More on the Smith vs Selby case

We continue our consideration of the Caribbean Court of Justice (CCJ) decision in Katrina Smith v Albert Selby [2017] CCJ 13 (AJ) which addresses the question of qualification as a spouse under the terms of the Succession Act, Cap. 249, for the purpose of inheritance of a deceased partner’s estate.

In last week’s article, we had looked at the rules of statutory interpretation and the method adopted by the trial judge, Court of Appeal and ultimately the CCJ in coming to its conclusion. In brief, section 2(3)(a) defines“spouse” as including “(a) a single woman who was living together with a single man as his wife for a period of not less than five years immediately preceding the date of his death;” and “(b) a single man who was living together with a single woman as her husband for a period of not less than five years immediately preceding the date of her death.”

The CCJ examined other surrounding sections of the Act which pertain to the disinheritance of a married spouse who has not cohabited with the deceased for a period of at least five years prior to the date of death as well as the ability of a cohabiting partner who has not met the five-year threshold to apply as a dependent. The dependency section makes absolutely no mention of the word“single” either in relation to the deceased or the dependent partner.

The CCJ interpreted this as Parliament’s intention to provide for the survivor regardless of marital status. No resort was had to Hansard which, since the decision in Pepper (Inspector of Taxes) v Hart [1993] A.C. 593 can be employed as an aid to statutory interpretation especially since the CCJ had asked counsel for assistance on the very point and which no one had thought to provide.

Immediately from this point, the CCJ jumps to the conclusion that while the definition of“spouse” “could be interpreted” as erecting a barrier, that barrier “does not operate if the deceased is single immediately preceding death.” They went on to state that it was of “no difference whether the deceased had been divorced or widowed for more or less than five years.” Is that not exactly what this entire case is about? Is that not the reasoning that we were expecting in the course of this decision?

Having come to its conclusion, the CCJ then resorted to hypothetical situations: the single woman and a married man who gets divorced but dies one day before his marriage to the single woman is scheduled to take place versus the same scenario except that the man dies one day after the wedding. The CCJ’s reasoning, using its own hybrid rule of statutory interpretation to give “the right balance,” was that in the absence of the deceased partner being married to someone else at the date of death, then the cohabiting partner (affectionately or otherwise known as the “outside” woman or man in Caribbean parlance) inherits as long as they have lived together with the deceased for the five-year period up to the date of death.

The CCJ pointed out that the trial judge had“finessed” the definition of the word “single” in order to arrive at the conclusion that he wanted. Humbly, the CCJ appears to have engaged in quite a bit of finessing in the course of its own decision. Without explaining how or why, claiming that they resort once again to the natural and ordinary meaning of the words of section 2(3), while disavowing the approach of the trial judge and agreeing with the conclusion of the Court of Appeal as to the definition of single, the CCJ comes to the conclusion that it did. I literally cannot find the ratio decidendi of this case. Mind you, neither Smith’s attorneys nor Selby’s attorneys actually raised this issue of singlehood.

An English language student would perhaps tell you that the words “immediately preceding the date of death” relates to the calculation of the five-year period. The words “single woman who was living together with a single man” is one phrase. The use of the continuous tense, i.e. the word “living” relates to the duration and/or continuation of the status of the cohabiting parties. Nowhere in this judgment does the CCJ provide any discourse on the actual construction of the words and phrases as they relate to one another and or how they are used in the sentence.

If you will recall the three rules: (1) literal (2) golden and (3) mischief. The literal rule first sees the application of the plain and ordinary meaning of the words used and the golden rule or purposive interpretation is only applied where the literal rule would give an absurd result. It would be great if someone could identify what would be absurd about concluding that the parties must both be single for the full five years.

One understands that neither the trial judge nor the CCJ wished to turn the appellant away empty handed, but this affects the rights of so many other persons inclusive of estates which are already in the midst of distribution, that more explanation and clearer reasoning would have been singularly helpful. After four decades,we now have confusion. As a litigator, one looks forward to the spawning of litigation with people trying to distinguish their case from the facts of Smith v Selby. Hopefully any such litigation would lead to the refinement of this decision by the CCJ. That court can also overrule itself. However, it would be best if Parliament did some work and clarified the position on this section by way of amendment or otherwise and sooner rather than later.

Source: (Alicia Archer is an attorney-at-law in private practice)

One Response to More on the Smith vs Selby case

  1. Tony Webster September 29, 2017 at 8:21 pm

    Brilliant stuff, lady….err…Your Honour, because you have every expectation to walk serenely and bravely where only those who discard “pounds of flesh” laws, dare tread. Absolutely brilliant!

    Sorry too that you put down your brass , tacky, microphone…as you are greatly missed.



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