Friday et Al v The Attorney General of St. Vincent Oand the Grenadines
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Thom, J |
| Judgment Date | 31 October 2007 |
| Neutral Citation | VC 2007 HC 45 |
| Docket Number | 179 of 2007 |
| Court | High Court (Saint Vincent) |
| Date | 31 October 2007 |
High Court
Thom, J.
179 of 2007
Mr. Bertram Commissiong Q.C., Mrs. Kay Bacchus-Browne for the claimants/respondents.
Mr. Camillo Gonsalves for the first defendant/applicant, Mr. Anthony Astaphan S.C. and Mr. Graham Boilers for the second and fifth defendants/applicants, Mr. Hans Matadial for the Third defendant/applicant, Mr. Arthur Williams for the fourth defendant/applicant, Mr. Richard Williams for the sixth defendant/applicant.
Constitutional Law - Fundamental rights and freedoms — Freedom of movement — Deprivation of property — Charge for admission to ferry terminal — Finding that charge was a tax and was not unconstitutional.
Judicial review - Irregularity — Procedural impropriety — Whether the defendants acted in excess of powers under s.72 of the Port Authority Act — Finding that the grounds were not frivolous — Viable issues for trial.
This is an application to strike out the claimants' claim for constitutional redress and judicial review.
On May 31, 2007 having obtained leave of the Court on the 17th day of May 2007, the claimants applied to the Court for constitutional redress and judicial review.
It is not disputed that with effect from the 16th day of April 2007, the second defendant the Saint Vincent and the Grenadines Port Authority commenced collection of EC$1.00 from each person travelling by ferry from the Kingstown Ferry Terminal.
On April 27, 2007 there was a demonstration against the collection of the EC$1.00 organised by the National Democratic Party, Her Majesty's Loyal Opposition in the Parliament of Saint Vincent and the Grenadines at which time the 3rd and 5th claimants alleged their fundamental rights were contravened by the 6th and 5th defendants respectively.
On the 4th day of June 2007 S.R.O. No. 24 of 2007 was Gazetted in the Official Gazette of Saint Vincent and the Grenadines. S.R.O. No. 24 of 2007 authorises the Second defendant to collect a sum of EC$1.00 for admission onto the Ferry Terminal.
The claimant's claim is based on the alleged illegal action of the Second defendant in collecting the EC$1.00 prior to the enactment and publication of S.R.O. No. 24 of 2007, the alleged unconstitutionality and illegality of S.R.O. No. 24 of 2007 and the alleged assault by the 6th and 5th defendants on the 3rd and 5th claimants respectively..
The claimants in their claim seek several declarations. These can be put into three groups being:
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(a) Contravention of their fundamental rights contrary to sections 1, 6, 12 and 13 of the Constitution as a result of the collection of the EC$1.00, the implementation of S.R.O. No. 24 of 2007 by the Second defendant.
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(b) Contravention of the fundamental rights of the 3rd and 5th claimants by the alleged assault of the 6th and 5th defendants respectively contrary to sections 5, 9, 10, 11 and 12 of the Constitution.
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(c) The alleged unconstitutionality and illegality of S.R.O. No. 24 of 2007.
The defendants all filed applications to strike out the claimant's statement of case.
The claimants through their counsel learned counsel Mrs. Kay Bacchus-Browne agreed that the Claim against the 4th defendant the Commissioner of Police should be struck out.
The 1st, 2nd and 5th defendants alleged in their application that the claim should be struck out on the following grounds:
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(a) The statement of case does not disclose any reasonable grounds for bringing the claim.
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(b) The claimants have alternative adequate means of redress under the Saint Vincent and the Grenadines Port Authority Act and/or the Criminal Code of the Laws of Saint Vincent and the Grenadines.
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(c) The 1st and 2nd claimants represent persons who do not have the same or similar interest.
The 3rd defendant in his application alleged that the claim should be struck out on the following grounds:
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(a) The statement of case does not disclose any reasonable cause of action and is an abuse of the process of the Court.
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(b) No relief is claimed against the Third defendant.
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(c) The Third defendant had also sought an order to expunge from the record the exhibit attached to the affidavit of Daniel Cummings filed on the 18th day of May 2007 the exhibit being minutes of the meeting of the Parliament of Saint Vincent and the Grenadines held on the 16th day of November 2006 showing the Third defendant's response to a question posed by the 2nd claimant. The Third defendant in his submissions stated that this aspect of the application was not being pursued. Therefore, nothing further need be said about that.
It cannot be disputed that the Third defendant is the Minister responsible for Ports in Saint Vincent and the Grenadines. The Third defendant is sued in his capacity as the Minister responsible for Seaports and Airports.
The Sixth defendant in his application alleged that the statement of case should be struck out for the following reasons:
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(a) There is no reasonable ground for bringing the claim, it is an abuse of the process of the Court.
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(b) The Third claimant by pursuing his common law remedies for assault in the Magistrates Court is precluded from pursuing a constitutional motion for the very assault.
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(c) The 3rd claimant has alternative adequate means of redress under other laws.
Under CPR 26.3(1) the Court has power to strike out a statement of case or part of a statement of case. The relevant provisions are Part 26.3(1)(b) and (c). The section reads as follows:
“26.3(1) In addition to any power under these Rules the Court may strike out a statement of case or part of a statement of case if it appears to the court that:–
(a) ……
(b) The statement of case or the part to be struck out does not disclose any reasonable ground for brining or defending a claim.
(c) The statement of case or the part to be struck out is an abuse of the process of the Court and is likely to obstruct the just disposal of the proceedings, or ….”
The principles on which the jurisdiction of the Court is exercised when striking out a statement of case were stated by the Court of Appeal in the case Baldwin Spencer v. Attorney-General of Antigua and Barbuda Civil Appeal No. 20A of 1997. While this case was decided under the 1970 Rules of the Supreme Court the principles remain the same under CPR 2000.
In the Baldwin Spencer case Byron, C.J. stated the principles as follows:–
“In brief the Court is empowered to dismiss an action in a summary way without a trial where the statement of claim discloses no cause of action, or is shown to be frivolous or vexatious or is otherwise an abuse of the process of the Court. This summary procedure should only be used in clear and obvious cases, when it can clearly be seen on the face of it, that a claim is obviously unsustainable cannot succeed or in some other way is an abuse of the process of the court. In one of the cases from Canada on which reliance was placed the standard was expressed in terms that the Claim should not be struck out if there is even a scintilla of a cause of action ( Operation Dismantle v. the Queen (1986) L.R.C. (Constitutional) p. 421).”
Further at page 8 of the Baldwin Spencer case the Learned Chief Justice stated:
“… the operative issue for determination must be whether there is even a scintilla of a cause of action. If the pleadings disclose any viable issue for trial then we should order the trial to proceed but if there is no cause of action we should be equally resolute in making that declaration and dismiss the appeal.”
I shall be guided by the above principles in determining this matter. I will deal with the applications together since the grounds and submissions are essentially the same.
Learned Senior Counsel on behalf of the 1st, 2nd and 5th defendants submitted that the 1st and 2nd claimants cannot seek constitutional redress or judicial review in a representative capacity. Learned Senior Counsel submitted that the provisions of section 16(1) of the Constitution makes it clear that every constitutional complaint must be made personally except in the case of a person detained.
Learned Senior Counsel further submitted that on an application for an Administrative Order under Part 56 of CPR 2000 an applicant must have a sufficient interest. Part 56.2(2) provides for a person who has been adversely affected to apply personally and paragraphs (b) to (f) provides for application by a body or group whose interest has been affected or persons or body who has a right to be heard under the terms of any enactment or the Constitution. A Member of Parliament cannot purport to bring a representative application for judicial review.
Learned Senior Counsel also referred to Part 21.1(2)(b) of CPR 2000 which requires every person in the Grenadines to have the same or similar interest before a representative order can be made or action proceeded with. The mere description of “the people of the Northern and Southern Grenadines” is wholly insufficient. The description does not indicate all of the people have the same or similar interest in opposing the collection of the EC$1.00. Further Part 21.3(1) provides that an order of the Court binds everyone when a representative party represents this includes an order for costs.
Learned counsel for the claimants made no submission in response on this issue save to say that there is no class action before the Court as yet since the application has not yet been heard.
I agree with the submissions made by Learned Senior Counsel on behalf of the 1st, 2nd and 5th defendants both in relation to the claim for Constitutional Redress and Judicial Review. Section 16(1) of the Constitution is very clear on an application to enforce the fundamental rights provisions has to be made by the person alleging the...
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