Brooks v Browne

• Jurisdiction: Antigua and Barbuda
• Court: Court of Appeal (Antigua and Barbuda)
• Judge: Lewis, J.
• Judgment Date: 10 May 1960
• Neutral Citation: AG 1961 CA 2
• Docket Number: Appeal No. 7 of 1960
• Date: 10 May 1960

Supreme Court of the Windward and Leeward Islands. Court of Appeal

Lewis, J.

Appeal No. 7 of 1960

Brooks

and

Browne

Appearances:

H. LOCKHART for the appellant

E. HARNEY for the respondent

Family law - Children — Maintenance — Arrears — Magistrates Code of Procedure Act, Cap. 61 s.87

Facts: The issue in this case was whether the appellant was entitled to more than six months arrears of maintenance money. Evidence revealed that the respondent had not paid maintenance for his child as ordered by the courts for over 250 weeks. Trial judge ruled that the appellant was only entitled to six months of arrears.

Held: According to s.87 of the Magistrates’ Code of Procedure Act, all proceedings must be brought within six months from the time when the matter of charge arose. As such, the appellant by bringing the action in December 1959 for the respondent's failure to abide by a court order made in June 30, 1954, and was not entitled to more than six months of arrears.

Lewis, J.

1 This is an appeal against an order of the Additional Magistrate of District “B” dated 16 ^th December, 1959 in which he ordered the respondent to pay the sum of $18.72 and $15.72 costs for arrears of maintenance of a child of the appellant of whom the respondent had been declared to be the putative and in respect of whom had been ordered on June 30, 1954 to pay a sum of 72c.

2 The facts are shortly these. After the order for maintenance had been made, the appellant left the Colony in October 1954 without making any provision for the payment of the weekly sum of 72c. He remained away from the Colony for some considerable time and only returned on December 3, 1959. During the period of his absence no payments under the order of June 30, 1954 were made. The appellant accordingly filed a complaint before the magistrate seeking to cover arrears under the maintenance order from October 1954 to 3 ^rd December 1959 a period that she calculated as being 260 weeks (but it is somewhat longer than this) at the rate of 72c. per week. The total sum sought to be recovered was $187.20.

3 At the close of the case for the complainant before the magistrate, counsel for the defendant referred to evidence in contradiction of the complainant's evidence, but submitted that the complainant was not entitled to recover more than six months arrears of maintenance, which the defendant was ready and willing to pay. The magistrate accepted this argument and made an order for payment by the defendant of six months arrears amounting to $18.72.

4 The complainant being dissatisfied with the magistrate's decision has appealed therefrom on two grounds viz.

• ‘(a) that the decision is unreasonable and cannot be supported having regard to the evidence and

• (b) that the decision was erroneous in point of law in that the learned magistrate erred in coming to the conclusion that he had jurisdiction to allow only six months arrears of maintenance.”

5 There is no merit in the first ground of appeal, for it is clear that the magistrate accepted the complainant's evidence that the respondent had not made any payment under the maintenance order during his absence from the Colony, and in any event, the respondent by not calling evidence to contradict this and admitting that the appellant was entitled only to six months arrears which he was willing to pay thereby admitted that he was not denying the appellant's evidence that he was in this appeal therefore is for what period is the respondent legally liable to make payments under the maintenance order?

6 Section 87 of the Magistrate's Code of Procedure Act, Cap. 61 (hereinafter referred to as ‘the Act’) lays down a period of limitation within which proceedings must be brought under the Act. This section reads as follows:–

“87. In all cases where no time is specially limited for making any charge in the Act or law relating to the particular case such charge shall be made within six months from the time when the matter of the charge arose.”

7 The complaint brought by the complainant before the magistrate to enforce the order of maintenance was laid under section 135 of the Act, and it follows that unless the appellant can show that there is some time “specially limited” in the words of section 87) for making her complaint for the enforcement of the maintenance order that the six months period of limitation prescribed by section 87 will apply and prevent her from recovering arrears for more than six months.

8 Counsel for the appellant contends that section 87 of the Act does not apply to...