BETWEEN 1. NATIONAL TRANSPORT CLAIMANTS SERVICE LTD. 2. GUINEA GRASS TRANSPORT LTD. 3. LADYVILLE TRANSPORT LTD. 4. HATTIEVILLE TRANSPORT LTD.

Transcription

1 THE SUPREME COURT OF BELIZE 2008 CLAIM NO. 728 OF 2008 BETWEEN 1. NATIONAL TRANSPORT CLAIMANTS SERVICE LTD. 2. GUINEA GRASS TRANSPORT LTD. 3. LADYVILLE TRANSPORT LTD. 4. HATTIEVILLE TRANSPORT LTD. AND 1. THE TRANSPORT BOARD. DEFENDANTS 2. CHIEF TRANSPORT OFFICER. Mrs. Lisa Shoman S.C., for the claimants. Ms. Lois Young S.C., for the defendants. AWICH CJ Ag D E C I S I O N 1. Notes: An application for court order to dismiss claim against public authorities on the ground that notice of claim was not given under s:3 of Public Authorities Protection Act, Cap. 31; and on the ground that circumstances have changed since the claim was filed. 2. This decision is in the joint interlocutory application dated , by the defendants, the Transport Board and the Chief Transport Officer. In the application the defendants ask for court order dismissing the substantive claim brought by the four claimants. Their 1

2 first ground was that they were and are still public authorities; and that under S: 3 of the Public Authorities Protection Act, cap 31, a prior notice must be given to them before a claim is brought one month after, against them. They said that no notice of this claim had been given to them before the claim was filed at court on The second ground was that because of the long delay in concluding the claim circumstances have changed. 3. In the alternative, the defendants in their application asked for an order discharging an interim injunction order made by this court on , restraining the defendants until determination of the claim or until further order, from proceeding to grant road service permits for operating omnibuses on routes in parts of the northern zone of the country, for which the defendants had not yet granted permit for the period The ground given by the defendants for the alternative order was that, because of the delay in concluding the trial of the claim, circumstances have changed, the buses on the northern routes are now overcrowded, and some other operators without permits, snipers, are unlawfully carrying passengers. 2

3 4. On the case file there is another joint interlocutory application dated ; it has been filed by three of the claimants, National Transport Service Ltd; Guinea Grass Transport Ltd., and Ladyville Transport Ltd. In the application the claimants ask for court order allowing three amendments to the claim filed on The first proposed amendment was to include in the claim, judicial review of the decisions of the Transport Board and the Chief Transport Officer in respect of the issuance of road service permits for the year to the claimants for Ladyville and for the Western and Southern routes. They may have meant the year , not The second proposed amendment was to include in the claim, judicial review of the decisions of the defendants refusing permits to the claimants for road service in Ladyville, Western route and Southern routes, for the year ; and granting the permits to others. The third proposed amendment was to include a request for the issuing of certiorari and quashing orders in regard to the decisions referred to in the first and second proposed amendments. The amendments in effect seek to bring into this claim filed in 2008, decisions taken in regard to road service permits for the permit years stated as year

4 5. I decided to hear first, the first application filed on , by the defendants, and depending on the outcome, I would proceed to hear the application filed on , by the claimants. It would not be necessary if my decision went against the claimants, for me to hear the claimant s application for permission to amend their claim. 6. Regretably the substantive judicial review claim for which permission was granted on , and in which the two interlocutory applications have been made, has not progressed in the manner anticipated. The permission granted included an order that the judicial review claim be filed within 14 days. The order restated R. 56.4(11) of the Supreme Court (Civil Procedures) Rules The time stipulated in the court order was not complied with, and time was extended by permission of court. Several additional affidavits for both sides were allowed to be filed late. Several adjournments were requested by both sides during the first hearing and were granted. On one occasion the Registry did not send notice of hearing to the defendants; on two occasions the dates of hearing at the Supreme Court clashed with engagement of counsel at the Court of Appeal. On the last occasion adjournment was sought and granted on the ground 4

5 that counsel for the claimants was attending as a senator, a sitting of the Senate. Swift proceeding intended in judicial review claim has been lost. 7. On hindsight, I may have too readily granted adjournments. The two applications on the case file have found place in these proceedings because of the extended time taken to have the substantive judicial review claim for which permission was given concluded. 8. The claim itself without the proposed amendments, concerned decisions taken in October The subject matters of the decision were road service permits for the period 19 th October 2008 to 18 th October That period has past. In the event the claimants succeeded in their claim, the court will no longer be able to grant all the reliefs prayed for because some reliefs are now impossible. Declaratory reliefs and damages may be possible, but reliefs that are injunctive in nature in regard to road service permit year , are no longer possible. Omnibus services for which permits were granted have already been carried out for the period in question namely,

6 9. Determination The application of the defendants for the main order dismissing the claim altogether raises the question of statutory interpretation. The defendants say, they are public authorities, and that to commence this claim the claimants ought to have given notice to the defendants one month prior, under s: 3 of the Public Authorities Protection Act; notice was not given at all by the claimants, so the claim should be dismissed. 10. The claimants agree that the defendants are public authorities. However, they contend that: (1) giving notice under s: 3 of the Public Authorities Protection Act does not apply to claims for judicial review and (2) in any case, the many complaints made by the claimants to the defendants, and the case papers commencing proceedings were sufficient notice, they disclosed all the information that would be supplied in notice under s: 3 of the Public Authorities Protection Act. 11. Section 3 of the Public Authorities Act states: 6

7 3(1) No writ shall be sued out against, nor a copy of any process be served upon any public authority for anything done in the exercise of his office until one month after notice in writing has been delivered to him, or left at his usual place of abode by the party who intends to sue out such writ or process, or by his attorney or agent, in which notice shall be clearly and explicitly contained the cause of the action, the name and place of abode of the person who is to bring the action and the name and place of abode of the attorney or agent. (2) No evidence of any cause of action shall be produced except of such as is contained in such notice, and no verdict shall be given for the plaintiff unless he proves on the trial that such notice was given, and in default of such proof the defendant shall receive in such action a verdict and costs. 12. According to s: 3 (1), giving notice is required only in regard to claims arising from acts or omissions that are, in the exercise of office, The nature of an act or omission in the exercise of office has been explained in, Eurocaribe Shipping Services Ltd. v Attorney General and Others, Supreme Court Claim No. 287 of Although it was not contended that the decision the subject matter of the substantive claim were not decisions in the exercise of office, I 7

8 had to consider the point. I concluded and confirmed that the decision made by the Transport Board and the Chief Transport Officer in October 2008, were made in the exercise of office, and that notice under s: 3 of the Public Authorities Protection Act was required to bring a claim arising from the decisions. 13. The main question raised in this application under s: 3 of the Act, has been decided conclusively by the Court of Appeal of Belize in the case of Castillo v Corozal Town Board and Acosta 1 BZ LR 365. In the case the Court of Appeal held that prior notice of one month to Corozal Town Board, a public authority, was required before the claim was commenced at court, and that giving notice and proof that notice had been given were mandatory. The Court of appeal dismissed the appeal and upheld the order of the trial court dismissing the claim for damages against Corozal town Board. At Page 368, Sir John Summerfield, President of the Court said this about the section: It makes provision for two important matters. Section 3(1) makes provision for a mandatory condition precedent to the institution of a suit against a public authority (as defined), namely the delivery of the notice in writing in the terms stipulated. 8

9 Compliance with that condition precedent is wholly within the control of the would be plaintiff. This measure is obviously designed to protect the public interest. Section 3(2) gives teeth to section 3(1). It provides for proof at the trial that such notice was given in the terms required, in default whereof judgment is to be entered for the defendant with costs. That provision is also mandatory. 14. From that, I am obliged to decide that formal notice in writing, specifying the cause of action, the names and addresses of the claimants, and name and address of their attorney ought to have been given one month prior to commencing this substantive claim. Informal communication and informal information obtained by the defendants otherwise cannot be deemed notice under s: 3 of the Act. 15. In the alternative, the claimants contend that notice under s: 3 of the Public Authorities Act was not required in a judicial review claim or a constitutional claim. Learned counsel Ms. Lisa Shoman S.C., for the claimants, relied on the words. writ, in the clause: No writ shall be sued out against nor a copy of any process be served upon any public authority. She submitted that a writ issues only in action (now a 9

10 general claim), not in a Crown side proceeding. She contrasted a writ with a fixed date claim (formerly originating summons). 16. The short answer is that s: 3 mentions writ and any process. A court process is any document by which a judicial process is instituted; an original process is a court document that compels the appearance of the defendant. So by stating that, no writ shall be sued, nor a copy of any process be served, section 3 includes a claim that may be commenced by a fixed date claim. A constitutional claim may be excluded from the requirement for notice not because of the court process by which it is commenced. There is a difference between a constitutional claim and a judicial review claim. 17. In the Eurocaribe case learned Chief Justice Conteh held that notice under s: 3 of the Public Authorities Protection Act was required in claims including judicial review claims. I agree. 18. My decision in the application dated , by the Transport Board and the Chief Transport Officer, is that the application is granted on the ground that the claimants ought to have given notice 10

11 under s:3 of the Public Authorities Protection Act to the defendants, one month before the claimants commenced this claim against the defendants. The claim dated , of National Transport Ltd., Guinea Grass Transport Ltd., Ladyville Transport Ltd., and Hattieville Transport Ltd., is dismissed. The interim orders including the injunction order, made on , are discharged. 19. It is not necessary to decide the question whether the alternative order for discharge of the injunction order made on , may be made. 20. The claimants shall pay the costs of the defendants. 21. Delivered this Thursday the 27 th day of January 2011 At the Supreme Court Belize City Present to note judgment are: Mr. A Sylvester for the claimants respondents; Miss M. Perdomo for the defendants applicants; Sam Lungole Awich Acting Chief Justice Sam Lungole Awich Ag. CJ 27 th January