice published in the Antigua and Barbuda Official Gazette, revoked the banking licence granted to ABI Bank thereby preventing it from carrying on banking business in Antigua and Barbuda effective 5 th January 2016.
Subsequently, the ECAMC was appointed as receiver of ABI Bank on 18 th July 2017, replacing Ms. Megan Samuel-Fields as receiver. It should be noted that Ms. Samuels-Fields is the Chief Executive Officer of the ECAMC.
The Maynards filed a Fixed Date Claim Form on 17 th September 2018 against ECAMC, as receiver of ABI Bank, seeking the following remedies:
“(1) An order that the Claimants' loan account, a/c#21318835, be credited with the sum of $2,200.00/day from 24 th July 2008 to 25 th August 2011.
(2) All further proper accounts, inquiries and directions for the proper determination of the Claimants' interest in land being registered in the Land Registry as Registration Section: Sutherlands; Block 64 1892D; Parcels 39, 205 and 206.
(3) Costs;
(4) Damages;
(5) Any other relief that the court deems fit pursuant to section 20 of the Eastern Caribbean Supreme Court Act.”
On 4 th October 2018, the ECAMC filed an application for a stay of the Maynards' proceedings (“the application”) pursuant to section 144(1)(c) of the Banking Act claiming that by virtue of ABI Bank being in receivership, it could not be sued.
The learned judge, upon hearing the application, ordered that the whole proceedings be stayed pursuant to section 144(1)(c) of the Banking Act.
Dissatisfied with the decision of the learned judge, and having obtained the required leave to appeal, the Maynards appealed to this Court to set aside the order of the learned judge.
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