Bacongo v Department of Environment et Al

• Jurisdiction: Belize
• Judge: Carey. J.A.,Rowe, P.,Mottley, J.A.,Carey, J.A.
• Judgment Date: 23 October 2003
• Neutral Citation: BZ 2003 CA 3
• Docket Number: No. 1 of 2003
• Court: Court of Appeal (Belize)
• Date: 23 October 2003

Court of Appeal

Rowe, P.; Mottley, J.A.; Carey, J.A.

No. 1 of 2003

Bacongo

and

Department of Environment et al

Appearances:

Ms. Lois Young, S.C. for appellant.

Mr. Elson Kaseke, Solicitor General with Ms. Minette Hafiz for the Department of Environment.

Mr. Michael Young, S.C. for Belize Electric Co. Ltd.

Practice and procedure - Order 53, rule 3(10) Rules of the Supreme Court — Appeal to correct, vary, amend or set aside judgment of the Supreme Court — Section 19(1) of the Court of Appeal Act — Application to appeal dismissed.

Carey. J.A.

1 The appellant has been granted conditional leave to appeal to Her Majesty in Council by an order of this Court dated 11 April 2003. This follows the dismissal by this Court of an appeal against a judgment of the Chief Justice in which he refused to set aside a decision made by the National Environmental Appraisal Committee made 9 November 2001 to grant environmental clearance to the Macal River Upstream Storage Facility. The appellant has formed the view that the second respondent, the Belize Electric Co. Ltd., will now proceed with the construction of the dam at Chalillo.

2 The matter now before us is an application for an injunction to enjoin Belize Electric Co. Ltd (BECOL) “from proceeding with or taking an steps or any further steps, in the construction of or leading to construction of the Macal River Upper Storage Facility, commonly known as the “Chalillo Dam Project”.

3 On 20 June, in refusing the application, we intimated that we would put our reasons in writing and hand those down at a later date. This we now do.

4 The motion on behalf of the appellant for an injunction against BEL was silent as to the legal authority being invoked to support such an application. But all was revealed in Ms. Young's careful skeleton arguments because she laid out three statutory provisions as under:–

• (i) Section 19(1) of the Court of Appeal Act, Chapter 90 of the Laws of Belize, Revised Edition 2000.

• (ii) Section 27(1) of the Supreme Court of Judicature Act, chapter 91 of the Laws of Belize, Revised Edition 2000, and

• (iii) Order 53 rule 3(10) of the Rules of the Supreme Court of England and Wales as incorporated by virtue of section 12 of the Court of Appeal Act, Chapter 90 of the Laws of Belize Revised Edition 2000 and

• (iv) a common law base, that is, an implicit or implied jurisdiction to promote justice by ensuring (a) that the appeal, if successful, is not nugatory, or (b) the duty to preserve the subject matter of an appeal.

We were invited to circumnavigate these bases of jurisdiction by Ms. Young, S.C. who, it must be said, deployed her arguments with no little skill and great passion. Attractive though they were, we do not think they are well founded, and were not therefore able to accede to them.

5 We begin with section 19(1) of the Court of Appeal Act, Chapter 90 of the Laws of Belize, Revised Edition 2000. It provides as follows:

“19(1) On the hearing of an appeal under this Part, the Court shall have power to:

• (a) confirm, vary, amend or set aside the order or make any such order as the Supreme Court or the judge thereof from whose order the appeal is brought might have made, or to make any order which ought to have been made, and to make such further order as the case may require…”

The matter before us is plainly not an appeal “under this Part,” that is, an appeal from a judge of the Supreme Court which requires us, in effect to correct some order of the judge in the Court below, by varying, amending or setting it aside. In the event that we are agreeing with the judge below, we are empowered to confirm his order, that is, make the same order he made. If we are, on the other hand, varying or setting it aside, we are empowered to make such order as he ought to have made. It is in that sense, I would suggest that this Court has the power to make orders which the judge below, could correctly have made. That interpretation is in accord with the plain meaning of the words in the section.

It is true to say that we have completed the hearing of the appeal proper from the judgment of the Chief Justice and have ourselves rendered a judgment. In the matter before us, we are not being asked to confirm, vary amend or indeed make any order which the trial could properly have made in the hearing of the judicial review proceedings before him. In sum, the words in section 19(1) are, in no manner or means,...